McCulloch v. Isaac, 2013 BCSC 1319

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McCulloch v. Isaac, 2013 BCSC 1319 Date: 20130725 Docket: 09-1884 Registry: Victoria Between: Leesa Marie McCulloch Plaintiff And Amanda Leigh Isaac Defendant Before: The Honourable Mr. Justice Armstrong Reasons for Judgment Counsel for Plaintiff: E.G. Lau Counsel for Defendant: P. Spinks Place and Date of Trial/Hearing: Kelowna, B.C. August 8 - 10, 2012 Place and Date of Judgment: Victoria, B.C.

July 25, 2013 [ 1 ] On May 8, 2008, the plaintiff was in the process of leaving a parking lot in Salmon Arm, B.C. when her car was struck from behind by the defendant’s vehicle. [ 2 ] The defendant admits liability for the collision. [ 3 ] Notwithstanding the minimal damage to both vehicles, the plaintiff believes she suffered injuries to her neck and low back which continue to affect her four years later. [ 4 ] She is seeking compensation for her injuries, including non-pecuniary damages, loss of future earning capacity, past special damages, loss of income and costs related to her future care. [ 5 ] The defendant advances the view that this was a very modest impact with negligible damage and the plaintiff could not reasonably have been injured to the extent now claimed.

The defendant also alleges that the plaintiff failed to mitigate her damages. I. Evidence A. Ms. McCulloch [ 6 ] The plaintiff was born December 13, 1982, and is now 29 years old. She lives in Salmon Arm with her husband and two children, aged five and seven. [ 7 ] She is currently a homemaker. Before her marriage she last worked in 2002 as a waitress. She also performed cleaning services for her father's renovation business. She said she intended to return to work when her youngest child entered kindergarten in September 2012. 1.

Accident [ 8 ] At the time of the accident, the plaintiff’s mother was a passenger in the car. Both occupants had secured their seatbelts when Ms. McCulloch reversed out of her parking stall and stopped in the traffic lane behind her car; she was preparing to leave the parking lot when she observed a vehicle pulling out from a parking stall behind. This car backed into the lane and struck the back end of her car. The

plaintiff said the collision caused damage to a fairly large area of the bumper of her car. She described the area of damage as fairly large but this did not correspond to the evidence of a small scratch (one to two inches) at the top left of the bumper shown on photographs taken just after the collision. [ 9 ] The defendant testified that she was parked in a spot across from the plaintiff’s car.

She had slowly backed out of her parking spot when she heard the back up sensor in her car sound a warning; she applied her brakes and felt a very minor bump. [ 10 ] The actual damage to the plaintiff’s bumper caused in the collision was much smaller than that described by the plaintiff. The plaintiff did not accept that the impact caused only a small scratch to the top left part of the bumper. [ 11 ] There is an agreed statement of facts dealing with the damage to the vehicle that will be dealt with later in these reasons.

The plaintiff’s description of damage was at variance to the agreed statement of facts. [ 12 ] The plaintiff described her body as moving forward on impact following which she began to feel nauseous and her neck began to stiffen. She felt that the defendant was going quite fast and described the impact as more than a minor bump.

As she drove away from the scene, the plaintiff felt shaken up and drove directly to the hospital where she was seen by a physician. [ 13 ] The plaintiff was cross-examined about a handwritten statement in which she described the defendant’s speed as in the range of 15 to 20 km/h as she backed out and “smashed” into the plaintiff’s car. Counsel suggested she was exaggerating the events of the accident; she denied that her description was an exaggeration and denied overstating the force of the impact. She said she had simply estimated the defendant’s speed. 2.

Injury [ 14 ] A few days after the accident the plaintiff visited her family physician, Dr. Aitchison, where she reported experiencing a stiff neck and low back pain. Dr. Aitchison told her she had soft tissue damage and recommended she see a physiotherapist and do home exercises. He also advised her to obtain massage services and try swimming. [ 15 ] The plaintiff testified that she received massage therapy treatments for almost two years and did pool therapy off and on. [ 16 ] Ms. McCulloch acknowledged that it was important to follow her doctor’s advice in regard to physiotherapy and exercise.

She recognized that physiotherapists have a particular skill and function in the recovery process. She was made aware of the importance of working through pain as part of the healing process. Her first physiotherapist visit was July 2008; she said that was her first opportunity to see a physiotherapist.

The physiotherapist told her it would take six to eight visits and possibly more for her to achieve some return to her pre-accident condition. [ 17 ] The plaintiff said that the physiotherapy treatments on July 16 and August 6, 2008 made her feel worse and she did not take any further physiotherapy treatments. [ 18 ] She was asked about a discussion with her family doctor on July 23 Dr. Aitchison telling her that physiotherapy was the most important treatment she could pursue; she could not remember this exchange. She did recall a general discussion about physiotherapy and its value in aiding her recovery.

Nonetheless she went to one further physiotherapy treatment after July 23. She said she told her doctor she was discontinuing physiotherapy. [ 19 ] She was cross-examined about conversations with her family doctor in August 2008, wherein she appears to have discussed her interest in seeking out physiotherapy. She did not remember such an inquiry.

She said she talked to her doctor many times about physiotherapy aggravating her symptoms and her doctor seemed fine with her decision to discontinue that treatment. [ 20 ] She was asked about a February 12, 2009 conversation with her doctor when she asked for a referral to physiotherapy. She did not remember asking, but acknowledged that Dr. Aitchison referred her for further physiotherapy. [ 21 ] She was asked about her comments to the doctor on February 12, 2009, when she reported that physiotherapy and massage therapy were helpful; she did not remember saying physiotherapy was helpful.

She did not go to physiotherapy notwithstanding obtaining a referral for physiotherapy treatment at that time. [ 22 ] The plaintiff did not recall a March 6, 2009 letter from her doctor to her lawyer discussing the importance of physiotherapy. Nor did she recall telling her doctor she was going to physiotherapy; although Dr. Aitchison’s records reflect this conversation. [ 23 ] Ms. McCulloch acknowledged receiving a referral for physiotherapy with Ms. Johns in July 2009. She said she did not go for that treatment because her previous physiotherapy experience made her feel terrible.

She was asked whether she told her family doctor she wanted a different physiotherapist in September 2009, as was recorded by her family doctor. She could not recall this discussion but agreed that she had received a referral to Ms. Johns; she could not remember a second recommendation to see Ms. Johns. [ 24 ] The plaintiff received some massage therapy for two years but stopped due to cost. She observed that massage therapy provided only temporary relief of her symptoms. [ 25 ] Her doctor recommended that she try swimming once per week and she claimed to have followed a pattern of swimming four times per month.

On cross-examination Ms. McCulloch admitted to attempting swimming only three times. At her January 27, 2011 examination for discovery she described her post accident attempts swim: 215 Q. And did you try swimming on more than one occasion? A. No, no, not really. I swear maybe three times and that was it.

[ 26 ] The plaintiff then said that she could not afford water aerobics. She has done home exercises, stretching and walked intermittently for approximately 15 minutes but she received no other treatments. [ 27 ] After the collision, the only medication she took was Tylenol. [ 28 ] Prior to the accident she did not have pain in either area and described her health as “good”. Since the accident she has continued to have low back and neck pain. [ 29 ] On January 3, 2009, the plaintiff’s husband kicked her in the chest and ribs resulting in her attending the local hospital.

She testified that the pain from this incident lasted three to four months. On cross-examination she conceded that that her rib pain lasted five or six months but she felt that this incident did not have any impact on her neck or back. 3. Employment and training [ 30 ] In 2010 the plaintiff took a five-month course as a nail technician ending in February 2011. This course involved the plaintiff attending school in Vernon (approximately one hour away from her home) five hours per day. She testified that there was not a lot of practical work available.

She sometimes did additional practice outside of her school hours. [ 31 ] Ms. McCulloch said that during her training she was working on people’s nails and that she lost a few days from school as a result of her symptoms. This evidence contradicted her discovery evidence in which she said she did not miss any time from the practical work and that there were enough clients to keep her busy. [ 32 ] She wanted to work full-time after her children were in school but believed the injuries precluded that option.

The plaintiff was referred to her discovery evidence where she said she wanted to restrict her work at home to preserve some work-life balance. She did not want the long hours of work required if she worked at a salon. [ 33 ] She planned to work at a salon but felt that the strain on her back of doing this type of work restricted her opportunities. She made one application to Body Waves Esthetics but declined the position paying $10 per hour because she found that the cost of childcare was too high compared with her expected earnings; accordingly, she abandoned that plan.

She also denied receiving another job offer at Body Waves and testified that she had not planned to do nail technician’s work at her home. In her examination for discovery she had said she wanted to work from home but could not do so because she could not obtain a business license. Also, in her discovery evidence she had said she only wanted a few hours of nail work at home. She testified that this was her intention at that time. Her current intention is to work full-time but her injuries stand in the way of this. [ 34 ] Currently she would like to go back to work part-time at a different occupation. 4.

Activity [ 35 ] Before the accident Ms. McCulloch was an active person who performed all of the domestic chores in the family home. She would bicycle for prolonged periods and could walk for hours. She was a stay-at-home mother and was unrestricted in her household and recreational activity. [ 36 ] Since the accident the plaintiff limits her walking to 15 minute intervals due to worsening symptoms. She does not bicycle now and is limited in her endurance for household chores such as laundry, cleaning and moving heavier objects. She develops pain when mopping, sweeping and vacuuming.

She now does 60% of the housework and her husband does 40%. She said that she does these activities but she becomes stiff afterwards. [ 37 ] Overall, she said she cannot do the things that were part of her pre-accident life. Her mood has negatively changed and her relationships with her husband and children have suffered. B. Mr. McCulloch [ 38 ] The plaintiff's husband, Mr. McCulloch, is an auto mechanic and has been married to the plaintiff for eight years.

He confirmed that since their wedding he was the sole income earner in their home. [ 39 ] He described the plaintiff as having no health problems before the accident. He indicated that the plaintiff suffers from irritable bowel syndrome and anxiety, but the symptoms of those conditions did not hinder her before the accident. He did not recall the plaintiff suffering pain in her low back, knees and elbows for six months in 2006. [ 40 ] He was asked about medical records, which reflected that he had kicked his wife in the ribs in January 2009.

He said there was some miscommunication about this event; he said he did not kick his wife although they did collide. [ 41 ] He described the plaintiff as physically active with the children and participating in sports, bicycling, and home maintenance. He said the plaintiff has slowed down since the accident and appears to be moody, irritable, and unable to perform all of the family chores.

He said that he now does approximately half of the housework. [ 42 ] He reported that the family vacationed at a local lake in August 2008 and in February 2009 they took a vacation; during this trip the plaintiff was able to swim. He said the plaintiff does not do winter sports. [ 43 ] He said that the plaintiff is more moody and irritable and that their relationship has been impacted with additional stresses from time to time. He said that the plaintiff intended to return to work when the children reached school age; childcare at the time was too expensive for them.

[ 44 ] He said they have no plans to have more children. [ 45 ] Mr. McCulloch gave evidence of the damage to their vehicle after the accident. His evidence did not correspond with the admissions agreed upon by the parties. I was the told by the plaintiff’s counsel I can disregard Mr. and Mrs. McCulloch’s evidence where it conflicts with those admissions regarding vehicle damage. C. Ms. Benzai [ 46 ] Ms. Benzai is the plaintiff's mother. She was in the vehicle at the time of the accident.

She described the impact as hard and reported the car going up and down with the impact. [ 47 ] As they left the scene of the accident the plaintiff said she was not feeling well and they drove to the hospital. [ 48 ] Ms. Benzai observed that the plaintiff is less strong and active and reported having pain. She described her daughter as less upbeat since the accident. Her daughter appears frustrated at the limitation in things she is able to do. Ms.

Benzai observed that the plaintiff does fewer recreational activities, including bike riding, and does not roughhouse with the children. [ 49 ] She has watched her daughter try to do manicures and pedicures and believes that Ms. McCulloch has difficulty because buffing and filing nails is hard on her back. [ 50 ] Under cross-examination, Ms. Benzai did not recall much about the plaintiff’s courses. She cared for the plaintiff’s child when Ms. McCulloch attended her nail technician course for the five months ending in February 2011.

However, babysitting for the plaintiff was too onerous for her on a full-time basis. D. Ms. Peacock [ 51 ] Ms. Peacock is part owner of Body Waves Aesthetics in Salmon Arm. The plaintiff submitted a resume in response to a newspaper advertisement placed by Ms. Peacock in her search for a nail technician. [ 52 ] Ms. Peacock was prepared to employ the plaintiff because she had good marks from her school. She said that the type of work the plaintiff might have done included lifting and bending, as well as sitting for one to two hours. The plaintiff could be faced with six manicure or pedicure customers in a day.

There were few opportunities to rest between customers. In addition to a half-hour lunch break, the workday generally involves an eight hour shift. Part-time workers worked between two and three days per week. [ 53 ] Ms. Peacock offered Ms. McCulloch employment but she eventually declined the job and told Ms. Peacock she could not afford the necessary daycare costs when she was away from home. [ 54 ] Ms. Peacock described the plaintiff as well put together, a good communicator and top of her class. She was not aware of the car accident and did not expect to be advised of the plaintiff’s injuries. [ 55 ] Ms.

Peacock hired an alternate employee. [ 56 ] In the nail business Ms. Peacock paid a $10.25 per hour minimum wage or a 40% commission on sales, whichever was higher. A 40% commission employee could earn between $1,500 and $2,000 per month on a full-time

schedule of work. A part-time employee could earn between $600 and $800 per month. E. Ms. Moore [ 57 ] Ms. Moore is a 71 year old resident of Castlegar, B.C. She observed the collision which is the subject of this action. She described the defendant’s car as moving four to five feet before impacting the plaintiff’s car. The impact and the defendant’s speed did not seem excessive and the plaintiff’s car did not move on impact. She observed people coming from the plaintiff’s car and no one appeared injured. F. Ms. Garrett [ 58 ] Ms. Garrett is a physiotherapist practicing in Salmon Arm. She treated Ms.

McCulloch on one occasion, although the plan was to see the plaintiff over a five or six week period. Ms. Garrett described the plaintiff’s report on this visit including low back pain and stiffness in the upper back accompanied with headaches. [ 59 ] She observed restriction in the plaintiff’s L-5 S-1 joint. She observed the plaintiff’s muscles were tight and her joints were very restricted. [ 60 ] She taught the plaintiff exercises to extend her range of motion in the low back and neck. II. Medical Evidence A. Dr. MacKean [ 61 ] Dr.

MacKean, a physical medicine and rehabilitation doctor, provided a report dated March 15, 2012. Dr. MacKean was

instructed by plaintiff’s counsel and was provided with the records from Dr. Aitchison, Harbour Front Massage Clinic Records, and Live Well Physiotherapy. Dr. MacKean’s opinion was based on information received from the plaintiff together with a review of the materials provided. [ 62 ] The plaintiff told Dr. MacKean that she had been involved in the motor-vehicle accident on May 8, 2008, and that she had no prior history of neck or back pain. The plaintiff told Dr. MacKean that the back bumper of her car was struck by a car backing out of an opposite parking spot.

The plaintiff reported that she had immediate onset of low back pain, tension and nausea before attending the hospital in Salmon Arm immediately after the accident. The Shuswap Lake Hospital records do not reflect the plaintiff’s recollection that she had low back pain immediately following the collision. [ 63 ] The plaintiff reported to Dr. MacKean that she had chronic low back pain and ongoing neck and upper back tension. She also reported increases in low back pain when bending or twisting, difficulty sleeping and restless legs at night.

The plaintiff reported her low back pain is associated with washing floors but she still does most of the housework. She told Dr. MacKean that her ability to ride a bicycle is limited in duration to 15 minutes and that low back pain worsens if she walks more than 30 minutes. [ 64 ] Dr. MacKean formed an impression of the plaintiff as follows: 1. Grade one whiplash associated disorder cervical spine and upper-back. 2. Grade two soft tissue injuries involving the lower back and sacroiliac joint regions.

In my opinion, the ongoing problems she describes with persistent neck and upper back pain and stiffness and persistent lower back pain are due to injuries sustained in a motor vehicle accident that occurred May 8 th , 2008. It has been four years following the date of the motor vehicle accident and it is likely she will have ongoing chronic pain, involving her neck, upper back, and lower back. RECOMMENDATIONS: I would recommend an active rehabilitation program working with a physiotherapist or kinesiologist starting with a pool therapy program and gradually progressing into a gym program under supervision.

I think this is the best way for her to try to get her pain symptoms under better control over time. I do not think she needs to go to regular physiotherapy or massage therapy treatment as it is unlikely to provide her with significant benefit after this length of time. I would not recommend any further diagnostic imaging. She is a stay-at-home mom and I would expect she would have difficulty with activities that required repetitive bending or twisting with the spine or with lifting or carrying activities. B. Cross Examination of Dr. MacKean [ 65 ] Dr.

MacKean described chronic pain as pain that lasts longer than six months. She explained that a grade one whiplash produces symptoms of some tenderness but a victim will usually have a full range of motion. [ 66 ] A grade two soft tissue injury to the low back will result in a decrease in the range of motion and tenderness in the affected area. [ 67 ] She commented on the CT scan findings. She said that 30% of people 30 – 35 years of age have mild degenerative changes in their back.

There is no direct association between degenerative changes and back pain; degenerative changes do not always become painful. [ 68 ] The findings set out in the CT scan report did not change Dr. MacKean’s opinion. [ 69 ] Dr. MacKean acknowledged that subjective complaints of the plaintiff were the core basis of her opinion. She acknowledged that most pain symptoms from injury appear between one and three days after the event causing an injury.

The acute phase lasts for a few months and involves a reduced range of motion which is caused by muscle tightness. [ 70 ] The plaintiff reported that she experienced low back pain immediately after the accident; this indicated to Mr. MacKean that her low back symptoms were caused by the accident. Dr. MacKean based her opinion on the plaintiff’s statement that she had not experienced back pain before the accident and thus the doctor did not think her pre-existing arthritis was caused by the accident. She also relied on the plaintiff’s report that she had no prior history of neck or back pain [ 71 ] Dr.

MacKean was asked about the plaintiff’s family doctor’s notes which indicated that in May 2006 she had joint pains in her wrists, low back, elbows, knees and ankles for approximately six months. Dr. MacKean said that based on the plaintiff’s report that she had no prior history of back pain, the osteoarthritis in the facet joints was not likely caused by the car accident. When Dr. MacKean was referred to the plaintiff’s medical records indicating Ms.

McCulloch had complained about low back pain for six months in 2006, she could not comment on the cause of that low back pain at that time but she said the complaints were consistent with osteoarthritis in the facet joints. [ 72 ] Dr. MacKean believed that degenerative changes are unpredictable but can produce intermittent pain. She said that the plaintiff’s history of low back pain lasting six months followed by an interval without pain, followed by more back pain after the accident could be consistent with symptomatic facet arthritis.

[ 73 ] The doctor acknowledged that physiotherapy is an important feature to manage symptoms and helps to reduce pain and improve function. [ 74 ] Dr. MacKean said rehabilitation involving active mobilization and stretching is the most important strategy to follow in post- accident soft tissue injury cases. She said everyone will improve if they are pursuing active rehabilitation for four to six months. [ 75 ] I note that Dr. MacKean’s conclusions were based on the assumption that the plaintiff did not have a history of low back pain and that this assumption was germane to her opinion. This was not true.

As detailed below, Dr. Coghlan opined that Ms. McCulloch’s complaints stem from her facet osteoarthritis and not the soft tissue injury. The defence pointed out that Dr. Coghlan was not challenged on this point. He suggested that when the plaintiff was examined by Dr. MacKean she was likely experiencing joint inflammation which was not present during his examination. C. Dr. Coghlan [ 76 ] The plaintiff was examined by Dr. Coghlan who is also a physical medicine and rehabilitation physician. [ 77 ] Dr. Coghlan’s June 13, 2012 opinion stated: In her examination, Dr. MacKean noted that Ms.

McCulloch had a restriction of full flexion and to a lesser extent extension in her lower back yet I saw her at the time of my assessment two weeks earlier, she had a full range of flexion, 7cm, with no pain produced and extension was 2cm. I also felt there was a slight scoliosis with forward flexion and with spinous processes turned to the right. Based on the fact that Ms. McCulloch complained of significant symptoms in her lower back I felt it was appropriate to consider taking a CT scan of the lumbar spine but she has not followed through with this recommendation. I would also disagree with Dr.

MacKean’s prognosis as I feel that Ms. McCulloch has not had an adequate rehabilitation program to get her functionally moving and to restore core strength. Based on my examination at the time I saw her I did not feel that there was any evidence of any major dysfunction in the lumbar spine. So, I would agree with Dr. MacKean’s recommendation of an active rehabilitation program at this stage. Finally I did not feel that Ms. McCulloch is functionally disabled to the extent that she could not continue to undertake regular housework and family responsibilities. [ 78 ] On August 2, 2012, Dr.

Coghlan wrote a supplementary report after a review of the plaintiff’s CT scan which was performed June 21, 2012. The CT scan contained the following: [The plaintiff has] appropriate alignment of the lumbar spine. Disk spaces and vertebral body heights are maintained. The central canal and neural foramen are maintained at L2-3 and L3-4. There is a broad based disc bulge at L4-5, mild bilateral facet osteoarthritis and ligamentum flavum hypertrophy. The central canal and neural foramen are maintained. L5-S1 showed mild bilateral facet arthritis. The central canal and neural foramen are maintained.

Mild bilateral SI joint arthritis was noted. [ 79 ] Dr. Coghlan set-out his opinion as follows: These findings indicate significant underlying degenerative disease and facet osteoarthritis. It is my opinion that if Ms. McCulloch had sustained significant injury to her back at the time of the accident, she would have presented with more severe acute pain and spasm in her lower back when she presented to the doctor five days later. [ 80 ] Dr.

Coghlan testified that when a variance occurs in the range of motion findings between two separate medical examinations, there is usually an acute strain in that area of the body in the intervening period between the two examinations. [ 81 ] He said that the CT scan showed significant disease at multiple levels in the plaintiff’s back. He said that there is degenerative arthritis in the SI joints which explained her history of ongoing back problems over the preceding years. He noted that the plaintiff’s primary post-accident complaints were her neck, shoulder and mid-back.

Although her low back was stiff, he said that if she had injured her low back in the accident, he would have expected more significant low back pain and that it would have become her major complaint. [ 82 ] Dr. Coghlan said the plaintiff’s arthritis in her back is a “wear and tear” type disease and he distinguished her CT scan findings of arthritis from those associated with a focal disc bulge. [ 83 ] In cross-examination, Dr. Coghlan acknowledged that degenerative changes in the back are not always accompanied by symptoms. Facet arthritis is more of an inflammatory disease that progresses over time.

He acknowledged that trauma can cause quiescent facet arthritis to become symptomatic and significant traumas can cause inflammation. This condition can worsen over time. He noted that the SI joint can cause inflammation particularly in women. [ 84 ] He said that if the plaintiff’s asymptomatic low back complaints had been triggered by the trauma, he would have expected her to have more acute pain and spasm at the time of the accident. He would also have expected to see a limited range of motion which was not immediately present after the accident but became variable after.

He did not see this type of finding in the records of the plaintiff’s

family doctor. D. Dr. Aitchison [85] Dr. Aitchison was the plaintiff’s treating family doctor at the time of the accident. She did not provide expert evidence at thistrial although she testified as to certain observations made of Ms. McCulloch during the time she cared for her and reports made by theplaintiff. Dr. Aitchison based much of her testimony on the clinical notes she made when speaking to Ms. McCulloch. I accept that hernotes accurately reflect the exchanges with the plaintiff. [86] Dr. Aitchison testified that the plaintiff had a good range of motion on May 13, 2008.

She had a good range of motion on June11, 2008 with pain on palpation. She recommended physiotherapy and massage to help with the plaintiff’s musculoskeletal symptoms. InAugust 2008, Dr. Aitchison again discussed physiotherapy with the plaintiff. She hoped the plaintiff would attend physiotherapy. [87] On June 11, 2008, Dr. Aitchison referred the plaintiff for physiotherapy and massage to help with pain. By August 27, 2008,Dr. Aitchison observed that the plaintiff had a limited range of motion in the lumbosacral spine. [88] On February 12, the plaintiff told Dr.

Aitchison that she found physiotherapy and massage therapy helpful. This was not true asshe was not receiving therapy at or near this time. [89] On March 6, 2009, Dr. Aitchison wrote to the plaintiff’s counsel and said: Ms. McCulloch is following the treatment program prescribed to her and I think she is benefitting from the physiotherapy. I think thephysiotherapy and the treatment plan we have outlined is medically necessary for her to regain her functional abilities to continue withher activities of daily living. [90] The suggestion in this letter was also not true.

The plaintiff did not explain to her doctor that she was not following the advice totake physiotherapy treatments. [91] Dr. Aitchison confirmed other entries in her records outlying the recommendations she made and observations she made of theplaintiff. III. Causation and continuing symptoms [92] This case presents a recurring difficulty in the assessment of post-accident injury claims. In this case the damage to theplaintiff’s vehicle was confined to a “scratch” costing $310 to repair. There were neither signs of movement in the plaintiff’s rear bumpernor any structural damage to her vehicle.

The ICBC evaluator was unable to determine the actual point of impact. [93] It is well established law that the defendant need not compensate the plaintiff for the effects of a pre-existing condition if theplaintiff would have experienced them regardless of the accident: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at para.35. [94] As explained in Pavlovic v. Shields - and - Pavlovic v.

Dickson, 2009 BCSC 345 at paras. 55-56: [55] The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of theaccident, and that is unlikely to become active but for the accident. If the injury is proven to be of a thin skull nature, then the defendantis liable for all the plaintiff’s injuries resulting from the accident. [56] A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become activeregardless of the accident.

If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that theaccident caused an aggravation to the pre-existing condition. [95] The plaintiff is a young person who, before the auto accident, had significant degenerative disease in her low back including adisc bulge and mild facet osteoarthritis. [96] The evidence revealed that in May 2006 the plaintiff was experiencing a worsening of joint pain in her wrists, low back, elbows,knees and ankles. This fact was not disclosed or noted by Dr. MacKean prior to the preparation of her report. Thus, Dr.

MacKean formedher opinion, in part, based on a fact that was proven to be incorrect. Dr. MacKean agreed that the plaintiff’s low back pain was consistentwith osteoarthritis in the facet joints that was not caused by the collision. [97] The defendant urges me to conclude that the plaintiff did not sustain any injury to her back due to the collision.

She argues thatthe plaintiff’s symptoms are an inevitable progression of the inflammatory disease in her facet joints that were neither caused norcontributed to by the accident. [98] The defendant argues that the medical evidence was largely dependant on the reports given to the treating doctors and Dr.MacKean after the plaintiff had engaged a lawyer to assist her. She argues that because those reports were made at a time when she wasnot a disinterested party, they should be ignored. Leblanc v. Ford Credit Canada Ltd 2003 BCSC 1267 , 2003 BCSC1267 atpara 5. [99] The defendant further argues that Dr.

Aitchinson’s clinical records cannot be admitted as factual support for the plaintiff’sclaims given that, at the time she spoke with her doctor, she had already retained a lawyer to represent her in this claim. She argues thesestatement are not admissible to prove the facts set out in those records because they do not meet the tests set out in s. 42 of the EvidenceAct, R.S.B.C. 1996, c. 124:

Admissibility of business records 42

(1) In this section: "business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit orotherwise; "document" includes any device by means of which information is recorded or stored; "statement" includes any representation of fact, whether made in words or otherwise.

(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible asevidence of the fact if (

a) the document was made or kept in the usual and ordinary course of business, and (

b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred orwithin a reasonable time after that.

(3) Subject to subsection (4), the circumstances of the making of the statement, including lack of personal knowledge by the personwho made the statement, may be shown to affect the statement's weight but not its admissibility.

(4) Nothing in this

section makes admissible as evidence a statement made by a person interested at a time when proceedings werepending or anticipated involving a dispute as to a fact that the statement might tend to establish.

(5) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in whichuncorroborated evidence is to be treated, a statement rendered admissible by this

section must not be treated as corroboration of evidencegiven by the maker of the statement. [Emphasis added.] [100] The decision of the Court of Appeal in Mazur v. Lucas, 2010 BCCA 473 , 2010 BCCA 473 is apposite. This decisionconcerned hearsay evidence relied upon by experts in forming opinions. The Court said: [40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsayevidence as follows: • An expert witness may rely on a variety of sources and resources in opining on the question posed to him.

These may include his ownintellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises,information from others – this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835) • An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist containedin an x-ray report.

Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’sreport. • The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlyingassumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of thehearsay, where that hearsay is not proven by other admissible evidence.

Where the hearsay evidence (such as the opinion of otherphysicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability. • The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw theevidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, butrather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury. And: [35] Mr.

Justice Sopinka concurred with Wilson J. in the result in Lavallee, but made some clarifying remarks which are relevant tothe present appeal. In his view, the four propositions from Abbey concerning the admissibility and weight of expert opinion evidencemay yield a result which is self-contradictory (at 898-899): The combined effect of numbers 1, 3 and 4 is that an expert opinion relevant in the abstract to a material issue in a trial but based entirelyon unproven hearsay (e.g., from the mouth of the accused, as in Abbey) is admissible but entitled to no weight whatsoever.

The questionthat arises is how any evidence can be admissible and yet entitled to no weight. As one commentator has pointed out, an expert opinionbased entirely on unproven hearsay must, if anything, be inadmissible by reason of irrelevance, since the facts underlying the expertopinion are the only connection between the opinion and the case: see Wardle,“R. v. Abbey and Psychiatric Opinion Evidence:Requiring the Accused to Testify”(1984), 17 Ottawa L.

Rev. 116, at pp. 122-23. [36] To resolve the contradiction, he drew a practical distinction between evidence that an expert obtains and acts upon within thescope of his or her expertise and evidence that an expert obtains from a party to litigation touching a matter directly in issue (at 899-900): In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means of decisionwithin that expertise.

A physician, for example, daily determines questions of immense importance on the basis of the observations ofcolleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professionaljudgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees oftrustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay

evidence in general, exemplified in Ares v. Venner, (SCC), (SCC), [1970] S.C.R. 608. In R. v. Jordan(1984), (BC CA), 39 C.R. (3d) 50 (B.C.C.A.), a case concerning an expert’s evaluation of the chemical composition ofan alleged heroin specimen, Anderson J.A. held, and I respectfully agree, that Abbey does not apply in such circumstances. (See also R.v. Zundel (ON CA), (ON CA), (1987), 56 C.R. (3d) 1 (Ont.

C.A.), at p. 52, where the courtrecognized an expert opinion based upon evidence “... of a general nature which is widely used and acknowledged as reliable by expertsin that field.”) Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, orfrom any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proofwill, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point.

But it must berecognized that it will only be very rarely that an expert’s opinion is entirely based upon such information, with no independent proof ofany of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to beproved, the matter is purely one of weight. [Emphasis added] [101] The defendant says that I should closely question the plaintiff’s reports to her doctors because she had retained counsel early inher recovery and could have been influenced by the prospects of anticipated litigation.

In the defendant’s view, the plaintiff was notdisinterested when providing the statements: McTavish v.

MacGillivray (1997), (BC SC), 38 B.C.L.R. (3d) 306 (S.C.)at para. 13. [102] The defendant argues that the plaintiff’s case depends largely on her credibility and in particular the exchanges andrecommendations dealing with the doctor’s recommendation that she pursue physiotherapy. [103] The defendant argues that I must carefully examine the plaintiff’s evidence in order to conclude that her injuries were the resultof such a minor impact with so little damage. [104] Alternatively, she argues that any accident related injury fully resolved shortly after the incident. [105] The fact that there was no limit to her range of motion after the accident and in circumstances when a restricted range of motionwould be expected within 72 hours is significant.

Ms. McCulloch’s pattern of symptoms is inconsistent with that expectation; she hadfull range of motion by May 13, 2008. [106] I accept Dr. Coghlan’s opinion coupled with that of Dr. MacKean that if the plaintiff had sustained a significant injury to herback at the time of the accident she would have presented with more severe acute pain, limited range of motion and spasms in the backwhen she presented to her doctor five days after the accident. These symptoms were not observed by Dr. Aitchison. [107] Dr. MacKean reiterated the importance of active rehabilitation in dealing with pain symptoms from an injury.

She said that it isthe most important aspect of the recovery process and that active rehabilitation needed to extend for four to six months. [108] It is clear from the evidence that the plaintiff did not pursue the recommendations for physiotherapy suggested by her doctor.The evidence reveals that Ms. McCulloch attended one physiotherapy treatment on July 16, 2008, and one treatment on August 8, 2008.The plaintiff said the physiotherapy made her feel worse. She was told that she would require six to eight visits and possibly more toachieve a better outcome. After August 2008 she did not return to physiotherapy.

She did not recall her doctor telling her thatphysiotherapy was a most important element in her treatment. This advice was confirmed by Dr. Aitchison. [109] She did not recall the discussion with her family doctor on August 27 saying she was pursuing physiotherapy.

It is clear that herfamily doctor told her that ongoing physiotherapy was important to achieving improvement. [110] She said that she spoke to her doctor on many occasions about physiotherapy aggravating her symptoms but could not recalltelling the doctor she was seeking physiotherapy. [111] She does not recall asking her family doctor in February 2009 for a referral to physiotherapy. [112] She does not recall telling her family doctor that physiotherapy and massage therapy were helpful to her.

In any event, she didnot attend a physiotherapy treatment after obtaining the referral in February 2009. [113] She could not recall the letter written to her lawyer in March 2009 recommending physiotherapy as a necessary part of hertreatment of the injuries. She did not recall telling her doctor in February 2009 that she was finding physiotherapy and massage therapyhelpful. She did not recall telling her doctor she was going to physiotherapy and that it was helping. [114] The plaintiff recalled receiving a referral to Ms. Johns. She did not go to Ms. Johns because physiotherapy aggravated hersymptoms.

This assertion is not consistent with her reports to her doctor and the fact that she had not been to physiotherapy since August2008. [115] The plaintiff did not recall a meeting with her family doctor in September 2009 at which time she asked for a referral to adifferent physiotherapist. She received a referral at that time. [116] Dr. MacKean and Dr. Aitchison were unchallenged in their evidence that the plaintiff would have benefited from physiotherapytreatments. Dr.

MacKean’s opinion was that 100% of patients with soft tissue injuries benefit from physiotherapy through reduced painand increased functional ability. [117] I agree with the plaintiff’s position that the fact that an accident involves low velocity forces and minimal damage does not leadto the conclusion that no significant injury could be sustained: Lubick v. Mei and another, 2008 BCSC 555 at para. 5 and Dao v. Vance,

2008 BCSC 1092 at paras. 18 – 21. [118] I accept that the plaintiff suffered a grade one whiplash injury affecting her cervical spine and upper back as a result of theaccident. I also accept that the plaintiff suffered some soft tissue injury to her lower back and sacroiliac region superimposed on anosteoarthritic low back. However, the modest impact of the accident on her back is quite separate from the long standing complaints shehas relating to her back.

In my view, those symptoms result from the pre-existing changes in her back and would likely have developed ifthe accident had not intervened. [119] The plaintiff seeks non-pecuniary damages of $50,000, arguing that the applicable range in this case is $40,000 - $60,000. Shealso seeks compensation for the impairment to her earning capacity at $30,000 to $40,000 and special damages. IV. Non-pecuniary DAMAGES [120] Non-pecuniary damages are intended to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss ofamenities.

The compensation awarded should be fair to all parties and depends on the particular circumstances of each person and theimpact the accident related injuries has on that plaintiff. Prior decisions of this Court can be helpful in assessing Ms. McCulloch’s claim.Other cases may be helpful, but serve only as a rough guide. Each case depends on its own unique facts: Trites v. Penner, 2010 BCSC882 at paras. 188-189. [121] In Stapley v.

Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be considered when assessing non-pecuniarydamages at para. 46: The inexhaustive list of common factors cited in [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damagesincludes: (

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 BCCA 54). [122] The assessment of non-pecuniary damages is necessarily influenced by the individual plaintiff’s personal experiences in dealingwith one’s injuries and their consequences, and the plaintiff’s ability to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56at para. 25. [123] The correct approach to assessing injuries which depend on subjective reports of pain was discussed in Price v. Kostryba (1982), (BC SC), 70 B.C.L.R. 397 (S.C.) by McEachern C.J.

In referring to Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.) hesaid at 399: I referred to counsel's argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries becausecomplaints of pain cannot easily be disproved. I then said: I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence ofcontinuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one canexpect his fellow citizen or citizens to compensate him in the absence of convincing evidence - which could be just his own evidence ifthe surrounding circumstances are consistent - that his complaints of pain are true reflections of a continuing injury. A. Plaintiff’s position [124] On the day of the accident the plaintiff complained of stiffness in her neck and shoulders and when seen by her family doctor shehad begun experiencing low back pain.

She attended physiotherapy and massage. She was seen by Drs. Etheridge, Cleveland andAitchison. The plaintiff argues that she suffers neck and back pain as a result of the accident four years ago and will continue to suffer inthese areas. She was asymptomatic at the time of the accident and her only previous history of back pain in 2006 was not symptomatic inthe time immediately before the accident.

[125] The injuries to her low back and neck have affected her activities including walking, lifting, carrying heavy items, picking upchildren, bike riding, and water sports. She is no longer able to pursue a career as a nail technician and will be limited in her ability toobtain employment with equivalent income prospects. [126] The claimant argues that non-pecuniary damages fall within the range of $40,000 to $60,000 and that the appropriate amount toaward in this case is $50,000. The plaintiff refers to Jackman v.

All Season Labour Supplies Ltd., 2006 BCSC 2053 in which the plaintiffwas awarded $40,000 in non-pecuniary damages. In that case the plaintiff complained of a stiff neck and low back pain. The low backpain restricted most aspects of the plaintiff’s life for about one year and caused some disabling effects for about five months of that year.The plaintiff had residual symptoms three years after the accident and was expected to continue with those symptoms for months tocome. In Brock v.

King, 2009 BCSC 1179, Punnett J. considered injuries that continued more than three years after the accident andinvolved back pain, neck pain and headaches. The injuries interfered with the plaintiff’s work and her daily activities. Furtherimprovements could be expected but the plaintiff was left with some ongoing chronic pain. The Court awarded $40,000 non-pecuniarydamages. [127] In Lehtonen v. Johnston, 2009 BCSC 1364, Baker J. assessed non-pecuniary damages of $40,000 for a plaintiff who hadsustained a mild soft tissue injury to her neck and upper back and mild soft tissue injuries to her low back.

In that case the plaintiff’s neckand upper back pain resolved within six weeks but the lower back symptoms persisted for approximately one year. The Court acceptedthat the plaintiff continue to have subjective symptoms but concluded that her experience more than one year after the accident was notcaused by the mild injuries suffered in the accident. [128] In Tarzwell v. Ewashina, 2011 BCSC 1464, the plaintiff experienced headaches, back discomfort and neck pain. The plaintiffhad little relief from her symptoms and her pain was managed and controlled but not likely to resolve fully.

Dley J. awarded non-pecuniary damages of $60,000. [129] In Bartel v. Milliken, 2012 BCSC 563, Gerow J. awarded non-pecuniary damages of $35,000 to a plaintiff who suffered injuriesto her neck, back, shoulder and sacroiliac joint. Although the plaintiff was continuing to have pain in those areas dependent on heractivity, the Court concluded that her accident related symptoms resolved within seven months following which she had occasional flare-ups and some ongoing restrictions in activity. The plaintiff was 51 years of age and the damage to her vehicle was approximately $400. [130] In Stein v.

Kline, 2012 BCSC 573, Bracken J. awarded $40,000 stemming from the plaintiff’s injuries to the right side of hisback, neck and shoulders. Four years after the accident the plaintiff continued to have occasional flare-ups in his symptoms that mayhave required physiotherapy or massage therapy treatments. It was likely that the plaintiff would have ongoing muscle tenderness andoccasional flare-ups in the future. B.

Defendant’s position [131] The defendant argues that the plaintiff’s objective symptoms are inconsistent with the symptoms she alleges to be ongoing andresulting from the accident. [132] The defendant suggests that the severity of the collision is a factor to be considered in assessing non-pecuniary damages:Bittante v. Zichy, 2008 BCSC 728 at para. 137; Yeh v. Ford Credit Canada Ltd. (1996), (BC SC), 25 B.C.L.R. (3d)318 (S.C.) at paras. 6-7; Sinclair v. Norman and ICBC, (8 July 1996), Vancouver 93-8907 (B.C.P.C.). [133] The defendant relies on Milanovic v.

Bokenfohr, 2003 BCPC 316 in which the plaintiff recovered $1,000 for non-pecuniarydamages. That case involved a collision resulting in very modest damage. The Court concluded that there was no objective medicalevidence to verify the existence of the claimant’s injuries. The Court accepted that the plaintiff had some discomfort to his neck andexperienced headaches as a result of the accident. The effects of these injuries did not persist more than six months after the accident. [134] In Mokanasingham v.

ICBC et al, 2009 BCPC 251, Dillon J. allowed non-pecuniary damages of $1,000 for upper neck and backinjuries that lasted for approximately five months. [135] In Vuong v. Wong et al, 2007 BCPC 172, the Court awarded non-pecuniary damages of $2,000 as a result of injuries suffered inan accident in which the cost of the repairs to the plaintiff’s car was $1,804. [136] In Seto v. Ng and Kung, 2009 BCPC 218, the Court awarded $2,500 for non-pecuniary damages relating to a motor vehiclecollision.

The claimant’s vehicle sustained $442 in damages and he had fully recovered from his injuries four months after the accident. [137] The defendant argues that if the plaintiff’s ongoing complaints are due to the injuries suffered in the accident, then her multi-level facet arthritis is the source of her complaints and her entitlement to non-pecuniary damages is modest. The defendant refers to Brayv. Gaete, 2004 BCSC 335. In that decision Quijano J. considered injuries suffered in a low impact collision in which the cost of repairs tothe defendant’s vehicle was $2,611.

The Court considered the plaintiff had suffered headaches and low back pain that compromised herability to lift and twist. The Court described this as a minor soft tissue injury to her neck and shoulders and a moderate soft tissue injury toher low back which continued to be symptomatic. The Court assessed non-pecuniary damages at $20,000. C. Decision [138] The plaintiff’s injury affecting her cervical spine and upper back were grade one injuries. Dr. MacKean concluded the plaintiffwill have ongoing chronic pain, involving her neck and upper back.

Although the impact of the collision appears minimal, the evidencehas satisfied me that her cervical and upper back complaints are attributable to the defendant's negligence. [139] Dr. MacKean described the plaintiff's low back and sacroiliac joint injuries as grade two soft tissue injuries. He concluded thatthis injury was sustained in the accident and the effects are ongoing.

[140] I accept that the collision caused some disruption to the plaintiff's lower back based on her earliest record of pain and stiffness inher low back. However, the reduction in the plaintiff’s range of movement was delayed until late August 2008. [141] I do not accept Dr. MacKean’s opinion that Ms. McCulloch’s longer term symptoms in her low back were caused by the forcesof the collision on May 8, 2008. Dr. MacKean’s opinion was based on a flawed understanding of the plaintiff's medical history. I acceptDr.

Coghlan’s opinion that if the plaintiff had sustained a significant injury at the time of the accident she would have presented withmore severe acute lower back pain when she saw her doctor five days later. [142] I am concerned that much of what is reported in the doctor’s notes does not reflect the report of a disinterested person. She hadretained a lawyer by July 2008 and was likely influenced by the impending legal process in her discussions with her physicians.

I do notaccept that the plaintiff was, in any way, deliberating misleading her doctors, but she was not disinterested in her reports after that time. [143] This coupled with the very minor nature of the damages to the vehicle which she did not accept (in spite of her formaladmissions) leads me to conclude that Ms.

McCulloch’s reports of ongoing symptoms she attributes to the accident are not entirelyreliable. [144] Although it is possible that the accident triggered symptoms from the asymptomatic osteoarthritis in her low back, the evidencesatisfies me, on the balance of probabilities, that she would have had low back symptoms sometime in the future but for the accident. It isdifficult to estimate the duration of the plaintiffs low back symptoms caused by the accident but I am satisfied that they should have beenresolved by the time of the trial.

Considering the factors set out in Stapley and the cases cited by counsel, I award the plaintiff non-pecuniary damages of $25,000. V.

Loss of Income Earning Capacity [145] The plaintiff argues that I should award between $30,000 and $40,000 to compensate the plaintiff for her loss of income earningcapacity. [146] She argues that after completing her nail technician’s course she was able to earn between $17,850 and $24,000. [147] The plaintiff argues that her prospects as a nail technician are likely ended and she will be unable to achieve the economicsuccess that was possible before the accident. [148] Working as a nail technician requires sitting for two hours at a time, bending, and lifting.

The plaintiff is unable to endure thephysical discomforts arising from her injuries when performing those duties. [149] The plaintiff relies on Pallos v. Insurance Company of British Columbia (1995), (BC CA), 100 B.C.L.R. (2d)260 (C.A.) at para. 24 and Brown v.

Golaiy (1985), (BC SC), 26 B.C.L.R. (3d) 353 (S.C.) arguing that she: a. has been rendered less capable overall from earning income from all types of employment; b. is less attractive or marketable as an employee to potential employers; c. has lost the ability to take advantage of her old job opportunities that might otherwise have been open to her but for the injury; and, d. is less valuable as a person capable of earning income. [150] The defendant argues the plaintiff did not establish that she will suffer loss of income in the future and no order should be madeunder this head of damage. [151] The defendant says that there is no medical evidence to support a claim that the plaintiff is unable to perform any type of work.The burden is on the plaintiff to establish that her injuries have created a substantial possibility that in the future she will be unable to herincome.

Mere speculation is insufficient to justify an award. In Perren v Lalari, 2010 BCCA 140, the Court said at para. 32: [32] A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. inRomanchych, that there is a real and substantial possibility of a future event leading to an income loss. If the plaintiff discharges thatburden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity,either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown.

The former approach will be more useful whenthe loss is more easily measurable, as it was in Steenblok. The latter approach will be more useful when the loss is not as easilymeasurable, as in Pallos and Romanchych. A plaintiff may indeed be able to prove that there is a substantial possibility of a future loss ofincome despite having returned to his or her usual employment. That was the case in both Pallos and Parypa.

But, as Donald J.A. said inSteward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss. [Emphasis in original] [152] When the plaintiff was training as a nail technician, she was engaged in working five hours per day for five months. Theplaintiff applied for and obtained employment as a nail technician but declined the job because of the expenses required for children'sday care. [153] Ms. Peacock commented that new nail technicians often have some difficulty in performing the body positions necessary toconduct their duties.

This feature of the job would be the same for everyone. [154] Dr. MacKean did not suggest the plaintiff was restricted or limited in the type of work she was physically capable of performing.There was no functional capacity evidence and Dr. Coghlan concluded that she is not functionally disabled from regular housework or

family responsibilities. [ 155 ] The plaintiff’s health since the accident has obviously deteriorated in regard to her physical endurance and related discomfort. I am unable to find that the evidence establishes on balance that the ongoing effects of the accident will interfere with the plaintiff’s income earning capacity. Second, there is insufficient evidence of a substantial possibility that Ms.

McCulloch will suffer a loss of income due to the injuries caused in the car accident. [ 156 ] The plaintiff has not established that the injuries from this accident have permanently rendered her less capable overall from earning income from all types of employment or made her less attractive or marketable as an employee to potential employers. Additionally she has not proven that her ability to take advantage of all other job opportunities that might otherwise have been open to her but for the injury, have been foreclosed to her over the long term.

She is not less valuable as a person capable of earning income over the long term. [ 157 ] I do not accept that the injury cause by the accident has resulted in disruption in her income earning prospects. VI. Future Care costs [ 158 ] The sum of $3,000 is necessary to gain the services recommended by Dr. MacKean. She argues that the services of a kinesiologist will require between $1,000 and $2,400 plus the cost of aquatic therapy.

In total she says $3,000 will be sufficient in the future care costs. [ 159 ] I accept the evidence that the plaintiff suffers from some chronic neck and upper back pain caused by the accident. Although these areas of discomfort do not appear to be the most significant of the plaintiff’s complaints, I accept Dr. MacKean’s recommendation that the plaintiff should pursue active rehabilitation working with a physiotherapist or kinesiologist. I award the plaintiff $2,500 to compensate for treatments that will address these areas of ongoing complaint. VII.

SPECIAL Damages [ 160 ] The claimant seeks compensation of $1,165.40 for physiotherapy treatments. In addition she seeks recovery for 402.4 kilometres driven at $.50/km to these treatments. The defendant says she should be paid $.30/km. The defendant argues that the number of physiotherapy treatments was excessive and that if the plaintiff had undertaken the recommended physiotherapy earlier in her recovery, the massage therapy costs would have been much reduced. [ 161 ] In the circumstances, I do not accept that the plaintiff’s pursuit of massage therapy treatments was unreasonable or excessive.

There was no evidence to support the suggestion that the number of massage treatments could have been reduced if the plaintiff had received other therapies. I accept plaintiff's claim in the sum of $1,165 as well as $201.20 in driving costs. VIII. Failure to Mitigate [ 162 ] The defendant argues that the plaintiff failed to mitigate her losses in refusing to follow the advice to take physiotherapy treatments. A plaintiff has an obligation to take all reasonable measures to reduce his or her damages, including undergoing treatment to alleviate or cure injuries: Danicek v.

Alexander Holburn Beaudin & Lang , 2010 BCSC 1111 at para. 234 . [ 163 ] The burden of proof to establish that Ms. McCulloch could have mitigated her loss rests with the defendant: Janiak v. Ippolito, [1985] S.C.R. 146 at 163. [ 164 ] In Antoniali v.

Massey , 2008 BCSC 1085 at para. 31 , Preston J. outlined what a defendant must establish to demonstrate a plaintiff’s failure to participate in rehabilitative therapy in order mitigate his or her injuries: 1. that a program of stretching and conditioning under the guidance of a personal trainer would have reduced or eliminated the effect of the injuries; 2. that the reasonable plaintiff in Ms. Antoniali’s circumstances would have followed such a program; 3. that Ms. Antoniali unreasonably failed to follow such a program and; 4. the extent to which Ms.

Antoniali’s damages would have been reduced if she had followed such a program. [ 165 ] Once the plaintiff has proved the defendant’s liability for his or her injuries, the defendant must prove that the plaintiff acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question and it involves a consideration of all of the circumstances: Gilbert v. Bottle , 2011 BCSC 1389 at para. 202 . [ 166 ] The plaintiff referred to Meyers v.

Leng , 2006 BCSC 1582 in which Gropper J. concluded that it was reasonable for the claimant to eschew physiotherapy because it had not been helpful and made her feel worse. In the circumstances of this case, I do not accept the plaintiff acted reasonably in refusing to follow the doctor’s advice. Her own evidence on this point was unconvincing and contrary to her stated perceptions of physiotherapy later on. [ 167 ] The plaintiff also relied on Robbie v. King , 2003 BCSC 1553 to highlight the type of circumstance where this Court has declined to find a failure to mitigate.

In Robbie the Court said the duty to mitigate was to be considered in the context of what is realistic and reasonable for the individual. In this case, Ms. McCulloch’s explanation for refusing physiotherapy treatments after attending only two

appointments was not reasonable or realistic. In view of the purported debilitating effects of her injuries and the repeated discussions she had with her doctor about physiotherapy, she failed to take the most reasonable and practical steps to deal with her condition. [ 168 ] I accept that physiotherapy was not a service that could be expected to induce total healing or eliminate the root causes of the plaintiff’s physical complaints, but I am satisfied that the defendant has proven that physiotherapy would have ameliorated the plaintiff’s symptoms and accelerated her recovery.

This service was medically necessary to improve her functioning and facilitate a return to activities of daily living. The plaintiff was informed that physiotherapy would be beneficial in the recovery process and she unreasonably declined or failed to pursue treatment. [ 169 ] I am also satisfied that the plaintiff was not forthright with her doctor about her participation with physiotherapy and I am satisfied that this added to her failure to mitigate her losses.

The plaintiff's life would have been much improved if she had followed the doctor’s advice. [ 170 ] The defendant seeks a reduction in the plaintiff’s damages of 50% due to this failure to mitigate. The plaintiff argues that if she is found to have failed to mitigate then the appropriate reduction should be in the order of 10%: Ponipal v. McDonagh 2009 BCSC 461 at paras. 28 - 29 . [ 171 ] It is difficult to assess the measure of improvement Ms. McCulloch might have experienced if she had followed her doctor’s advice.

In Antoniali , the Court reduced pre-trial non-pecuniary damages by 15% and post-trial non-pecuniary damages by 50%. [ 172 ] In this case, I have concluded that the plaintiff’s failure to mitigate likely prolonged her symptoms and deprived her of the higher level of function over an extended period. I have decided that Ms. McCulloch’s failure to mitigate should reduce her non-pecuniary damages by 10%. IX.

Summary The plaintiff will recover: Non-Pecuniary Damages $22,500 Special Damages 1,366 Cost for Future Care 2,500 TOTAL $26,366 [ 173 ] The plaintiff is entitled to costs subject to any submissions the parties may wish to make. “Armstrong J.”