Bott v. Thomson, 2021 BCSC 1270

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bott v. Thomson, 2021 BCSC 1270 Date: 20210629 Docket: M159616 Registry: Vancouver Between: Nicole Heather Bott Plaintiff And Michael Wayne Thomson, Gordon Andrew Knight and Satinderjit K Sandhu Defendants - and - Docket: M207157 Registry: Vancouver Between: Nicole Heather Bott Plaintiff And Teresa Ann Vegh Defendant Before: The Honourable Mr. Justice Walker Reasons for Judgment Counsel for the Plaintiff: Y. Wong Counsel for the Defendants: O.L. Wilson J.V. Mansfield Place and Dates of Trial: Vancouver, B.C.

April 26-30 and May 3-7, 2021 Place and Date of Judgment: Vancouver, B.C. June 29, 2021 Table of Contents Introduction .. 3 Background: Ms. Bott .. 4 Injuries and Symptoms .. 6 Expert Evidence .. 12 Dr. Gordon Robinson .. 13 Dr. David Flaschner 17 Dr. Steven Dommann .. 20 Dr. Marc Boyle . 21

Jerica Ditson .. 21 Sheryl Thompson .. 23 Sleep Apnea and Vitamins .. 25 Botox: Failure to Mitigate Defence .. 27 Non-Pecuniary Damages .. 34 Loss of Housekeeping Capacity .. 37 Past Wage Loss .. 38 Kerrisdale Cameras . 38 Photography Business . 40 Conclusion . 43 Loss of Future Income Earning Capacity .. 43 Employment with Kerrisdale Cameras . 46 Photography Business . 51 Conclusion . 52 Cost of Future Care .. 52 Special Damages .. 54

Summary .. 56 Introduction [ 1 ] The plaintiff, Nicole Bott, was injured in two motor vehicle accidents. [ 2 ] The first one occurred on December 17, 2013 (“MVA 1”) while Ms. Bott was stopped in traffic. She had her foot on the brake when she heard a loud noise, and as she was bracing herself holding the steering wheel and looking through the rear-view mirror, her car was struck from behind and then pushed into the car in front of her. The impact was significant enough to cause her glove box to pop open and its contents to fly out. The soft tissue injuries she suffered have left Ms.

Bott with significant ongoing chronic post-traumatic headaches that affect nearly every aspect of her daily life and impair her ability to work. [ 3 ] The second accident occurred on October 17, 2018 (“MVA 2”); it caused a temporary exacerbation of the injuries caused by MVA 1; specifically, Ms. Bott felt soreness in her neck and shoulders, and it worsened her headaches. [ 4 ] Liability was admitted on behalf of the defendant, Michael Thomson, for MVA 1. Although liability was not admitted on behalf of the defendant, Teresa Vegh, for MVA 2, it was not contested at trial.

I was satisfied from the evidence at trial that Ms. Vegh is solely responsible for that accident and like Mr. Thomson for MVA 1, find that she is liable for the injuries Ms. Bott sustained in MVA 2. [ 5 ] The evidence from all witnesses establishes that Ms. Bott’s chronic headaches have adversely impacted: (

a) her tolerance of bright light and noise (to the point where she often still finds it necessary to sit alone in a darkened, quiet room away from her husband and four-and-a-half-year-old daughter when she comes home from work); (

b) her ability to work as full-time store manager for the Langley Branch of the family-owned Kerrisdale Cameras; (

c) her participation in social activities and outdoor physical activities (such as hiking and photography walks, camping, and cycling) with her family and friends; (

d) her ability to carry out household tasks including yard maintenance (she now relies on her husband to carry out most of the household duties); and (

e) her ability to carry on with her separate photography business. [ 6 ] The parties agree that key issue at trial is whether the defendants have established that Ms. Bott has failed to mitigate her loss because she has not taken Botox injections, which have been recommended as a potential treatment protocol for symptom management. The outcome of this issue has a significant impact on the assessment of damages. [ 7 ] The facts set out in these reasons are my findings of fact. Background: Ms. Bott [ 8 ] Ms. Bott was born in December 1987 and was about to turn 26 years old when MVA 1 occurred.

She was born and raised in Langley, BC, where her parents and siblings continue to reside. She completed her high school education in 2005. Ms. Bott has always

been interested in photography and pursued it as a hobby in high school (she took pictures of the local junior hockey team). The quality of her work was well-received and parents of children on the team asked to purchase her photos of their children. After graduation, she completed a photography course through correspondence. [ 9 ] Ms. Bott met her future husband in May 2008. Their attraction was immediate and they moved in together at the end of that year. They purchased a condominium in Langley, became engaged in May 2009, and were married in May 2010. [ 10 ] Ms.

Bott’s strong work ethic pervades all of her past and current employment. Prior to MVA 1, she worked part-time as a server at a restaurant in Cloverdale and was so highly thought of that when her manager left to open his own restaurant in Maple Ridge, he asked Ms. Bott to move with him, which she did in 2012. She was later promoted to manage the restaurant’s servers. [ 11 ] Owing to her love of photography, in December 2011, Ms.

Bott also secured part-time work at a newly opened branch of the Lens & Shutter enterprise located at the Willowbrook Mall in Langley. [ 12 ] The restaurant manager also operated a catering business. He asked Ms. Bott to team up with him as a presenting vendor at weddings shows and to offer photography service as an adjunct to his proposal to cater weddings. She agreed and went about creating a website, securing credit cards, and making promotional materials for her new business, which she presented at wedding shows. She secured contracts and slowly began to build up a portfolio to show potential new clients.

Through word of mouth from happy customers, her business expanded beyond weddings to include family portraits, maternity and baby photos, and real estate listings. Her husband helped her from time to time, acting in the role of “second shooter”. Ms. Bott’s increasing photography work did not impact on her work at the restaurant or at Lens & Shutter. [ 13 ] Business at Lens & Shutter’s Langley store struggled over time and in May 2013, Kerrisdale Cameras took it over. Lens & Shutter’s struggles had nothing to do with Ms. Bott. Once Kerrisdale Cameras acquired the store, its owner, Ms.

Linda Hudson, realized how valuable Ms. Bott was as a salesperson and recognized her capacity to look after the store. Ms. Hudson eventually promoted her to manager when the previous manager moved to take another store location. Ms. Hudson continues to hold Ms. Bott’s managerial skills and work ethic in very high regard despite Ms. Bott’s ongoing difficulties to work full-time hours resulting from the injuries she sustained in MVA 1 and MVA 2. [ 14 ] Over time between 2012 and MVA 1, Ms. Bott decreased her hours at work at the restaurant and increased her hours at the Kerrisdale Cameras store.

By the time MVA 1 occurred, she was working full-time as a salesperson for Kerrisdale Cameras and no longer working for the restaurant, although she was still working at her photography business. [ 15 ] Ms. Bott suffered injuries in a prior motor vehicle accident which have no nexus to the injuries she suffered in MVA 1 and MVA 2. In January 2012, she was injured in a motor vehicle accident that caused neck stiffness, headaches, and a bruised knee. She was substantially improved by early summer of that year. In early October 2012, she complained of neck pain to her family doctor.

An entry in the doctor’s records for October 4, 2012 is the only record of the complaint prior to MVA 1. I am satisfied that thereafter, Ms. Bott was effectively symptom-free and suffered no restriction in her vocational and avocational pursuits from the injuries she sustained in the 2012 motor vehicle accident. There is no suggestion in the medical evidence of any nexus between the injuries she sustained in that accident and those she suffered in MVA 1 and MVA 2. [ 16 ] In February 2013, Ms. Bott dislocated her left shoulder when she slipped on some stairs.

She attended a local hospital emergency department where her shoulder was reduced. She wore a sling for a few weeks and received physiotherapy treatment for a time. She was left with residual, occasional soreness and numbness if she raised her arm which made it difficult for her to carry heavy trays in her job as a server, but her injury did not otherwise impact her daily activities. She consulted her family doctor in late September 2013 who, on examination, found limited range of motion. Ms. Bott was advised to stop working as a server and was referred to an orthopedic surgeon.

Her left shoulder remained symptomatic until the injury was fixed through orthopedic surgery in January 2015. Apart from this injury, Ms. Bott was in good health when MVA 1 occurred. [ 17 ] She and her husband divided the household duties equally prior to MVA 1, although Ms. Bott left the bathrooms to Mr. Bott. Injuries and Symptoms [ 18 ] As mentioned, in MVA 1 Ms. Bott’s vehicle was struck from behind, causing her to be pushed into the vehicle in front of her. The airbags in her vehicle did not deploy. Emergency personnel attended the scene. Ms. Bott thinks she may have hit her head on the back of the headrest.

She did not loss consciousness. She felt a rush of adrenaline but did not think she was suffering from any injuries of immediate concern, and decided to return home instead of attending the hospital. Within a few hours, however, she developed a headache and neck pain and felt irritation to her symptoms from her left shoulder injury. She went to a walk-in clinic located across the street from her home a few days later because her symptoms (neck pain, constant headaches, and irritated left shoulder) did not improve. Her headaches were her most prominent symptom. [ 19 ] She saw her family doctor, Dr.

Windy Brown, a few weeks later. Although she was still experiencing neck pain and discomfort, Ms. Bott’s main complaint was with her headaches, which she reported to her doctor. On examination, Dr. Brown found tenderness over Ms. Bott’s left trapezius and anterior shoulder region with reduced range of motion, but full range of motion in the cervical spine. She prescribed a muscle relaxant, and advised Ms. Bott to start physiotherapy (Ms. Bott complied with both treatment recommendations). [ 20 ] Ms.

Bott worked through her pain without initially taking any time off from work because she thought her symptoms would resolve quickly as they had when she was injured in 2012. She started her supervisor training with Kerrisdale Cameras in early 2014 and did her best to work to complete it, despite her symptoms. There is no suggestion by the defendants or in the medical evidence that she prolonged or worsened her injuries or symptoms or otherwise acted unreasonably in doing so. [ 21 ] Her headaches did not improve. She had difficulty with concentration and memory for tasks at work. In April 2014, Dr. Brown

referred Ms. Bott to a concussion clinic, which unfortunately did not provide any benefit for her. In July 2014, Ms. Bott and her husband moved from their townhouse to a detached home in Abbotsford where they hoped to raise a family. [ 22 ] Dr. Brown initially thought Ms. Bott’s headaches would settle down, and when that appeared not to be the case, Dr. Brown prescribed medication and, at different points in time, referred Ms. Bott to neurologists for consultation and advice. [ 23 ] In the meantime, although Ms.

Bott continued to struggle at work, she pushed through her headaches as much as she could in order to be promoted to store manager. When Ms. Bott was promoted to store manager at the end of 2014 she was trying new medication prescribed by Dr. Brown. [ 24 ] Ms. Bott’s headache symptoms persisted, most often daily. At one point, her family doctor prescribed a low dose of Topiramate, which is a migraine preventative drug. Ms.

Bott stopped using the medication after an initial trial because she found it affected her concentration and ability to drive. [ 25 ] Her ability to cope with her headaches was pushed to her limit. By 2015, her headaches continued to bother her almost daily and were considered chronic. Their intensity varied depending on activity but were significantly aggravated with computer work, exercise, and exposure to loud noise or bright light. Amongst different medications she tried, Ms. Bott’s symptoms improved when she took a trial of Nortriptyline prescribed by Dr. Brown.

Intensity reduced to two out of ten on the pain scale, but when Ms. Bott finished the medication, it surged back, with Ms. Bott reporting to Dr. Brown that she suffered headaches so severe as to rank 15 out of ten on a one- to-ten pain scale. [ 26 ] Her left shoulder surgery was carried out in January 2015 to fix a tear and small impaction fracture discovered with an MRI conducted in April 2014. Ms. Bott was away from work for a week. [ 27 ] In the summer of 2015, Ms.

Bott was referred to a neurologist, which led to trials of other medications, sleep studies and sleep apnea therapy (because she was having trouble sleeping and experienced daytime drowsiness), and further referrals. The medications (which led to negative side effects), sleep studies, and related treatments all failed to provide any real improvement in Ms. Bott’s symptoms. A CT head scan conducted in November 2014 was normal. [ 28 ] Dr. Brown recommended that Ms. Bott take some time away from work for “brain rest”, and Ms. Bott reluctantly agreed to give it a try.

Fortunately, her performance at Kerrisdale Cameras was so highly valued that Ms. Hudson agreed to hold her position for Ms. Bott while she went on leave starting in early 2016. Her leave was initially scheduled for one month but was extended to seven weeks. The frequency and intensity of Ms. Bott’s headache symptoms improved significantly the longer she stayed away from work and in spite of additional stress due to her husband’s medical issues. [ 29 ] Ms. Bott found out during her leave that she was pregnant. While she was away from work, Ms.

Hudson changed the lighting in the store to reduce the glare and intensity of the lights and bought Ms. Bott a new low-intensity monitor that is designed to be easier to view and reduce eye strain. [ 30 ] Ms. Bott’s improved headache symptoms on her return to work did not last. It did not take long for her headaches to return to their pre-leave level. [ 31 ] Ms. Bott took maternity leave starting in late September 2016. Her daughter was born in early October.

During her maternity leave, she followed all medical advice, underwent an overnight sleep test, was referred to a different neurologist (who put her on different medication, Gabapentin), and attended osteopathy treatments (for craniosacral therapy which provided some symptom relief). Gabapentin caused Ms. Bott to experience panic attacks, anxiety, racing heartbeat, and shortness of breath. She was prescribed anti- anxiety medications and referred to a psychiatrist for consultation. [ 32 ] At one point, Ms.

Bott was diagnosed with sleep apnea and provided with a CPAP machine as it was thought that it would help improve the headache symptoms. The machine did not provide any improvement and Ms. Bott discontinued its use. Dr. Gordon Robinson, a neurologist who testified in Ms. Bott’s case, is one of Canada’s leading experts in the diagnosis and treatment of headaches. Dr. Robinson’s opinion, which I accept, is that Ms. Bott does not suffer from sleep apnea. [ 33 ] Ms. Bott’s headache symptoms improved over the course of the year she was off work while on maternity leave.

Nonetheless, she found it difficult to maintain the family home. Towards the end of her maternity leave, and just before returning to work, Ms. Bott and her husband decided to sell their home and move to a smaller townhouse in Surrey, where they would also be closer to her mother who could help with care for their daughter. [ 34 ] Ms. Bott’s optimism for a successful return to work in the fall of 2017 was in vain. It was not long before her mild or dull headaches, which she experienced nearly daily on waking in the morning began to worsen in intensity by mid-afternoon.

When her headaches became severe when she was at the store, she would retreat to the back to avoid the lights and noise from the sales area. She usually left work tired, with a “full force” headache (with migrainous throbbing qualities) that left her upset and often distraught and in tears. At times the headaches were so bad that Ms. Bott had to leave work early, or be urged to do so by the store’s highly regarded shift supervisor who observed Ms. Bott’s distress. Ms.

Bott continued to struggle, doing her best to cope at the Kerrisdale Cameras store and when she had to come late to work, leave early, or stay home due to her symptoms, she tried to manage the store remotely from home, often fielding calls from staff. Whether she left early or not, Ms. Bott would typically head straight to a darkened and quiet room to the upset and consternation of her husband and young daughter. [ 35 ] Ms.

Bott ultimately reduced her work hours at the Kerrisdale Cameras store to four days a week (40 hours per week to 30 or 32), but as store manager, continues to take calls from staff when she was at home. The frequency and intensity of her headache symptoms improved as a result of her reduced work hours. Nonetheless, she remains fatigued at the end of each work day and more particularly at the end of her work week. [ 36 ] MVA 2 occurred on October 17, 2018 as Ms. Bott was leaving work. She was struck from behind in the Willowbrook Mall

parking lot. The collision was minor in nature compared to MVA 1 and did not cause any damage to her vehicle. After impact, Ms. Bott felt sore in her neck and shoulders. Her headaches worsened. Her symptoms improved with physiotherapy sessions over the course of four weeks. Her neck pain (but not her headaches) was greatly improved within a couple of months and not disabling. By mid-December 2018, she felt she was back to her pre-MVA 2 baseline condition. She told Dr.

Brown in late November 2018 that with continued reduced working hours to four days per week, the intensity of her headaches had improved and were no longer occurring regularly. As store manager, Ms. Bott, however, is not always able to limit her work hours, and as I pointed out, she manages the store remotely when she is at home. [ 37 ] In addition to continuing to recommend that Ms. Bott work reduced work hours, Dr. Brown recommended Ms. Bott consider Botox injections to her head and temples as a possible treatment. However, in light of Ms.

Bott’s apprehension over injections of the neurotoxin found in the Botox formula, Dr. Brown recommended Ms. Bott undergo trigger point injections (these involve needles but no liquid). [ 38 ] Starting in 2019, Ms. Bott received trigger point injections at Muscle MD to her head and neck, which she tolerated, but found did not improve her headache symptoms. When the needles were applied to her temples, she suffered an adverse reaction. Ms. Bott felt as if she suffered another trauma to her head, which made her even more reluctant to receive Botox injections to her head and temples.

She decided to pursue chiropractic and massage therapy and found they provided some benefit for her symptoms. She also continued to try to reduce her work hours as much as possible, and when she did, she found her symptoms improved, reducing the number of times she would have to come home from work and go directly to her bedroom to sit in a dark, quiet room. [ 39 ] Ms. Bott’s right shoulder became symptomatic in May 2020 which was helped with massage therapy. Her family doctor thought it was a recurrence of the injury she sustained in the 2012 motor vehicle accident. In February 2021, Ms.

Bott injured her left shoulder and back reaching into the back of her car. None of these injuries or symptoms have any relevance to the injuries she suffered in MVA 1 and MVA 2, and although caused a temporary adverse impact to Ms. Bott’s home life and avocational pursuits, they did not impair her ability to work. These injuries are not relevant to Ms. Bott’s damages award. [ 40 ] Due to her headache symptoms, Ms.

Bott has not been able to maintain her photography business because she finds the editing process (involving sustained computer work) and the long days of shooting wedding photos both aggravate her headache symptoms. [ 41 ] Ms. Bott is greatly concerned about her future with Kerrisdale Cameras in light of her persisting headaches. I deal with the contingencies surrounding her employment in the loss of future income section. [ 42 ] From accounts provided by lay witnesses, Ms.

Bott’s pre-accident happy, outgoing disposition, frequent socialization with friends and family, and physical activities have been significantly impacted by the injuries she sustained in MVA 1. Despite some improvement in her headache symptoms with reduced work hours, she still has days where she needs to retreat to a darkened quiet room when she gets home from work. Ms. Bott’s struggles to maintain relationships and activities in spite of her pain are obvious to her family and friends. She is quite often irritable and short-tempered. Her marriage (including intimacy) are also affected.

She is unable to enjoy unrestricted physical activities with her daughter (e.g., she struggles to get down to the floor to play with her). She is still reluctant to engage in social activities due to her headaches and fatigue. I was impressed by her husband’s ongoing love, devotion, and support to Ms. Bott and the day-to-day care and maintenance of their daughter and home in the face of Ms. Bott’s frequent and ongoing need to withdraw from their family life due to her headache symptoms. A key reason the Botts sold their home in Abbotsford was Ms.

Bott’s inability to cope with household maintenance due to her symptoms. Expert Evidence [ 43 ] The expert evidence establishes that Ms. Bott’s most significant ongoing issue is with her headaches, which she will face for the remainder of her life in various degrees. It is possible that her headaches may improve during menopause, and possibly through Botox injections, but otherwise, her symptoms will have to be managed through reduced work hours and physical conditioning. Dr. Gordon Robinson [ 44 ] Dr.

Gordon Robinson is regarded as one of Canada’s foremost experts in the diagnosis, prognosis, and treatment of headaches and restricts his practice to that area of medicine. The neurologist retained by the defendants acknowledged that he would defer to Dr. Robinson in this field due to Dr. Robinson’s expertise. [ 45 ] He met with and assessed Ms. Bott on November 4, 2017, approximately one month after she returned to work from maternity leave.

It is clear to me from reading his report dated November 9, 2017 and after hearing his testimony that his assessment was thorough and the opinions he provided in his report unquestionably objective. [ 46 ] Dr. Robinson diagnosed Ms. Bott to suffer from persistent or chronic post-traumatic headaches with some symptoms common to migraines due to her whiplash injury sustained in MVA 1. His diagnosis is excerpted from his report below : 79.

I believe that her history and examination is consistent with a diagnosis of chronic posttraumatic headache related to whiplash injury sustained in the December 17, 2013 collision. 80. Headache is a common symptom following soft tissue injury to the neck. The head pain may have various characteristics that are similar to primary headaches such as migraine and tension type headaches. 81. Migraine is characterized by a throbbing discomfort which may be one-sided. Attacks are of moderate to severe intensity and may be associated with gastrointestinal upset and sensitivity to light and sound … …

83. Many patients will have a constant background discomfort upon which moderate to severe headache episodes may occur. Triggers or aggravators to the condition often include physical activities requiring repetitive neck movement or the need to maintain a fixed neck position. … 86. Basic research has demonstrated that noxious stimuli arising from the upper spinal cord may activate trigeminal sensory pathways. This appears to be an explanation of the long observed clinical association between upper neck injury and chronic headache of a migrainous variety.

This connection is further demonstrated in studies where local anesthetic is injected into the upper joints of the neck (facets). In some selected cases this results in an abolition of head and neck pain during the duration of anesthesia or longer. 87. Although many patients may recover within weeks to months there is a substantial number that continue to have headache and neck pain years after the injury. Most at risk for chronic difficulties are females probably due to their longer, more slender neck with less developed musculature.

Other negative prognostic factors include patients who were struck without warning, while the head was turned, the presence of a previous neck injury, underlying degenerative neck disease and/or advanced age. 88. The underlying cause of the development of chronic pain following neck injury is unknown. Although the term “soft tissue injury” is often used there is no evidence that the soft tissues (muscles and ligaments) sustain any permanent damage.

It has been hypothesized that damage to the facet joints (see above) may be responsible for persisting neck pain that may be associated with headache in some patients. [Emphasis added] [ 47 ] In cross-examination, Dr. Robinson said that for some women, remission of migraines can occur in their fifth decade, after menopause, and as they age out of the need for treatment. [ 48 ] Dr. Robinson does not think that any further investigations are required for Ms. Bott at this time. [ 49 ] In his report, Dr. Robinson opined that Ms.

Bott will experience post-traumatic headaches indefinitely, with the possibility for improvement over the next two to three years and possibly some headache-free days. He also noted, in the excerpt below, that she was doing quite well at work: 101. She does report substantial improvement in the severity of her headaches over the last few months credited to osteopathic treatments which by her description take the form of healing touch. Most probably this has had a placebo effect which will likely be persistent. 102.

She has recently returned to work and appears to be doing quite well albeit with some increased headache on workdays. 103. She has had feelings of anxiety primarily related to the impact on her life of persisting posttraumatic headache. … 110. It is now nearly 4 years since the December 17, 2013 motor vehicle accident. She will probably experience posttraumatic headaches indefinitely. However, there will probably be improvement over the next 2-3 years with fewer moderately severe headaches and possibly headache free days. 111. I do not believe that her posttraumatic headaches will worsen in the future.

She will probably be able to continue working full time in her current occupation. The main impact of her posttraumatic headaches [is] a reduction in her quality of life. [Emphasis added] [ 50 ] In his testimony, Dr. Robinson qualified his remarks, made in November 2017, explaining that his prognosis was likely “overly rosy” since Ms. Bott had only been back at work for one month when he assessed her. Dr. Robinson said the benefits Ms. Bott obtained from osteopathy treatments suggests the possibility that her symptoms could improve over time. He also explained that his comments in para. 111 above assumed that Ms.

Bott will take Botox injection treatments and that they will be effective. [ 51 ] According to Dr. Robinson, treatment for chronic headaches is difficult and the options for Ms. Bott are limited. In his report, he ruled out prescribing drugs used to prevent migraine attacks because they are effective for people who suffer aggravation of pre-existing migraines or post-traumatic headaches with migraines features, which do not apply to Ms. Bott. [ 52 ] He raised Botox injections as a reasonable consideration. According to Dr.

Robinson, Botox treatment may be helpful in reducing the severity of headaches and associated neck pain for up to three or more months following each treatment. [ 53 ] Each treatment involves 31 injections into the brow, upper forehead, temples, back of head, upper neck, and upper shoulders. [ 54 ] If there is a significant positive response, then treatment will be necessary every three months, likely for the remainder of Ms. Bott’s lifetime, at a cost ranging between $400 and $850 per treatment. [ 55 ] No large trials of Botox treatments have been conducted for patients like Ms.

Bott who are suffering from chronic post-traumatic headaches related to neck injuries; according to Dr. Robinson, his clinical experience has been positive for many patients and may result in a temporary reduction of severe symptoms: 92. The treatment of chronic headache related to head and neck trauma is usually difficult . Research is limited despite the frequency and burden of these injuries to individuals and society. As yet there is no physical therapy that has been found to be curative. At most

patients will experience temporary benefit and on occasion the headaches may be more severe following such therapy. 93. I do not believe that there is any further advice to be given other than to maintain an active lifestyle. Regular exercise directed to improving general fitness may increase the sense of well-being and ability to cope with pain. 94. Medications are often unhelpful in treating chronic posttraumatic headache. Analgesics, muscle relaxants and anti-inflammatory drugs are usually of little value.

Migraine abortive medications (triptans) such as sumatriptan (Imitrex) may be helpful when headaches have migrainous features. These may include a throbbing quality, worsening with activity, gastrointestinal upset and stimulus sensitivity. 95. She has tried triptan medication without improvement in her headaches. 96. There are a number of drugs used to prevent migraine attacks. These include beta-blockers, calcium channel blockers, tricylic antidepressants and anticonvulsant medications.

These medications are occasionally used in chronic posttraumatic headache being most efficacious for patients who have an aggravation of pre-existing migraine or posttraumatic headaches with migrainous characteristics. 97. She has had trials of many daily medications including nadolol, amitriptyline, nortriptyline, topiramate and verapamil without any decrease in her posttraumatic headaches. I do not believe that there are any other preventative medications to suggest to her. 98. OnabotulinumtoxinA (Botox) injections may be helpful in headache related to head and neck trauma.

Botox has been approved by Health Canada for the treatment of chronic migraine. Although large trials are not available evaluating the neurotoxin in chronic post- traumatic headache related to neck injury clinical experience has been positive for many patients. 99. Headaches and neck pain may be less severe for up to 3 or more months following administration of the neurotoxin. The side effects of the treatment are minimal and there are no known long-term risks. If there is a substantial response the treatments will be required every 3 months, usually indefinitely.

The cost may be prohibitive for some patients ($400-850) however most third-party payers cover the drug cost. 100. Botox would be a reasonable consideration. [Emphasis added] [ 56 ] In cross-examination, Dr. Robinson opined that Ms. Bott probably does not suffer from symptomatic obstructive sleep apnea. He explained that Ms. Bott’s sleep apnea polysomnogram test does not establish she suffers from sleep apnea, primarily because she had only minimal changes in her oxygen saturation levels during apnea events.

He was not surprised that the CPAP machine did not provide any relief for her headache symptoms (even though Ms. Bott was compliant in using the device). Further, there was no nexus between a possible diagnosis of sleep apnea and her headaches. In that respect, Dr. Dommann, the neurologist retained by the defendants, agreed and said that any sleep apnea Ms. Bott may suffer from was not caused by MVA 1 or MVA 2 but stated it was possible a sleep apnea syndrome could contribute to her headache symptoms. Dr. David Flaschner [ 57 ] Dr.

David Flaschner is a specialist in physical medicine and rehabilitation with expertise in the assessment, treatment, and management of chronic pain and headaches. His clinical practice (as the medical director of a pain clinic in Calgary, Alberta) includes the assessment and treatment of patients with long-term chronic pain and headaches. [ 58 ] Dr. Flaschner assessed Ms. Bott more recently than Dr. Robinson, on October 20, 2020.

He opined that her condition is unlikely to improve spontaneously and will require intervention to attempt to address symptom management but this would not be curative. [ 59 ] His diagnosis and negative prognosis are summarized in the following sections of his report dated October 20, 2020: The injuries related to the collision of December 17, 2013 are consistent with a cervicothoracic sprain/strain and a post whiplash/posttraumatic headache. … Headache has been a consistent complaint post MVA. .

I agree with the neurologist’s diagnosis of chronic posttraumatic headache, consistent with the International Headache Society classification of a persistent headache attributable to whiplash. Neck pain was not noted to be a substantial concern following the motor vehicle collision with note of an absence of neck pain January 17, 2014, April 4, 2014 and October 24, 2014. Ms. Bott today reported some stiffness or soreness at the neck with headache, described to be neck discomfort that was not disabling. … Ms. Bott was involved in a second minor motor vehicle collision October 17, 2018.

A soft tissue injury post MVA was diagnosed with soreness at the neck. There was note of ongoing headache since the previous collision. The neck was diagnosed to be “pretty good” by November 26, 2018, back to Ms. Bott’s status before the second collision. Ms. Bott today described the collision of 2018 to have been a minor incident with a brief exacerbation of preexisting neck pain and headache, consistent with the provided documentation. Ms. Bott is currently presenting with a chronic posttraumatic headache with migrainous features. Neck pain is commonly associated with migraine. …

The current presentation more likely than not represents a direct consequence of injuries sustained December 17, 2013 likely influenced in part by additional psychosocial stressors. … Ms. Bott is presenting nearly seven years post injury. The likelihood of any further spontaneous improvement is low … [Emphasis added] [ 60 ] He also opined that Ms. Bott’s reports of worsening headache symptoms with physical exertion and with her head held in a dependant position as well as reduced cognition with worsening headache symptoms are consistent with her post-MVA headaches.

The pain and resultant disability she suffers, he explained, “relates to the pain impairment rather than a structural limitation and will be expected to vary depending on the response to treatment recommendations”. [ 61 ] For treatment, Dr. Flaschner provided a list of possible options that he said may improve headache frequency and severity but would not be curative: (

a) six-to-eight-week active rehabilitation program (two to three sessions per week) for postural exercises, core stability, hip flexibility, and cardiovascular fitness, coupled with manual therapies to provide temporary symptom relief to allow Ms. Bott to tolerate her vocational and avocational needs; (

b) revisit Nortriptyline with a low dose trial at night; it “may” improve headache frequency and severity and promote restorative rest; a triptan medication can be used for acute migraine headache-type symptoms; (

c) consider a return to cervicothoracic (not temporal) trigger point injections; (

d) in the event that medications and trigger point injections do not provide any benefit, “a trial of Botox injections would be worthwhile”; it could be used initially “in a cervicothoracic distribution to alleviate some of Ms. Bott’s concern given her negative experience from the temporal trigger point injection”; and (

e) manual therapies during exacerbations of pain for temporary symptom relief. [ 62 ] Regardless of which treatment options are pursued, Ms. Bott will require long-term management. None of the treatment options, including Botox injections, are curative: Ms. Bott was noted to have partially responded to a number of medications and interventions previously. There are further treatment recommendations described below that may improve headache frequency and severity but the interventions are not curative and there is an expectation that Ms.

Bott will require long-term management. [Emphasis added] [ 63 ] As was the case with Dr. Robinson, Dr. Flaschner did not opine that Botox injection therapy that the defendants contend Ms. Bott should take (and since she has not, she has failed to mitigate her loss), would improve symptoms. It is a treatment option that may provide benefit in symptom management: [A] trial of Botox would be worthwhile.

The medication can initially be used in a cervicothoracic distribution… If there is not an adequate response from Botox in a cervicothoracic distribution, then a standard migraine protocol can be used. … The pharmaceutical and medical interventions will be expected to offer temporary symptomatic relief but do not significantly impact the natural history of the pain condition. [Emphasis added] [ 64 ] Dr. Brown expressed the same view of Botox injections in her testimony, stating that it was “worthwhile” for Ms. Bott to consider it. Dr. Steven Dommann [ 65 ] Dr. Steven Dommann, a neurologist, assessed Ms.

Bott on behalf of the defendants and issued two reports dated February 12, 2018 and January 19, 2021 (a reply report). Both are unusually brief and in some respects, cursory. [ 66 ] Dr. Dommann’s departure from Dr. Robinson’s opinions is with prognosis. In his opinion, other treatment options, such as Botox and monoclonal antibody therapy, should be explored before Ms. Bott’s headaches are determined to be permanent, even though he acknowledged that her symptoms have lasted nearly seven-and-a-half years since MVA 1 occurred. [ 67 ] I found Dr.

Dommann’s assessment – particularly his remark that she was “functioning quite adequately at work” – did not take into account (nor mention) that she was reducing her hours at work. He also regarded her comment that “the only thing that has worked (to improve her symptoms) is to not work” (i.e., aka to reduce her work hours) as a light-hearted comment made in a casual manner. He did not mention the remark in the report because, he explained, he thought it was made “off the record”. The parties disagree whether Dr.

Dommann actually acknowledged in cross-examination that he did not include her comment because it was unfavourable to his client. I listened to the tape of his evidence with counsel during closing submissions; unfortunately the volume drops at that part of his answer. However, I do not need to resolve issues surrounding Dr. Dommann’s neutrality and objectivity because I was troubled by his failure to

consider the impact of her reduced hours on her function, in addition to the cursory nature of his reports. For these reasons, I prefer the evidence of Dr. Robinson where their opinions conflict. Dr. Marc Boyle [ 68 ] The defendants tendered the report prepared by Dr. Marc Boyle, an orthopedic surgeon (who recently retired from practice). He examined Ms. Bott on January 22, 2019, and prepared a medical-legal report dated January 23, 2019. His opinion dealt with Ms. Bott’s neck injury and headaches. [ 69 ] For Ms.

Bott’s neck injury, he opined that she sustained a myofascial strain soft tissue injury to her ligaments, tendons, and muscles in her cervical spine, with no evidence that she sustained structural injuries to her vertebrae or discs. [ 70 ] In terms of her prior injuries from the 2012 accident, he wrote that she likely suffered a myofascial strain which is likely to represent a negative prognostic factor, of limited effect, since, he said, “it was more likely than not (greater than 50%), she would undergo full resolution of symptoms attributable to a soft tissue injury.” The defendants do not, however, argue that Ms.

Bott’s prior injuries have any contributory role in the injuries she suffered in MVA 1 and MVA 2. [ 71 ] Dr. Boyle agreed with Dr. Robinson that Ms. Bott should be as active as possible and carry out daily stretching and strengthening exercises. [ 72 ] From a musculoskeletal perspective, he said Ms. Bott will be able to continue in the long term at Kerrisdale Cameras without interruption and continue with her photography business. [ 73 ] Dr. Boyle was unable to provide an opinion concerning Ms. Bott’s headaches, other than “[a]s per Dr.

Robinson’s opinion, these could be cervicogenic in nature”, adding that the contribution of her cervical spine injury to her headaches is outside the scope of his expertise. Jerica Ditson [ 74 ] Jerica Ditson gave expert evidence concerning Ms. Bott’s work capacity and future care based on the assessment she carried out on February 14 and 18, 2020.

The functional/work capacity evaluation occurred over the course of approximately 7.5 hours and included physical and functional testing (sitting, standing, walking, climbing, lifting, carrying, crouching, squatting, bending, stooping, and overhead and forward reaching), as well as an on-site interview and inspection of the work environment at Kerrisdale Cameras’ Langley store on February 14. [ 75 ] Ms. Ditson’s findings are contained in her report dated September 16, 2020. She found Ms. Bott demonstrated significant decline in functional capacity with elevated headache symptoms: Ms.

Bott demonstrated limitations with respect to activities involving increased strain on her head including more moderate to severe degrees of bending and stooping and repetitively changing the positioning of the head for tasks such as repetitive squatting and bending. She also demonstrated limitations balancing when repetitively changing the positioning of her head. Ms. Bott also demonstrated significant declines in her functional capacity that were consistent with reported increases in her headache symptoms over the course of testing. Ms.

Bott was also observed to demonstrate increased postural accommodations and requested additional breaks during the FWCE that were consistent with reported increases in her headache symptoms (i.e. requesting breaks due to headache symptoms, covering her eyes with her hands, closing her eyes and making errors). [Emphasis added] [ 76 ] In Ms. Ditson’s opinion, Ms.

Bott should avoid tasks that require moderate to severe degrees of bending and stooping (due to the forward and down positioning of her head), repetitive changing head positions, repetitive lifting beyond entry level load handling in the medium category, and frequent sustained use of computers. [ 77 ] Ms. Ditson concluded that even though Ms. Bott meets the full functional strength requirements for her work as the Kerrisdale Cameras store manager, she is less competitively employable in her role as a store manager and not likely to endure full-time work on a sustained basis: Overall, test findings reveal that Ms.

Bott is likely less competitively employable as a Camera Store Manager. Due to her physical and functional limitations related to her headache symptoms (i.e. reductions in her speed and productivity over time) she is better suited for part-time work. Due [to] symptom aggravation over the course of the work day and the corresponding functional limitations, it is unlikely that she would be able to consistently sustain full-time work.

Furthermore, with full-time work hours she likely would continue to have significant limitations with her ability to perform her avocational activities outside of work due to symptom aggravation accrued over the work day. As such, shorter work days would facilitate the management of her headache symptoms and would also likely promote increased participation in avocational activities in her home (i.e. child care, household cleaning tasks, leisure activities , etc.). Whether Ms.

Bott was to work full-time or part-time, in order for her to remain functional at work, she requires an accommodating employer that allows provisions to take breaks to help manage her headache symptoms. Based on the information outlined above, her ability to compete against her cohorts for other Camera Store Manager positions has been reduced due to her ongoing functional limitations related to her headaches … [Emphasis added] [ 78 ] Compounding the loss to Ms. Bott is Ms. Ditson’s opinion that Ms. Bott’s overall ability to compete for work in an open job

market is reduced: “Based on the information above, it is my opinion that her overall ability to compete for work in an open job market is reduced due to her ongoing physical and functional limitations related to her headaches [Emphasis added].” Sheryl Thompson [ 79 ] Sheryl Thompson gave expert evidence concerning Ms. Bott’s vocational options based on her assessment, which she conducted on June 8, 2020. Her findings and opinion are contained in her report dated September 14, 2020. She concluded that Ms. Bott has limited vocational options due to her symptoms: 98.

I considered the six top occupations that emerged from the career inventory Ms. Bott completed during my evaluation as possible vocational alternatives : food service manager, restaurant manager, bank teller, cafeteria worker, data entry operator, waiter/waitress, and teacher aide. It is probable she could return to select positions as a waitress, however considering her skills and experience Ms. Bott would be underemployed and experience a substantial loss of income, even with tips. She would also be underemployed and experience a significant loss of income in the occupation of cafeteria worker. … 99.

Online search suggests with her experience and skills, Ms. Bott could be a suitable candidate for select positions as a food service or restaurant manager. This is not a preferable vocational option to her own occupation of store manager in my opinion considering the wage discrepancy, her light and noise sensitivities that would limit the number of suitable employment opportunities available to her, and the uncertain future of the food and beverage industry in light of the pandemic. … 100. Ms.

Bott’s reduced tolerance for computer work suggests the occupations of bank teller and data entry operator are not suitable or sustainable vocational matches . In my opinion, she would also be underemployed in these occupations considering her skills and experience, and she would experience a substantial loss of income, especially as she would initially earn a lower wage as an inexperienced worker in these fields. … 101. It is possible Ms. Bott could work in select roles as a teacher’s aide (education assistant) following completion of the requisite certificate level training.

In my opinion, this is also not a strong vocational alternative to her own occupation of retail store manager considering the restraints that would be placed on job options due to her symptoms, and the wage discrepancy. … 102. Ms. Bott’s reduced tolerance for computer work implies she would not be suited to supporting students in an online learning environment , which depending on the school/school district could be required for the foreseeable future.

The accommodations of taking breaks when needed, leaving work early and/or reducing her work hours when needed would be difficult to introduce, as this would have a direct impact on student learning. In my experience, reliable work attendance is fundamental to ensure the consistency and stability necessary to support special needs learners. Ms. Bott would experience a notable loss of income in this occupation. … [Emphasis added] [ 80 ] Other potential vocational options do not pay the same income Ms. Bott is currently earning with Kerrisdale Cameras. Examples Ms.

Thompson cited include bank teller ($14.60 per hour to $20.00 per hour), educational assistant ($18.70 to $25.00 per hour), and food services manager (median hourly wage of $24.48). Other potential options would require retraining that would temporarily take Ms. Bott out of the earning work force. [ 81 ] Ms. Bott’s best option, she opined, is to remain in her current position with Kerrisdale Cameras so long as she can be accommodated, though Ms. Thompson is not confident Ms. Bott will be able to return to working full-time hours: 103. In my opinion, Ms.

Bott's ability to continue working for Kerrisdale Cameras post-injury as a salesperson, shift supervisor and now store manager can be attributable to a combination of the ongoing support of her employer and co-workers/staff, the accommodations she has been able to introduce on the job to manage her symptoms (i.e., taking additional breaks, leaving work early and reducing her hours when possible), modifications to the work environment (i.e., changing overhead lights throughout the store), and the protracted breaks in employment during medical and maternity leaves.

I am guarded absent these accommodations/modifications, support and time off work she could have sustained the hours she has worked since the accidents or maintained a management role within the company. 104. I am guarded full-time hours (i.e., 40 hours per week) is a reasonable expectation for Ms. Bott post-injury. Since the December 2013 accident, it has been medically suggested she take time off work and reduce her hours for symptom management (Brown, 2015, 2017, 2018; Kurniawan, 2015). She has reportedly implemented this when possible. As Ms.

Bott is remunerated on an hourly basis and a portion of her earnings are based on commissions from sales she completes, the need to reduce her hours for symptom management would have a direct impact on her earnings and earning capacity. … … 118. In my opinion, Ms. Bott’s best vocational option is to continue working as a store manager for Kerrisdale Cameras for as long as she is capable and this aligns with her vocational goals.

Her employer remains supportive and understanding of the impact of her injuries from the subject accidents on her attendance and on the job functioning, she has the flexibility to take additional breaks and leave work early when needed for symptom management, she can adjust her work

schedule as needed (depending on staff and seasonal demands), and her work environment has been modified to minimize her symptoms. Ms. Bott does remain at some risk of demotion if her reduced work hours impede her ability to meet job demands and employer expectations for a store manager, and she could be passed over for promotions within the company for this same reason. [Emphasis added] [ 82 ] She holds the same opinion regarding Ms. Bott’s capacity to work as a photographer:

[108] The occupation of photographer, even on a very part-time basis, would remain beyond Ms. Bott's residual vocational capacityabsent substantial and sustained improvements in her symptoms, namely her tolerance for computer work and transitioning betweenlower and higher levels. Although it was reportedly not her intention to pursue this business beyond part-time assignments, the loss of herability to perform this work has impaired her overall earning capacity. … [Emphasis added] Sleep Apnea and Vitamins [83] The defendants acknowledged in closing submissions that Ms.

Bott’s possible sleep apnea and failure to take vitaminsupplements have no nexus to the injuries she sustained in MVA 1 and MVA 2. They do not assert that her decision not to continue to usethe CPAP machine or to take vitamin supplements suggested by her family doctor constitutes a failure to mitigate her loss. That isbecause there is no basis in the evidence to establish that either would have improved or resolved any of her injuries or symptoms. [84] The defendants contend that the evidence of Dr. Mandeep Mann and Dr.

Mehdi Keshmiri concerning their treatment of Ms.Bott’s potential sleep apnea and the family doctor’s evidence regarding vitamin supplements supports a propensity argument relevant totheir failure to mitigate defence. According to the defendants, Ms. Bott is predisposed to not follow treatment recommendations. [85] I disagree. There is no basis in the evidence to support a propensity argument nor to suggest that Ms. Bott’s experience with theCPAP machine and concerns over taking vitamin supplements demonstrates any inclination or predisposition to reject treatment advice. [86] Ms.

Bott tried the CPAP machine as recommended and found no benefit to her headaches or sleep issues. As a result, and afterhaving consulted two specialists, her family doctor did not suggest, let alone recommend, that she carry on using the machine or return torespirologists or other medical specialists in that field for further investigation or consultations. [87] The defendants’ submission also overlooks Dr. Robinson’s opinion, which I accept, is that he was not surprised that the CPAPmachine provided no benefit to Ms.

Bott or that she stopped using it. [88] The defendants’ submission concerning vitamins is also without merit. Ms. Bott discussed potential side effects with her doctorand learned that one ingredient in the supplement (magnesium) could cause diarrhoea. Ms. Bott’s concern for that issue, and in particularthe additional problems it could pose for her while at work, all in the context of her ongoing headaches, was reasonable. Further, thedefendants have not established that taking vitamin supplements was a recommendation made by Ms.

Bott’s family doctor that wasrejected. [89] With the exception of Botox, which I discuss in more detail in the next section, I am satisfied that Ms. Bott has actively compliedwith all treatment recommendations made by her doctors. Ms. Bott has attempted numerous forms of treatment to combat her symptoms,including various trials of medication, physical therapies, trigger point injections, craniosacral therapy, and sleep apnea treatments. Shehas attended at multiple respirologists and neurologists.

She has made adjustments in her work environment with the assistance of Ms.Hudson and has consistently shown effort in her attempt to return to work. Ms. Bott has not ruled out Botox, but has quite properly, andreasonably, raised her concerns about the negative effects outweighing any potential benefits with her family doctor. The defendants didnot adduce any evidence from Dr. Brown that she found her patient to be resistant to or non-complaint with treatment recommendations. [90] Consequently, issues surrounding sleep apnea and vitamin supplements have no relevance to my assessment of damages.

Botox: Failure to Mitigate Defence [91] The defendants contend that Ms. Bott has failed to mitigate her loss by not taking Botox injections. The defendants argue that Ms.Bott has not acted reasonably in choosing not to try Botox injections to treat her headaches and to reduce her hours at work instead. [92] The defendants submit the reduction should be 50%. [93] The defendants point to LaRocque v. LaRocque, 2019 BCSC 655, where the plaintiff’s award for non-pecuniary damages wasreduced by 20% for failing to mitigate in light of evidence establishing that Botox injections would be beneficial to her: at para. 89.

Theyalso cite Mullens v. Toor, 2016 BCSC 1645, aff’d 2017 BCCA 384, where the plaintiff’s non-pecuniary and future loss of capacitydamages were reduced by 50% for a failure to mitigate when the plaintiff did not attempt to return to work and consistently resistedtreatment for her psychological condition. [94] However, the behaviour of the plaintiffs in both cases cited by the defendants is considerably different from Ms. Bott’sbehaviour.

In LaRocque the 20% reduction to non-pecuniary damages was not based merely on the plaintiff’s failure to attempt Botoxtreatment; she also failed to participate in an active rehabilitation program and continued to self-medicate with marijuana contrary tomedical advice. The plaintiff in LaRocque also expressly agreed Botox would be beneficial to her. In Mullens the reduction was largelybased on the plaintiff’s complete resistance to even an attempt to return to work, contrary to medical advice that not only was it notcontra-indicated, but in fact it would help her mood disorder.

She also failed to consistently take anti-depression medication and did notsee a treating psychiatrist despite multiple recommendations to do so. [95] To succeed, the defendants must establish both prongs of a two-part test. First, they must establish that Ms. Bott actedunreasonably in not taking Botox injections. If they do, then they must establish the extent to which her loss would have been reducedhad she done so: Chiu v. Chiu, 2002 BCCA 618 at paras. 57, 65-66; Janiak v. Ippolito, (SCC), [1985] 1 S.C.R. 146 at151,163, 169-172, 16 D.L.R. (4th) 1; Gregory v.

Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56. [96] In Hauk v. Shatzko, 2020 BCSC 344 at paras. 201-202, 206, Justice Marchand (as he then was) said that mitigation is not to be

judged retrospectively nor to a standard of perfection, but based on the plaintiff’s history, the information available to her, the input from her family doctor, and the recommendations of other treating professionals. [ 97 ] Typically, the failure to mitigate defence is dealt with after the awards for each head of damage are assessed.

If the defence is successful, the awards are reduced to correspond with findings regarding the effect of a plaintiff’s failure to mitigate. [ 98 ] In this case, however, it is more appropriate to determine the defence at this juncture because if successful, the impact extends beyond a percentage reduction of specific heads of damages. For example, it impacts the defendants’ submission that Ms.

Bott did not have to reduce her hours at work at all because she should have pursued Botox treatments instead. [ 99 ] For the reasons set out below, I have determined that the defendants have not established the second prong of the test, such that the defence fails. [ 100 ] The defendants’ position assumes Ms. Bott has decided against Botox treatment, which is not the case. Ms.

Bott remains apprehensive about undergoing multiple Botox injections to her temporal (head) region in view of her adverse reaction to trigger point injections to her temples and to several headache medications prescribed to her over the years, but she has not decided against it. She has put off making a decision while she tried other treatment options and reducing her hours at work. Thus, in considering the first prong of the test, is there a point in time where the defendants have established that Ms.

Bott has been acting unreasonably in failing to try Botox treatments? [ 101 ] Botox injections have been suggested as a possible beneficial treatment to reduce (not resolve) headache symptoms by Dr. Brown, Dr. Robinson, Dr. Dommann, and Dr. Flaschner. Dr. Robinson testified that Botox injections are a reasonable consideration for Ms. Bott and although not curative, may result in symptom improvement. [ 102 ] Dr. Robinson recommended Botox treatment when he met with Ms. Bott in November 2017. Since she was still getting some relief from osteopathy (craniosacral therapy) at that time, Dr.

Brown decided to reconsider Botox injections if craniosacral therapy did not improve symptoms. When Ms. Bott later reported to Dr. Brown on February 2, 2018 that her headaches had worsened again, she referred Ms. Bott to a neurologist to consider Botox injection treatment. The referral was made on March 4, 2018 but Ms. Bott did not follow up to make the appointment with the specialist. She chose instead to reduce her hours at work, an option that Dr. Brown continued to recommend to Ms. Bott throughout independently from Botox injections. [ 103 ] Ms.

Bott’s concerns over adverse side effects from the drug that would be injected should have been allayed by Dr. Robinson’s advice in his report and the advice of the other doctors who have suggested Botox as a treatment option. [ 104 ] I do agree with Ms. Bott’s submission that her concerns for an adverse reaction similar to the one she had with the temporal trigger point injections were reasonable and warranted further investigation. However, Dr.

Flaschner has addressed this concern in his October 20, 2020 report by suggesting the Botox can be injected through cervicothoracic distribution as opposed to temporal injections: The medication can initially be used in a cervicothoracic distribution to alleviate some of Ms. Bott’s concern given her negative experience from the temporal trigger point injection. … [ 105 ] In these circumstances, I find Ms. Bott’s failure to follow up on the referral and explore the viability of Botox treatments (especially cervicothoracic injections suggested by Dr.

Flaschner) in the face of her ongoing and at times, worsening, headaches was unreasonable. In light of this more recent medical advice from Dr. Flaschner, I conclude that Ms. Bott’s delay in trying Botox treatment is now unreasonable. [ 106 ] I must now consider the extent, if any, to which Ms. Bott’s loss would be reduced had she acted reasonably: Chiu at para. 57 .

In Chiu , Justice Low overturned the decision of the trial judge accepting the failure to mitigate defence on the basis that there was no medical opinion in the evidence that pursuing the recommended treatment (more counselling) would have speeded up the respondent’s limited recovery.

As a result, Low J.A. said the appellant did not present the necessary evidence to raise the defence “from speculation to reasonable inference”: Chiu at paras. 65-66 . [ 107 ] The same approach was taken by the Court of Appeal in Gregory : 56. …The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced ” by that treatment.

The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “ there is some likelihood that he or she would have received substantial benefit from it …” [Emphasis added] [ 108 ] The problem identified by Low J.A. in Chiu is present in the case at bar. Unlike Liu v. Bipinchandra , 2016 BCSC 283 , the evidence does not provide a basis on which to make any other finding. In Liu , the evidence established that two-thirds of persons who have the form of headache pain suffered by Ms.

Liu benefitted from Botox treatments and thus, as a matter of inference, she would benefit from them as well: at paras. 101-104. The findings were similar in LaRocque in that the medical evidence showed Botox treatments “would be beneficial”: at para. 89. [ 109 ] The evidence in the case at bar does not establish either directly or by inference that Botox injections would or are likely to improve Ms. Bott’s symptoms and mitigate her loss. The medical evidence recommends Botox as a treatment worthwhile to try or a reasonable consideration, with no long-term studies to establish rates of success. [ 110 ] Dr.

Robinson also said in his testimony that while clinical experience with Botox has been positive for patients suffering from migraines (upward of 70% have had a meaningful response), there is no data concerning post-traumatic headaches, and added that it is not possible to predict in advance whether a patient will benefit from Botox. He could say, from his clinical experience, whether more people suffering from cervicogenic headaches than not respond favourably to Botox treatment (his “guess” [his word] based on his

clinical experience is more than half have a “meaningful response”): Q Are you able to tell by assessing a patient whether Botox will work without giving it a try? A No. There have been attempts to predict who would respond and who would not. Nothing has really demonstrated a clearindicator based on headache characteristics, other symptoms, demographics.

And so the only way I know of, that you can find out ifBotox is effective for the headache disorder, is to have a trial. … Q In terms of – perhaps this is difficult to say, but in terms of the accuracy, is there a range of outcomes for those who doexperience improvement? A Well, yes. I mean, the range is from no improvement to complete abolition of the headache disorder. I can quote statistics formigraine.

And my experience in post-traumatic headache is admittedly anecdotal; however, I have seen so many patients who havepersistent post-traumatic headache who have tried all manner of treatments without success who respond to Botox in a meaningfulfashion. And my impression is that more people respond than not, which is a way of saying I guess more than half, I believe, do get ameaningful response. It is not curative; it's a completely reversible neurotoxin in all ways.

And so even a robust, dramatic response willonly last for the duration of action of the neurotoxin, which is around 12 weeks, then there will be a slow wear-off back to baseline unlessthe treatment is repeated. Q And typically patients who are experiencing benefit then must continue the Botox. I'm guessing there isn't an end date. Is that fairto say? A No, there is no end date. It's based on the natural history of the headache disorder. … If the headache disorder is going to bepresent indefinitely, the prediction would be that should the Botox be effective, that that treatment would be necessary indefinitely.

Andthe – the longest treated patient I have in my Botox practice has now had in excess of 75 treatments and – and her diagnosis was post-traumatic headache. And if she doesn't have it, it does wear off. … [Emphasis added] [111] I am not suggesting that the burden of proof is higher than the standard burden of proof for hypothetical events, as there is clearlyno way for the defendants to prove how Ms. Bott would have reacted (or, indeed, will react) to the Botox treatments with certainty: Liuat para. 103; Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at para. 27.

However, the evidence in this case does not riseto the level of proof in the way it did in Liu and is insufficient in this case to provide the inference necessary to prove the second prong ofthe test. In addition, the evidence of Dr. Flaschner and Dr. Dommann speak to the possibility that there are other potential options toconsider should Botox not provide any benefit, raising additional uncertainty of the likelihood of success. [112] A finding that Botox treatments might reduce Ms. Bott’s symptoms is insufficient to establish the second part of the test. SeeWong v.

Au, 2021 BCSC 58, where Justice Baker said: [51] I find that the defendants have established that continuing medication might have reduced the effects of Mr. Wong’spsychological injuries, but the defendants have not established that Mr. Wong would have eliminated his psychological disorders if hehad continued taking medication. A finding that undergoing a treatment might have reduced symptoms is not sufficient to meet the test inAntoniali [v.

Massey, 2008 BCSC 1085]. [Emphasis in original] [113] In Gregory, the Court of Appeal used the words “would have been reduced” (at para. 56, citing Chiu) when discussing the proofrequired to establish the second prong of the test. In overturning the trial judge’s reduction for a failure to mitigate, the Court of Appeal,pointed out that the trial judge had used a different articulation of the test from Turner v.

Coblenz, 2008 BCSC 1801, i.e., that thedefence must establish the plaintiff “would have received substantial benefit from it.” The Court of Appeal reiterated that the correct testis that articulated in Chiu and evidence that a treatment was “a reasonable treatment to try” which “might afford some relief” isinsufficient to meet the Chiu threshold: at para. 58. [114] See also: Jackson v. Davis, 2021 BCSC 380 at para. 73 (“would have been reduced”); Kellett v.

Stam, 2018 BCSC 1127 at paras.122–123 (“will have received substantial benefit which would have reduced her damages”); Mullens at para. 109 (“would have benefittedher mood disorder”). [115] Further, even where a finding has been made that Botox would be successful in treating symptoms, courts have been reluctant toaward the cost of the treatments for the lifetime of the plaintiff in light of the speculative nature of its success: Wright v. Dillon, 2009BCSC 176; Lu v.

Huang, 2016 BCSC 1146. [116] In conclusion, the defendants have failed to prove the second prong of the test, and as a consequence the failure to mitigatedefence. [117] That said, I agree with Ms. Bott’s submission that the possibility of symptom improvement from Botox injections should beconsidered as a contingency in assessing her damages (as I will other contingencies, such as the possibility raised by Dr. Robinson thather symptoms may improve or resolve as she grows older). [118] Additionally, in the face of Dr. Robinson’s advice that Ms.

Bott would require Botox injections every three months for much ofthe remainder of her lifetime should the Botox injections provide a substantive response, the defendants argue the future care award

should only allow for a fraction of those costs, and at the lowest end, in view of what it says is Ms. Bott’s decision not to take Botox treatments. I agree with Ms. Bott’s submission that the defendants cannot logically assert that Ms.

Bott should undergo Botox treatments because they would reduce her symptoms and enhance her quality of life and vocational and avocational pursuits (thereby, for example, minimizing her loss of future earning capacity), and at the same time argue that only a fraction of the cost of these treatments should be paid going forward. [ 119 ] If the defendants’ failure to mitigate defence had prevailed, an increase in some of Ms. Bott’s other heads of damages would be warranted.

In addition to a significantly increased award for cost of future care due to years of ongoing costs of Botox treatments (currently, $400 to $850 per treatment every three months), an increased award for non-pecuniary damages would also be warranted since Ms. Bott would have to endure Botox injections every three months likely indefinitely (the typical course of which Dr. Robinson described as involving 31 injections to the head and neck area, something she has already expressed anxiety about due to her adverse reaction to the previous trigger point injections).

She also would require time away from work every three months to take those injections, which would in turn increase her loss of future earning capacity. And lastly, in spite of any assistance the injections may provide to reduce symptoms, I am satisfied that Ms. Bott would nonetheless continue to suffer from headaches for the remainder of her life. Non-Pecuniary Damages [ 120 ] In Stapley v.

Hejslet , 2006 BCCA 34 , the Court of Appeal set out a non-exhaustive list of common factors which influence an award of non-pecuniary damages: [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 ). [ 121 ] The award must be fair and reasonable to both parties. While each case must be decided on its own facts, prior cases can be used to guide an assessment for non-pecuniary damages: Trites v.

Penner, 2010 BCSC 882 at paras 188-189 . [ 122 ] The cases cited by the parties in their written submissions provide useful guidance of an appropriate range for the award under this head of damage (the awards in the older cases need to be viewed in light of inflation). [ 123 ] Ms. Bott referred to five authorities with the following synopsis, which I have extracted from her written submissions in support of her submission that $125,000 is an appropriate award for this head of damage (comments in square brackets are mine): 106. In Wheeler v.

Wilson, 2021 BCSC 441 , the plaintiff, born May 19, 1987, [the same year as Ms. Bott] was involved in two rear- end collisions. She suffered injuries to her neck and shoulders, and had ongoing headaches, anxiety and sleep disruption. She was an active individual prior to the collisions, despite a significant pre-accident history of other medical conditions. She was receiving ongoing Botox treatments and trigger point injections, both of which she found beneficial. She found that her symptoms were periodically disabling, but improved as a result of those treatments [and various lifestyle modifications.

In terms of prognosis, she would not see full resolution of her symptoms but could still see improvement.] She was awarded $100,000 in non-pecuniary damages. 107. In D’Arcy v. Salimi , 2021 BCSC 551 , the plaintiff [who was approximately 28 years old at the time of the accident] suffered from chronic pain resulting in psychiatric difficulties that negatively affected her happy and active social life. She had been diagnosed with posttraumatic headaches and neck pain; she had cognitive complaints likely attributable at least in part to her chronic pain.

While she still enjoyed some social activities, she had reduced or stopped others. [She and her husband were no longer certain of their plans to have children due to her symptoms.] She was awarded $125,000 in non-pecuniary damages. 108. In Gill v. Lai, 2018 BCSC 101 (var’d on other issues: 2019 BCCA 103 ), Ms. Gill was 29 at the time of the first accident. She was subsequently involved in a second accident that exacerbated her injuries. Ms. Gill was not noted to be particularly active. She was a good student and had established a career as a pharmacist. At the time of the accident she was on maternity leave.

She was diagnosed with chronic myofascial pain of the neck, shoulder and upper back. Non-pecuniary damages were assessed at $140,000 [approximately $148,000 with inflation].

109. In Mattson v. Spady, 2019 BCSC 1144, the plaintiff was 30 years old at the time of the collision. She balanced a demandingprofessional career as a kinesiologist and was very active prior to the collision. She sustained ongoing headaches and neck and shoulderpain as a result of the collision. She had a baby after the collision and her pain limited her interaction with her children.

JusticeWinteringham found that the prognosis for full recovery was guarded, although further treatment may provide improvement, and that theplaintiff had reduced participation in extracurricular activities and home responsibilities, and “importantly, her ability to care for herinfant children has been impacted” (para. 151). She awarded the plaintiff $150,000 for non-pecuniary damages [approximately $155,000with inflation]. [124] The defendants cited cases in support of their submission that the range is between $85,000 and $100,000, likely towards thehigher end of this range.

I have extracted their description of the case authorities below: 119. In Snidal v. Spires, 2015 BCSC 446, the plaintiff was a 20-year-old lifeguard who suffered chronic neck, back, and shoulderpains with migrainous headaches that “take her out”. The injuries were likely to be a permanent feature of the plaintiff’s life. Hersymptoms had likely plateaued and were likely to be a permanent and regular feature in her daily existence, [but were described as“generally stable” and manageable for the most part]. The court awarded $85,000 for non-pecuniary damages [approximately $95,000with inflation]. 120. In Hu v.

Tan, 2016 BCSC 908, the plaintiff was a 38-year-old administrative coordinator who suffered soft tissue injuries to herneck, shoulder, upper back and lower back. She also suffered from ongoing debilitating migraine and tension headaches and ongoingchronic pain. The court awarded $90,000 in general damages [approximately $98,500 with inflation]. 121. In Grimm v. Young, 2019 BCSC 1549, the plaintiff was a 37-year-old yoga and fitness instructor who was 10-weeks pregnantwith her first child at the time of the motor vehicle accident.

As a result of the accident, she suffered from headaches lasting six to eighthours, four to six times per week as well as ongoing pain in her neck, back, and shoulders. At trial, her condition had plateaued. Thecourt awarded $90,000 for non-pecuniary damages [approximately $93,000 with inflation]. 122. In Odian v. Carriere, 2016 BCSC 112, the plaintiff was a 46-year-old homebuilder who six years on from a motor vehicleaccident continued to suffer from headaches and neck pain. She also sustained soft tissue injuries to her back, hip, knee, ankle, andshoulder, which resolved within the first year.

Her headache symptoms were unlikely to improve. The court awarded $100,000 in non-pecuniary damages [approximately $109,500 with inflation], which also included recognition of a loss of the plaintiff’s secondarybusiness due to her injuries. [125] In Stapley, Madam Justice Kirkpatrick cautioned against engaging solely in a comparative analysis of the injuries suffered byplaintiffs in prior decisions to those suffered by the plaintiff in the case at bar when assessing an appropriate award. The award must takeinto account the specific circumstances of the individual: at paras. 44-45.

Those comments are echoed throughout the case authorities. Ihave considered the cases cited by the parties for guidance with those cautions in mind. I have also taken into account in assessing thishead of damage the general effect on a person’s ability to tolerate chronic pain and discomfort as they age. In Davidge v. Fairholm, 2014BCSC 1948, Justice Griffin, as she then was, said at para. 166(e): “[A]s a matter of ordinary human experience and common sense, aperson’s ability to tolerate chronic pain diminishes with age.” See also: O’Brien v.

Cernovec, 2016 BCSC 1881 at para. 140. [126] After considering the awards in those cases, together with Ms. Bott’s age, the nature, frequency, and severity of her headachesymptoms, the effect of medical advice that the likelihood of further spontaneous improvement is low, the current and likely ongoingeffect of her symptoms on all aspects of her life (e.g., family life, marriage, avocational and vocational pursuits), and the length of timeshe will endure her headaches even if there is symptom improvement in her 50s (as Dr.

Robinson postulates as a possibility due tomenopause or with additional treatment options, or both), I assess an appropriate award for this head of damage to be $125,000. Loss of Housekeeping Capacity [127] Ms. Bott seeks an award for loss o

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