Parker v. Shah, 2013 BCSC 1599

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Parker v. Shah, 2013 BCSC 1599 Date: 20130503 Docket: 10-2163 Registry: Victoria Between: Cindy Leanne Parker Plaintiff And: Mohammed Husain Shah Defendant Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Counsel for the Plaintiff: D. MacIsaac K. Pritchard, Articled Student Counsel for the Defendant: S. Farquhar Place and Date of Trial/Hearing: Victoria, B.C. March 18-20, 2013 Place and Date of Judgment: Victoria, B.C. May 3, 2013 [ 1 ] THE COURT : The plaintiff, Ms.

Cindy Parker, was involved in a motor vehicle accident with the defendant, Mohammed Shah, on 22 October 2008. Ms. Parker had brought the vehicle she was driving to a stop in a construction zone in Langford, B.C., when her vehicle was struck from behind by the vehicle being driven by Mr. Shah. The force of the collision propelled Ms. Parker's vehicle forward, causing it to collide with the vehicle that was stopped in front of her. [ 2 ] Mr. Shah has admitted responsibility for the accident. [ 3 ] In this action, Ms.

Parker seeks a monetary award under the following heads of damages: non-pecuniary damages for pain and suffering and loss of enjoyment of life, past loss of income and benefits, future care costs, loss of future earning capacity, and special damages. Ms. Parkers Pre-Accident Condition Health / Activities [ 4 ] Ms. Parker is 37 years old. She has been married to her husband, Anthony Parker, for the past 14 years. Together, they are the parents of two young children aged nine and six. [ 5 ] In 1997, Ms.

Parker was involved in a motor vehicle accident where the vehicle she was driving was struck from behind by another vehicle. The accident resulted in minor injuries to Ms. Parker, and after a short period of chiropractic treatment, as well as physiotherapy and massage therapy, her injuries healed. [ 6 ] Ms. Parker has a history of mood disorder and depression dating back to the mid-1990s.

In December 2007, she was still dealing with depression, a condition that was being exacerbated by the stresses and challenges associated with parenting two young children while also working 33½ hours per week. [ 7 ] In 2006, Ms. Parker took up long distance running. By 2008, she was running three to four times a week and completing half marathons. [ 8 ] In April 2008, Ms. Parker met with her family doctor to discuss her continued use of antidepressant medications. The doctor strongly recommended that Ms. Parker continue with the medications, given her continuing symptoms. Ms.

Parker, however, decided not to follow that advice and stopped her use of those medications. [ 9 ] On account of the stresses associated with her home and work life, as well as the physical strain of her long distance running, in 2008 Ms. Parker began experiencing soreness and tension in her neck and upper back.

[ 10 ] In May of 2008, Ms. Parker saw her chiropractor, Dr. Jenny Armstrong, for aches and pains she was experiencing because of her long distance running. Ms. Parker acknowledged in cross-examination that she completed an intake form indicating the following "areas of concern": headaches, neck, jaw, shoulder, arm, upper back, mid back, and low back, and that all of these were in relation to her work. She also noted her right hip and her wrist were areas of concern. Ms.

Parker explained that she noted these areas not because she was actually suffering any symptoms or pain but because they were areas of "interest" to her and she wanted to maintain her conditioning and health in these areas. I found Ms. Parker's explanation unconvincing and in my view she attended the chiropractor because she was feeling work-related strain and discomfort in those areas. [ 11 ] In my opinion, the evidence supports the conclusion that in the six-month period prior to the October 2008 accident, Ms.

Parker was suffering from mild work-related and exercise-related pain, particularly in her neck, shoulders, and back. She was also continuing to deal with her emotional issues. Employment [ 12 ] In 1997, Ms. Parker graduated from the Camosun College dental hygienist program. Shortly after graduating, she began working six days a week as a registered dental hygienist at a dental clinic in Victoria. [ 13 ] In or around 2000, Ms. Parker took a leave of absence to study at the University of British Columbia in Vancouver. She was a part-time student and also worked part-time as a dental hygienist in New Westminster.

Ms. Parker graduated from the University of British Columbia with a Bachelor's Degree in Dental Science in November 2002. Shortly thereafter, she returned to Victoria where she began working as a dental hygienist in various clinics. [ 14 ] In 2005, Ms. Parker began working as a registered dental hygienist with her present employer, the Colwood Dental Group. It is clear to me that Ms. Parker is a qualified and experienced dental hygienist and, given her academic pursuits, is someone who appears to take her profession seriously. [ 15 ] In the fall of 2008, just prior to the motor vehicle accident, Ms.

Parker was working approximately 33½ hours per week with the Colwood Dental Group earning approximately $44.50 per hour. Motor Vehicle Accident: 22 October 2008 [ 16 ] On 22 October 2008, Ms. Parker had brought the vehicle she was driving to a complete stop in a construction zone, and as I have previously noted, it was struck from behind by Mr. Shah's vehicle. The force of the collision propelled Ms. Parker's vehicle forward and caused it to strike the vehicle that was stopped in front of her. The damage to Ms. Parker's vehicle is evident in the photographs that have been entered as exhibits at trial.

The front and rear portions of the vehicle were damaged, and the front bumper required duct tape to secure it. Ms. Parker was able to drive her vehicle home; however, it was subsequently written off by her insurer who paid her $5,600 for the vehicle. Treatment [ 17 ] Within hours of the accident, Ms. Parker attended at a local medical clinic complaining of ringing in her ears and a warm burning sensation in her neck and back. The attending physician prescribed anti-inflammatory and muscle relaxants. [ 18 ] Two days after the accident, Ms. Parker saw her family physician, Dr.

Michael Vaughan, complaining of continued ringing in her ears, a soreness and warmth in her temporomandibular joint, and pain in her neck, shoulders, and lower back. She was also experiencing tingling in her left arm and hand. [ 19 ] Dr. Vaughan continued to treat Ms. Parker until his retirement in 2009. Since then, Dr. Lynne MacKean has been Ms. Parker's treating physician. [ 20 ] Since the date of the accident, Ms. Parker has undergone a number of types and forms of treatment, including physiotherapy and massage therapy, chiropractic treatments, acupuncture, Botox injections, and prolotherapy treatments.

Medical Opinions [ 21 ] Ms. Parker relies upon the expert medical opinions that are contained in reports authored by Dr. Vaughan and Dr. MacKean. In his report dated 18 December 2009, Dr. Vaughan concluded: . . . Mrs. Parker suffered soft tissue injuries to upper back, neck, shoulders and lower back from her MVA on October 22, 2008. Despite a multitude of modalities including physiotherapy, massage therapy, chiropractic treatments, acupuncture and visits to two specialists Dr. Lynne MacKean, rehabilitation specialist and Dr. Paul Winston, physical medicine and rehabilitation specialist, Mrs.

Parker's symptoms remain essentially unchanged. As you may be aware soft tissue injuries like these can have protracted course taking weeks, months and sometimes longer to resolve. I am at a loss to explain the very protracted nature of Mrs. Parker's symptoms since it is now over a year since the accident. I have exhausted my armamentarium and would suggest you do communicate with Dr. MacKean and Dr. Winston as to what further options they suggest with respect to treatment and rehabilitation of the patient.

Also I am unable to offer a credible prognosis at this time. [ 22 ] In her medical report dated 7 December 2011, Dr. MacKean concluded, under the heading "Impression": Cindy has persistent mechanical left mid thoracic spine pain with muscular tightness involving the mid thoracic paraspinals and discomfort along the left medial scapular border. In my opinion, these persistent problems are due to injuries sustained in the motor vehicle accident that occurred on October 22nd, 2008.

It has been over three years following the date of the motor vehicle accident and she has had persistent pain symptoms that have not settled down over time. She probably will have persistent left upper back pain symptoms into the unforeseeable future. [ 23 ] In her follow-up report dated 3 October 2012, Dr. MacKean confirmed her earlier opinions regarding Ms.

Parker's condition and again observed under the heading "Impression": Chronic mid thoracic spine pain primarily involving the left T7 and T8 levels with chronic muscular tightness and pain involving the left mid to lower thoracic paraspinal muscles and left medial scapular region. In my opinion these persistent problems are due to injuries sustained in the motor vehicle accident that occurred on October 22nd, 2008. It has been almost 4 years following the date of the motor vehicle accident and she is most likely close to the point of maximal medical improvement.

She has not seen relief so far with the injections that Dr. Vincent has been doing. She has tried every other type of therapeutic modality that I can think of to try to help relieve the pain and she is also working on regular exercises. [ 24 ] At the request of the defence, Ms. Parker was interviewed and examined by Dr. James Warren, an orthopedic surgeon. That examination occurred on 17 February 2010. In his report, Dr. Warren concluded: Ms. Parker appears to have ongoing symptoms in her left scapular muscles, along the medial border of the left scapular and in the muscles of the left chest wall.

She has no apparent abnormality referable to the cervical or dorsal spine other than some tenderness in the muscles, and there are no objective findings. Her symptoms have essentially plateaued over the past year without significant improvement despite what appears to be an active physical treatment program. ...

The nature of the injury she sustained is probably more related to her left shoulder girdle than a whiplash injury and it would appear that she had a transient brachialgia in the early post-accident period with numbness or altered sensation experienced in the thumb and 5th finger which resolved after eight weeks. She has been left with some residual muscular discomfort that I think has been perpetuated by her underlying history of depressive disorder though she denied it when I questioned and canvassed her for symptoms. [ 25 ] Dr.

Warren acknowledged that he is not a psychologist or a psychiatrist and his opinion with respect to the underlying depressive disorder is a limited one. Causation [ 26 ] Having considered all of the evidence, I am satisfied that at the time of the accident Ms. Parker did suffer from some mild discomfort and soreness in her neck and back resulting from her work, home life, and exercise regime. She also continued to exhibit symptoms relating to her depression.

However, I am equally convinced that the motor vehicle accident of 22 October 2008 caused or contributed to additional mild soft tissue injuries to her neck, shoulder and back, as well as minor pain and discomfort to her arm and hand. Non-Pecuniary Damages [ 27 ] Ms. Parker submits that she is entitled to a monetary award for pain and suffering, loss of enjoyment of life, and loss of housekeeping capacity. In seeking an award of $65,000 for these non-pecuniary damages, Ms. Parker relies upon the following case authorities: Bafaro v. Jiang , 2007 BCSC 686 ; Boyle v. Prentice , 2010 BCSC 1212 ; Bradshaw v.

Matwick , 2009 BCSC 564 , varied on appeal 2011 BCCA 111 ; and Keenan v. Fletcher , 2011 BCSC 520 ; Knight v. Belton , 2010 BCSC 1305 , and 2012 BCSC 387 . [ 28 ] The defence argues that the proper award for non-pecuniary damages in the present case is $35,000. Specifically, the defence argues that Ms. Parker's back pain should have resolved by the end of 2011 and that any residual physical problems she continues to suffer are on account of her work, her pre-existing depression, and/or the results of her long distance running. In support of this position, the defendant cites the following case authorities: Chu v.

Ponsford , 2008 BCSC 429 ; Smith v. Wirachowsky , 2009 BCSC 1434 ; Dutchak v. Fowler , 2010 BCSC 128 ; and St. Germain v. Jemmott , 2012 BCSC 1041 . [ 29 ] I accept the defence's argument that some of the ongoing pain and discomfort Ms. Parker suffers from results from causes other than the October 2008 motor vehicle accident. However, I reject the suggestion that Ms. Parker is exaggerating the symptoms she says are attributable to the accident. On the medical evidence presented at trial, I am satisfied that Ms. Parker did suffer soft tissue injuries to her neck, shoulder and back as a result of the accident.

The injuries to her arm and to her hand healed within a short period of time. [ 30 ] I accept Ms. Parker's evidence that she continues to suffer from some residual stiffness and discomfort in her neck, back and shoulders. In reaching this finding, I have considered and accepted the evidence of Anthony Parker, Ms. Parker’s husband; Mr. Kerry Zado, one of Ms. Parker’s runner partners; Ms. Christine Wright, Ms. Parker’s work colleague; and Ms. Parker’s friend and neighbour, Ms. Amy Adams. The evidence before me also persuades me that the ongoing symptoms that Ms.

Parker continues to complain of have only had a very mild influence on her enjoyment of life and her day-to-day activities. She has returned to work, albeit at a reduced number of hours. She continues to be an active volunteer at her children's school. She continues to do housework, although her husband and children are now more involved. Of significant importance, in my opinion, is the fact that Ms. Parker has returned to her pre-accident level of competitive running. Since the 2008 motor vehicle accident, Ms. Parker has successfully completed ten half- marathons and one full marathon.

In October 2012, a month before running her full marathon, Ms. Parker was running four times per week for a total of approximately 54 kilometres per week. [ 31 ] In my view, an appropriate award for non-pecuniary damages in Ms. Parker’s case is $50,000. Past Income Loss

[ 32 ] Prior to the accident, Ms. Parker worked 33½ hours per week as a registered dental assistant. After the accident, Ms. Parker was off work until March 2009 when she attempted a gradual return to work. At first she worked nine hours per week. By April 2009, she had doubled that time to 18 hours per week, and by June 2010, she was working 21 hours per week. [ 33 ] Ms. Parker was paid approximately $40,000 by her medical employment insurance and then the Insurance Corporation of British Columbia for her lost wages from the date of the accident until approximately May 2010.

The question now before me is what amount, if any, should Ms. Parker receive for her claim of lost opportunity to earn income from May 2010 to March 2013? [ 34 ] Ms. Parker argues that she has followed the advice of her physicians and consequently has not exceeded 21 hours of work per week. Dr. MacKean confirmed that she gave Ms. Parker that advice as it was her opinion that an increase in hours would result in Ms. Parker's experiencing more pain and discomfort. Dr. MacKean agreed that her opinion was only based upon the subjective observations she made of Ms. Parker and Ms.

Parker’s own self-reporting. [ 35 ] While it may well have been the case that 21 hours per week was the maximum Ms. Parker could work, I find she made no serious attempt to determine whether she could increase her hours back to the pre-accident level of 33½ hours per week. In my opinion, Ms. Parker should have made a more concerted and structured attempt to return to her regular working hours.

A failure to maintain those hours on account of the pain and discomfort associated with her accident injuries would have provided solid evidence in support of her claim for past wage loss. [ 36 ] On the evidence before me, I am not convinced that Ms. Parker could not have returned to her pre-accident work hours. In that regard, I accept the submission of the defendant that Ms. Parker should have been able to gradually return to 33½ hours per week by the spring of 2011. Given a loss of 12½ hours per week for the entire year at an hourly wage of $44.50, I find Ms.

Parker's past income loss amounts to $29,000. [ 37 ] Ms. Parker also argues that on account of her accident injuries and her reduced hours of work, she has been unable to maximize the contributions her employer makes on her behalf to the Canada Pension Plan. In the result, she claims an additional $950 for this loss. The evidence before me indicates that Ms. Parker did not maximize her contributions in a number of years prior to the motor vehicle accident; that is, in 2004, 2006 and 2007. Why she did not do so is not clear to me.

The birth of her children and the associated parental leaves she took may provide some explanation, but in my view it does not address the issue in its entirety. With this history of inconsistent annual contributions, I find it would be speculative on my part to conclude that Ms. Parker would have made the maximum contribution in the years following the accident. I therefore reject this portion of Ms. Parker's claim. Future Care Costs [ 38 ] Since the date of the accident, Ms.

Parker has followed a number of treatments and rehabilitation programs, including massage therapy, physiotherapy, acupuncture, and chiropractic treatments. She has also spent a little over $1,000 on medication. [ 39 ] Dr. MacKean recommends that Ms. Parker continue with her fitness and exercise classes. She also indicates that Ms. Parker can continue with chiropractic and massage therapy "if they provide her with relief of pain symptoms". However, Dr. MacKean does not think that these therapeutic modalities will provide Ms.

Parker with any significant relief. [ 40 ] In my view, it is not unreasonable to conclude that Ms. Parker will, on occasion, require some form of treatment or therapy for the residual consequences from the accident in question. She will also likely have to take the occasional medication to manage the discomfort associated with those symptoms. I do not, however, accept that the extent of these treatments and medication is as significant as suggested by Ms. Parker. [ 41 ] In my view, an award of $4,500 will sufficiently address Ms. Parker's future care costs.

Loss of Future Earning Capacity [ 42 ] As I have already noted in my reasons addressing Ms. Parker's claim for past wage loss, I am not convinced that the residual symptoms from the motor vehicle accident prevented her or will prevent her from returning to her pre-accident work

schedule of 33½ hours per week. I have also taken note of Ms. Parker's candid admission during cross-examination that her present work week of 21 hours fits perfectly with her present lifestyle and family needs. [ 43 ] Ms. Parker is 37 years old. Prior to the accident, she planned on retiring at 57. According to Ms. Parker, that plan has not changed. [ 44 ] A plaintiff seeking an award under this head of damage must satisfy the court that there is a real and substantial possibility of a future event leading to an economic loss. I accept Ms.

Parker's evidence that she continues to feel the occasional pain in her neck, shoulder, and back. I also accept that most of that pain is attributable to the motor vehicle accident. I say most of that pain because I find some of her discomfort likely results from the stresses and strains associated with managing a busy home with young children and the aggressive exercise regime that she follows. [ 45 ] In my view, there is a real and substantial possibility that the discomfort Ms. Parker feels in her neck, shoulder and back may, on occasion, over the next 20 years, prohibit her from working.

With that in mind, I will award her $15,000 for her loss of future earning capacity. Special Damages [ 46 ] Ms. Parker asserts that because she had to reduce her work hours following the accident, she and her husband had to borrow funds from a line of credit with a rate of interest of 3.5 percent beginning in June 2010. Ms. Parker claims that her use of the line of credit was solely on account of her accident injuries and reduced wages, and consequently, she seeks compensation of $1,775 in interest she has paid.

[ 47 ] In my view, Ms. Parker should receive a partial award for this expense. As I have already noted, I am not persuaded that Ms. Parker could not have returned to her 33½ hours’ work by the spring of 2011. By that date, there should not have been an accident- related need to rely upon the line of credit. I will award Ms. Parker $500 for the interest expense claimed. [ 48 ] Ms. Parker has expended approximately $8,500 for the various treatments and medications she says she required on account of the accident-related injuries. Some of these expenses were paid for by her extended medical health plans. Ms.

Parker was unable to say with any degree of confidence whether she was required to repay these extended medical health plan benefits from any award she receives from the court. That evidence is unsatisfactory and, in my view, it should have been quite easy for Ms. Parker to determine that prior to trial. [ 49 ] The onus is on Ms.

Parker to prove her claim and, in this instance, I am not satisfied on the evidence before me that she will have to repay her extended medical health plans. [ 50 ] The defendant argues that a reasonable award under this head of damage would be $6,500, as some of the expenses are not solely attributable to the accident injuries and that Ms. Parker's rigorous running regime required her to seek out some of the treatments. I agree with the defendant's submission in this regard, and award Ms. Parker $6,500 for her special damages associated with her past care costs.

Order [ 51 ] In the result, I find for the plaintiff in this action, and I make the following award of damages: Non-pecuniary damages: $ 50,000 Loss of past wages and benefits: $ 29,000 Future care costs: $ 4,500 Loss of future earning capacity: $ 15,000 Special damages: $ 7,000 Total: $105,500 [ 52 ] Unless there is a need to make submissions on the issue of costs, Ms. Parker is entitled to her ordinary costs in this action. Counsel can advise me, through the registry, if the issue of costs needs to be addressed. “G.R.J. Gaul J.”