IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100315

Docket:
M064870

Registry: Vancouver

Between:

Hieu Pham-Fraser

Plaintiff

And

Dean
Gregory Smith and
Sheryl Anne Tanco

Defendants

Before: The Honourable Mr. Justice Greyell

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff was injured in a motor vehicle
accident which occurred January 13, 2006, and claims damages.  The
defendants admit liability but take issue with the nature and extent of the plaintiff’s
injuries and the amount of damages she should be awarded for those injuries. 
The defendants say any damage award must be discounted as a result of several
pre-existing medical conditions affecting the plaintiff.

THE ACCIDENT

[2]            
The accident occurred as the plaintiff was
driving to work at Garden City School in Richmond.  As she was passing through
the intersection of #2 Road and Garrison Road on a green light, a vehicle
driven by Ms.Tanco entered the intersection against a red light.  Her vehicle
struck the defendants’ vehicle while travelling between 40 and 50 km/hr.  The
collision occurred with virtually no warning to the plaintiff.  The impact was
forceful, deploying both front airbags of her vehicle.  The driver’s side airbag
hit the plaintiff in the face and chest and forced her backwards.  She was
wearing a shoulder/lap type seat belt.  The plaintiff was able to get out of
her car unassisted.  She checked on the safety of Ms. Tanco and had a brief
conversation with her.  The plaintiff does not recall much of what happened or
the accident scene.  Both vehicles were towed from the scene and were total
losses.  The plaintiff was taken to Richmond General Hospital by ambulance where
she was examined and released.  She remained home for the next two weeks recovering
and then returned to her work as an elementary school teacher.  She took
sporadic half days off work during the balance of the school year as she found
necessary to deal with her injuries.

THE PLAINTIFF

[3]            
At the time of the accident the plaintiff was a 32-year-old
married mother of an 8-year-old son, Ethan.

[4]            
The plaintiff was born in Vietnam during wartime. 
Her family immigrated to Canada when she was young and settled in Duncan, British
Columbia, where the plaintiff was raised.  She completed high school and
attended Malaspina College on a university transfer program.  She graduated
from the University of Victoria with a degree in education in 1996.

[5]            
She met her husband Paul at university.  When
she graduated they moved to Richmond where she has worked full time since 1996
as an elementary school teacher, except for a year taken on maternity leave
following Ethan’s birth.  She enjoys her position as an elementary school
teacher and, as will be discussed, has plans to advance her career.

[6]            
The plaintiff has always maintained an active
lifestyle.  Prior to the accident she worked at keeping herself fit and
active.  She enjoyed many sports including skiing, snowboarding, hiking,
camping and participated in yoga and advanced kick boxing programs.  She and
her husband had a full social life with friends.  Many of their activities,
such as skiing, snowboarding, and hiking for long distances came to an abrupt
stop as a result of the accident.

The
Plaintiff’s Injuries

[7]            
The plaintiff suffered a number of injuries
which were caused or aggravated by the accident.  These injuries included soft
tissue injuries to her neck, back and lumbar spine area, aggravation of a temporomandibular
(TMJ) dysfunctional problem, aggravation of a pre-existing carpal tunnel
syndrome, mild traumatic brain injury, headaches, vertigo and psychological
injuries, including depression, post traumatic stress disorder and anxiety.  The
plaintiff further said she suffers from continuous ongoing lower back pain with
pain and numbness into her leg and foot from stenosis or narrowing of her
spinal canal, likely the result of a burst fracture at her L5 vertebrae level
caused by the accident.

[8]            
At the time of trial the plaintiff testified she
still has headaches two to three times a week with fatigue and tiredness developing
during the school day.  The headaches are usually accompanied by pain in her
jaw which she said happens because she talks to her students for most of the
day.  She has had two experiences of “lockjaw” in the past two years.  The
plaintiff had prior experiences with TMJ but was asymptomatic at the time of
the accident.

[9]            
The plaintiff’s neck, upper back and shoulder
pain have improved but she said she still has occasional neck pain.  Her right
arm remained painful until earlier in 2009 before she had carpal tunnel surgery
to correct the problem.  Her left arm remains painful and she is considering similar
corrective surgery.  She had pre-existing carpal tunnel syndrome but, again, was
asymptomatic at the time of the accident.

[10]        
The plaintiff’s most notable problem is “pretty
constant” lower back pain which comes on daily while she is working.  She
described the pain as radiating into her buttocks and right leg with numbness
into her toes.  The pain comes on with too much standing, sitting or bending
over to assist students and she finds she has to change her activities to
relieve the discomfort.  In addition, she suffers from loss of bladder control
and the involuntarily passing of urine, which she said occurred about 40% of
the time she has to urinate.  The plaintiff denied any pre-existing back pain
except in the third trimester of her pregnancy with Ethan.  She said her back
symptoms have reached a plateau and do not appear to be getting worse.  She receives
massage therapy once per week and her husband gives her nightly back and leg
massages which relieve the pain although she said she still wakes up during the
night with numbness in her right leg.

[11]        
By the time of the trial the plaintiff had
resumed an exercise regime, although not as rigorous as pre-accident.  She was
participating in hot yoga and a kickboxing workout program and cycling and hiking
for short distances.

[12]        
The defendants say the plaintiff’s injuries were
not of the duration she claims they were, and that her TMJ, carpal tunnel and
lower back pain were the result of pre-existing medical conditions.  The
defendants take issue with whether the plaintiff sustained a fracture of her L5
vertebra as a result of the accident.  The defendants say that the L5 vertebra was
not fractured but that even if there is a finding it was fractured, such
fracture could easily have occurred prior to the accident as a result of the
plaintiff’s active lifestyle.

The
Plaintiff’s Medical Evidence

[13]        
The plaintiff called a number of physicians to
testify to the nature of her injuries.  I will summarize their evidence below.

[14]        
Dr. Donna Yee is Ms. Pham-Fraser’s family physician. 
Dr. Yee provided several medical reports outlining the plaintiff’s progress,
and testified at trial.

[15]        
The plaintiff attended Dr. Yee’s office on January
16, 2006, three days after the accident.  She had spent those three initial days
in bed in considerable pain.  She saw a locum who noted “pain and clicking of
the right jaw and soreness all over since the accident”.

[16]        
Several days later she saw Dr. Yee who set out
her findings in a medical report dated January 27, 2006.  She concluded the
plaintiff sustained soft tissue injuries to her neck, shoulders, back and
anterior chest as well as exacerbations of prior right TMJ dysfunction and
bilateral carpal tunnel syndrome.  She also sustained headaches and muscle
spasm due to the soft tissue injuries to her neck, as well as vertigo and post-traumatic
stress disorder.  Dr. Yee noted the plaintiff also had a past history of
vertigo and TMJ but that she was not experiencing difficulties with either at
the time of the accident.

[17]        
Dr. Yee noted that on examination the plaintiff
the plaintiff’s range of motion in her LS-spine “was full with pain during
anterior flexion”.

[18]        
Dr. Yee continued to follow the plaintiff up to
trial.  In her report of August 15, 2009, she provided an update on the
plaintiff’s condition.  She reported that the plaintiff told her she “was doing
well overall”; the headaches and dizziness had resolved; neck and shoulder pain
was now neck and shoulder stiffness at the end of her work day; she had undergone
left carpal tunnel surgery and was no longer experiencing numbness or weakness
although she was experiencing right hand weakness which was gradually
improving; she continued to experience TMJ symptoms with jaw pain and clicking,
usually coming on with her neck and shoulder stiffness at the end of the work
day.  The plaintiff reported to Dr. Yee that her post-traumatic stress disorder
was resolved and that she had good mood and concentration.  The main continuing
problem was lower back pain which came on in the evening, lasted hours and
radiated down her right leg to her toe.

[19]        
Dr. Yee concluded:

I believe Ms.
Pham-Fraser’s soft tissue injury of the neck and shoulders have significantly
improved.  I believe the patient’s soft tissue injury of the low back with
right sided sciatica symptoms has also significantly improved and have been
stable for the past year.  I believe her soft tissue injury of the neck will
continue to improve over time.  I hope that Ms. Pham-Fraser’s soft tissue
injury of the low back with spinal stenosis symptoms will improve over time. 
However, these may remain stable or even worsen over the long term depending on
her activity / inactivity.

[20]        
Dr. Robin Rickards is an orthopaedic surgeon who
has been in practice for 22 years.  He saw the plaintiff July 8, 2009, provided
a medical report dated the same date and testified at trial.  Dr. Rickards
opined the plaintiff had significant neurological symptoms relating to the
right lower extremities, suggestive of compression of nerve roots leading to
bladder incontinence.  His diagnosis was that she had probable lumbar spinal
stenosis and instability in her right and left temporomandibular joints.

[21]        
Dr. Rickards was of the opinion the cause of the
plaintiff’s lumbar spinal stenosis was traumatic, “likely” a burst fracture to
her L5 as a result of the flexion, extension and twist forces of
acceleration/deceleration during the accident as she was thrown forward and
backward.  He also testified the stenosis was possibly compromised by further
narrowing of her spinal canal by the extrusion of bone or disc and possibly by
the development of early post-traumatic degenerative change.  He was of the
view that without surgical intervention the plaintiff’s symptoms would gradually
increase, with an inability to bear weight:  likely within the next five to ten
years.

[22]        
Dr. Rickards testified surgery should not be
undertaken until a further MRI scan was done to evaluate the kind of surgery
required.  In his view, surgery to relieve the pressure on the nerve roots to
improve bladder control and to remove the numbness and weakness in her lower extremities
would result in an 80% improvement.  He testified there were risks in delaying
such surgery.

[23]        
Dr. William Yee, a staff radiologist at
Vancouver General Hospital, provided an expert opinion report and testified. 
He reviewed a CT scan of the plaintiff’s lumbar spine from the L3-S1 level
which was done July 25, 2007.  He concluded she had sustained what he
described as a “burst” fracture at the posterior inferior corner of the L5
vertebral body resulting in spinal stenosis or narrowing of the spinal canal
which he graded as moderately severe.  He testified the fracture was the result
of a traumatic event.  The best he could do at dating the fracture was that it
had occurred more than two months before the CT scan was done.  He stated in
his report that this condition can cause weakness or loss of sensation in the extremities
and sometimes problems with bowel and bladder function.  In cross-examination
Dr. Yee agreed burst fractures of the L5 vertebra were very rare.

[24]        
Dr. Brian Hunt, a neurological surgeon, saw the
plaintiff July 6, 2009, at the request of her counsel and testified at trial. 
He noted her complaints of continuing daily low back pain, worse towards the
end of the day when it became continuous, and radiating into her right leg
resulting in tingling and numbness in her right foot and toes.  She was
experiencing pain and numbness when walking for any length of time.  The
plaintiff acknowledged to Dr. Hunt she had experienced back pain prior to the
accident dating back to as early as 2000.  She noted to him that immediately
after the accident she did have low back pain but that it began to intensify
about one year later and began radiating down her leg at that time.  Dr. Hunt
reviewed the clinical records pertaining to the plaintiff and the medical legal
reports of Drs. Longridge, Nasedkin, Donna Yee, Hartzell, O’Shaughnessy,
Ganesan, Gropper, and William Yee, all of which had been provided to plaintiff’s
counsel.  He concluded she had significant pre-existing degenerative changes of
both her cervical and lumbar spine at the time of the accident.  He was of the
opinion the accident created sufficient deceleration forces to produce damage
to her L5 vertebra through abnormal axial-loading but stated “a biomechanical
engineer will need to confirm this probability”.

[25]        
Dr. Hunt also was of the view the plaintiff
would “possibly at some time in the future” require surgical decompression of
the lumbar spine in any event but it was “probable” this would not be required
until she was 50-60 years of age, given her athletic and active lifestyle.

[26]        
Counsel for the plaintiff sought to lead
evidence from Dr. Hunt at trial that the age at which she may require surgery
in any event of the accident would more likely be 60-70 years of age.  I have
decided against admitting this portion of Dr. Hunt’s opinion.  Dr. Hunt’s
revised opinion was based on his review of the opinions of other physicians
called by the plaintiff.  No source was provided to the defendants’ counsel and
the evidence was sought to be introduced on the third day of the trial
following the cross-examination of Dr. Donna Yee and Dr. William Yee.

[27]        
Dr. Hunt was of the opinion her lumbar spinal
canal stenosis was progressing and that “she requires a surgical decompression
of the lumbar spinal canal and may require a fusion at the same time, centered
at the L5/S1 intervertebral lumbar level”.  He was of the opinion the injuries
to her spine at the time of the accident were a “direct contributor” to her
condition.  He also was of the view her bowel and bladder dysfunction were
likely the result of the lumbar spinal stenosis and that she would now be more
prone to developing degenerative changes and problems at other levels of her
spine.

[28]        
Dr. Hunt testified the plaintiff would, at some
point, require ongoing monitoring by a pain specialist and scanning to identify
facet joint irritation followed by facet blocks.  He found she had a problem
not only with carpal tunnel compression but also with irritation of her
cervical nerves due to muscle spasms in her cervical spine.

[29]        
Dr. Hunt was also of the view that before
proceeding with spinal decompression surgery further investigative procedures
were required including repeat cervical spine  x-rays as well as an MRI scan of
the brain, cervical and lumbar spine to fully identify any other underlying
injuries.  When such investigation was done he recommended she be reassessed, Dr.
Walter Hartzell, a physician specializing in occupational health assessments
and medicine, conducted a fitness to work assessment on the plaintiff on April
4, 2007 at the request of her counsel.  At that time he had at hand the
ambulance report, hospital and radiation reports, medical report of Dr. Donna Yee
dated January 27, 2007, and reports from Drs. Longridge and Nasedkin dated
April 12 and 13, 2006 respectively.  Dr. Hartzell testified at the trial.

[30]        
Dr. Hartzell was of the opinion the plaintiff’s
complaints of headaches, neck and shoulder pain, left ear pain, vertigo and
right low back pain were the result of the accident.  He was also of the view
her carpal tunnel syndrome was aggravated by the accident.  Following testing
of her functional limitations he concluded the most important part of her
functionally limiting pain at that time was that it degraded her ability to
deal with the prolonged stressful situation in a school room throughout the
day.  He noted she continued to experience significant mental/psychological issues
compounded by chronic pain and stress which he said degraded the quality of her
vocational, personal and recreational life.

[31]        
Dr. Hartzell saw the plaintiff again June 3,
2009, to conduct a follow-up assessment and report.  He also testified at the
trial.  The plaintiff’s primary complaints at this time were pain, clicking and
tightness in her right jaw, numbness in her left and right hand/wrist area,
right lower back/sacroiliac area pain and numbness in the toes of her right
foot.  In his report dated June 3, 2009, Dr. Hartzell was of the view Ms. Pham-Fraser’s
increasing low back pain, right buttock and sciatic pain, was associated with
the accident.

[32]        
Dr. Hartzell was of the opinion the plaintiff
was at a point of what he called maximum medical improvement and would need
continuing symptomatic treatment by her family doctor and at some point a
further specialist assessment.

[33]        
In a note to his report dated July 17, 2009, Dr.
Hartzell commented on the conclusion reached by the defence’s expert witnesses
Dr. Schweigel and Dr. William Yee.  Dr. Yee’s evidence I have reviewed above. 
Dr. Hartzell relied on his own experience and background as an engineer trained
in aircraft accident reconstruction to opine that given the forces exerted on
the plaintiff’s lower back during the accident “Dr. Schweigel cannot rule
out a burst fracture” using the rationale that the forces were only in a “linear
horizontal direction”.  It was Dr. Hartzell’s opinion the plaintiff was
involved in a high energy deceleration with the major force applied to her
lumbar spine, moving the spine upward and then back down.

[34]        
The defence says Dr. Hartzell’s opinion in this
regard should not be admitted as he does not possess the expertise to give such
an opinion.  I will address this issue later in these Reasons.

[35]        
Dr. John Nasedkin, a prosthodontist,
specializing in reconstructive dentistry and the treatment of TMJ, testified at
trial.  He saw the plaintiff on April 11, 2006, in connection with her TMJ
problems.  At that time the plaintiff was complaining of headaches five times
per week, jaw joint clicking and popping with jaw muscles tiring frequently. 
On examination he found her right and left temporomandibular joints clicked or
“popped” on opening and closing her jaw.  He concluded her jaw joint problem
and limited jaw opening were “related directly to the accident”.  Although he
noted jaw joint dysfunction could result from orthodontic treatment which the
plaintiff had had a number of years earlier, the plaintiff was not aware of
this issue prior to the accident.  He also concluded her jaw joint age was two
times her actual age.

[36]        
Dr. Nasedkin recommended treatment which
included a jaw repositioning appliance, followed by either orthodontic
treatment or permanent restorations as overlays followed by bonded porcelain
canine risers.  He testified “it’s a reasonably big package to expect a person
to undertake … it’s a process of about three years of involvement, seeing the
dentist more or less every three weeks.  It’s a big deal.  It’s really quite a
big deal.”  He also testified the cost for the orthodontics was between $7,500 and
$8,500 and the canine risers could be from $3,000 to $6,000.  He further
testified that while the above procedures may make the snapping and popping
sounds “more tolerable” it was “unlikely” the treatment would result in a
complete remission.  He testified that without treatment her jaw was more at
risk of “more severe involvement”.  Dr. Nasedkin testified that given the
structure of the plaintiff’s facial bones she was predisposed or susceptible to
TMJ injury.  In cross-examination he agreed that the “structural
malpositioning” of the temporomandibular jaw joint was not related to the car
accident.

[37]        
Dr. Michelle Williams is a dentist specializing
in oral medicine that the plaintiff saw on April 29, 2008, at the request of
her family dentist.  Dr. Williams described the plaintiff’s complaints of pain
in her jaw area, more pronounced on the right than the left.  She said at the
time of assessment the plaintiff reported the jaw pain had improved over time
and was episodic in nature and mild in severity.  She also complained of jaw
related fatigue, some restriction in mouth opening and clicking of the jaw at
regular intervals.  She reported brief episodes of lockjaw which resolved
spontaneously, headaches and pain in the neck and shoulder region.

[38]        
In her assessment of the plaintiff, Dr. Williams
concluded the plaintiff had a significant TMJ condition which was contributing
to her head and neck pain.  Her TMJ findings included an early opening “click”
complicated by transient episodes of lockjaw.  The plaintiff also had mild
bilateral TM joint arthralgia and myofascial pain involving the neck and
masticatory musculature.  In Dr. Williams’ opinion, the accident was the
precipitating event for the development of the above described condition.

[39]        
Dr. Williams’ recommendation differed from that
of Dr. Nasedkin.  She recommended a conservative course of treatment with
emphasis on diet modification and wearing an occlusional appliance as long as
her jaw related symptoms persisted.  She recommended a custom made design which
she said should last for a minimum of five years.  She estimated the cost of
the appliance to be $700.  Dr. Williams “would not recommend orthodontic,
surgical or restorative interventions.”  She was of the opinion the plaintiff’s
TMJ condition was not disabling and that her prognosis was “favourable for
gradual and progressive improvement over time.”  She was of the opinion the
plaintiff’s TMJ condition should not impair her choice of work related or
leisure activity”.

[40]        
Dr. Susan Ganesan is a psychiatrist who first
saw Ms. Pham-Fraser on October 24, 2006, at the request of her family
physician.  She noted the plaintiff “suffers from major depression with
features of anxiety and post-traumatic stress.”  Dr. Ganesan reviewed the
course of the plaintiff’s treatment noting she recommended psychopharmacology
but that Ms. Pham-Fraser was reluctant to take medication.  The plaintiff
did take Seroquil which improved her sleep, and later commenced taking
medication which significantly improved her depressive anxiety and
post-traumatic stress symptoms.  These symptoms included having frequent
“visions of the crash” and “thinking that something could happen at any time
and things could get worse”.

[41]        
While noting the plaintiff was “quite a strong
person, with healthy defences” and that her “emotional and psychiatric
difficulties had responded to a combination of medication and supportive and
behavioural psychotherapy”, the plaintiff needed to continue medication for
another year, pending regular monthly reviews.  Dr. Ganesan noted the risk
of the plaintiff having a recurrence of anxiety, depression and other symptoms,
particularly if she was exposed to another major event, was mild to moderate. 
While the plaintiff did have a relapse as a result of discontinuing her
medication, her anxiety and depression has been much relieved.  The plaintiff
has recovered from her depression and post-traumatic stress symptoms although
she is still anxious when she drives.

[42]        
Dr. Neil Longridge is a physician specializing
in otology and in particular the evaluation of tinnitus, hearing loss and
dizziness.  He saw the plaintiff April 5, 2006, at the request of plaintiff’s
counsel.  He concluded the tinnitus the plaintiff experienced for several
months following the accident was very mild and it was unlikely to reoccur. 
The plaintiff has not had recurring symptoms.

[43]        
Dr. Peter Gropper is a clinical professor in
orthopaedic surgery at the University of British Columbia.  He examined the
plaintiff on April 24, 2008, at the request of plaintiff’s counsel for the
purpose of providing an independent medical legal report specifically addressing
the plaintiff’s carpal tunnel issues.  Dr. Gropper concluded the plaintiff
had bilateral carpal tunnel syndrome, greater on her left side than her right
side.  He noted a previous history of carpal tunnel problems during her
pregnancy in 2001 which had resolved.  He was of the opinion she was
predisposed to carpal tunnel syndrome at the time of the accident and that the accident
had aggravated this underlying condition and had brought on her symptoms.  He
suggested she undergo further assessment by a hand surgeon and that should she
elect to proceed with surgery her symptoms would very likely resolve.  Ms.
Pham-Fraser had surgery on her left wrist in March 2009, which gave her
significant relief.  At the time of trial she was planning surgery on her right
wrist.

The Defendants’
Medical Evidence

[44]        
The defendants called two medical practitioners
to testify at trial:  Dr. O’Shaughnessy, a psychiatrist; and Dr. Robert
Schweigel, an orthopaedic surgeon.

[45]        
Dr. O’Shaughnessy saw the plaintiff on August 7,
2007, at the request of her counsel for a psychiatric assessment.  At the time
he saw her she reported she had recently discontinued antidepressant medications
as she was feeling better.  He encouraged her to discuss the issue with Dr.
Ganesan as she was “still within the window of high risk for recurrence of
symptoms.”  The plaintiff also reported to him she was feeling “80% to 90% physically
and mentally well” and that she was hoping to achieve 100% improvement such
that she could return to a more active lifestyle.  It should be noted she could
not hike or snowboard at the time she saw him.  She told Dr. O’Shaughnessy she was
able to perform most activities of daily living and housework and fulfill her
position as a teacher.  She and her husband were considering having another
child.  Dr. O’Shaughnessy opined the plaintiff had experienced significant
anxiety symptoms with a “fairly sustained period of depressed mood” as a result
of the accident and that she ran a “substantial risk of relapse” which needed
to be closely monitored.  He was concerned she had voluntarily stopped taking
her prescribed medication.

[46]        
Dr. Schweigel saw the plaintiff April 27, 2009, at
the request of counsel for the defendants.  He prepared a medical legal report on
the same date and gave evidence at trial.  Dr. Schweigel had reviewed the plaintiff’s
medical files and reports filed by her physicians up to that time.  He noted in
his report she told him “everything is getting better over time” and that “she
doesn’t have any big problems.”  She told him she “is trying to do everything
that she normally does”, although she was not doing sports to the same degree
she was prior to the accident.  She had not returned to skiing or snowboarding
nor was she hiking for as many hours as she used to as it might “bother her
back.”  He wrote that she told him she “still gets a little bit of right sided
low back pain.”  She got pain if she sat or stood or walked for too long.  She
described numbness in her right toes and some incontinence in her bladder if
she sneezed or coughed.  She told him that after a full day of work her back
could be sore and that she avoided bending or lifting.  Dr. Schweigel also
noted the plaintiff complained of carpal tunnel problems in her left and right
side and TMJ related clicking in her jaw with headaches.  She also described
neck pain for the first six months following the accident which she told him
had now “settled down”.

[47]        
Following his examination and his review of her
CT scan report and Dr. William Yee’s report, Dr. Schweigel concluded Ms.
Pham-Fraser sustained soft tissue injuries to her neck and back and an
aggravation of her pre-existing carpal tunnel syndrome.  He did not comment on
her TMJ problem or her complaints of vertigo or dizziness.

[48]        
Dr. Schweigel disagreed with Dr. William Yee’s
opinion that she had a burst fracture at the L5 level of her spine.  He said a
burst fracture was not consistent with the mechanism of injury described by the
plaintiff and that it was uncommon to have such a fracture at the inferior end
plate and at the L5 level.  Further, he was of the view Ms. Pham-Fraser would
have complained of more lower back pain than she did following the accident. 
He concluded she had a pre-existing degenerative problem in her lumbar spine
and that she “probably” aggravated this condition which he said did not appear
to be symptomatic to her family doctor.  He described her period of disability
as being “roughly 6 to 12 weeks” off work and that after three months she would
be able to return to her teaching duties and to sporting activities as well. 
He was of the view she would not require surgery.  Her complaints of
“mechanical type symptoms” in her lumbar spine were related to some of the
degeneration seen on the CT scan.

[49]        
Dr. Schweigel prepared a further report dated
July 22, 2009, after he had an opportunity to review CT scans of the
plaintiff’s cervical and lumbar spine taken in July and March, 2007.  He noted
there were degenerative changes at the L3-4 and “significant degenerative
changes at the L5-S1 level.”  He noted a “very large posterior osteophyte on
the inferior aspect of L5”.  He wrote “the osteophyte did not look like a
fracture” and that it was in keeping with the degenerative changes.

Defendants’ Position
on Plaintiff’s Medical Experts

[50]        
Mr. Killas argued certain aspects of the expert
evidence called by the plaintiff were inadmissible and that other expert
opinion evidence should be given little or no weight.  In particular the defendants
argued I should give little or no weight to Dr. Hunt’s opinion the
accident created sufficient forces to produce damage to the L5 vertebral body
through abnormal axial loading.  Mr. Killas pointed out Dr. Hunt then qualified
this opinion with this remark:  “However a biomechanical engineer will need to
confirm this probability”.  Mr. Killas noted Dr. Hunt had not done an
investigation into the circumstances of the accident (vehicle speed, etc.) to
make his opinion.

[51]        
Mr. Killas also argued Dr. Hunt’s diagnosis that
the plaintiff sustained a brain dysfunction secondary to brain injury was
simply based on the reading of Dr. Longridge’s medical report and on an unproven
assumption the plaintiff had a lack of awareness of the circumstances of the
motor vehicle accident.  Mr. Killas also argued Dr. Hunt’s opinion the
plaintiff probably suffered abnormal axial loading on her spinal column during
the accident was qualified by Dr. Hunt when he said in his report that “a
biomechanical engineer will need to confirm this probability”.

[52]        
I accept Dr. Hunt’s opinion on both these
issues.  There was evidence concerning the plaintiff’s limited recollection of
what happened following the accident and I accept Dr. Hunt, given his
qualifications and special experience, was well able to offer the opinions he
did.

[53]        
I have ascribed as much weight to Dr. Hunt’s
opinion concerning the cause of the plaintiff’s lower back injury as I have on
the opinions of the other specialists who testified, including Dr. Schweigel. 
Dr. Hunt’s expertise (and that of the others) has been gained through many
years treating patients who have been involved in motor vehicle accidents.  He
is well qualified to offer the opinion he did.  The fact Dr. Hunt was
prepared to defer to the opinion of a biomechanical engineer does not, in my
view detract from his expertise in offering his opinion to the court on the
cause of the plaintiff’s lumbar spine injury.  I similarly find that the evidence
of Dr. Hartzell concerning the forces applied to the plaintiff’s lower spine
during the accident is helpful to the court and hence admissible, given his
experience and qualifications.  Both Dr. Hunt and Dr. Hartzell, through their
long and distinguished medical practices have had experience with persons with
spinal injuries.

[54]        
Mr. Killas also objected to a Cost of Future
Care Report prepared by Ms. Cathrine Husken, an occupational therapist and
a Past and Future Income Loss Report prepared by Mr. Carson, an economist,
arguing both reports should be inadmissible as they were based on facts not
made out in the evidence.  I admitted both reports into evidence on the basis
the information contained in the reports could be a useful guide to assist the
court to quantify the cost of future care should I find such care to be
established on the evidence.  It was for that purpose the reports were tendered
and it is for that purpose they have been used.

DISCUSSION REGARDING MEDICAL EVIDENCE

[55]        
There are several differences of opinion arising
from the expert medical opinion evidence which require comment.

[56]        
Dr. Schweigel took issue with the opinions of
Drs. William Yee, Hunt, Rickards and Hartzell as to the nature and extent of
the plaintiff’s injuries.  As stated, he was of the opinion she did not suffer
a burst fracture of the L5 but, rather, suffered a soft tissue injury to her back
which he said should have resolved within about three months of the accident.

[57]        
Dr. Schweigel saw the plaintiff August 7, 2007,
and examined her for between 15 and 30 minutes.  At the time of the examination
he did not have the subsequent medical reports of Dr. Rickards (July 2008), Dr.
Hunt (July 13, 2009) or Dr. Hartzell (July 13 and 17, 2009).  He was not aware
of the plaintiff’s ongoing complaints concerning her lower back and of the pain
radiating into her leg and foot.

[58]        
There were a number of reasons Dr. Schweigel
said he reached the conclusion the plaintiff did not have a burst fracture. 
One of his primary assumptions was that she did not complain of pain or
numbness in her right buttock, thigh and leg until December 2006, some 11
months after the accident.  This assumption proved not to be accurate.  First,
as Dr. Hunt explained, it was entirely consistent such pain or numbness was
hidden by pain arising from the muscle spasm she had in her dorsal spine.  The
plaintiff was in considerable pain all over her body for several weeks following
the accident.

[59]        
More importantly, she did complain of lower back
and related pain in her extremities shortly after the accident.  The ambulance
crew noted she complained of thoracic back pain.  She testified she noted
tingling and numbness in her extremities “right off”.  She said she could feel
the numbness going slowly down her leg starting right after the accident and testified
that at that time she was so sore it was hard to pinpoint exactly where the
numbness and pain was.

[60]        
When she saw Dr. Donna Yee on January 19 and 27,
2006, she complained of low back pain on both occasions and Dr. Yee made a note
of referred symptoms in her lower extremities on the latter visit.  Her notes
of this visit read that the plaintiff was complaining of low back pain off and
on ten times a day brought on by prolonged sitting or standing with radiation
to the buttock and thigh but with no numbness.  The plaintiff’s low back pain
persisted throughout the balance of 2006 up to the visit to Dr. Donna Yee in
December 2006 when the plaintiff’s complaints of low back problems intensified. 
The plaintiff’s physiotherapist, who the plaintiff was seeing weekly during the
spring of 2006, noted ongoing complaints of back pain.  On April 4, 2006
the physiotherapist noted a complaint of “Lower back – more aware of as neck
settling.”

[61]        
The lower back pain and other related symptoms which
Dr. Schweigel assumed were not bothering the plaintiff were in fact bothering
her immediately following the accident and up to her visit to Dr. Donna Yee in
December.  Based on the evidence, I must find that Dr. Schweigel’s assumption
that the plaintiff first complained of lower back pain in December 2006 is not
correct.

[62]        
The plaintiff had no complaint of lower back
pain prior to the accident (except for a brief period during her pregnancy) nor
did she have the other symptoms of numbness and pain into her buttocks and leg. 
I prefer the evidence of Drs. William Yee, Hunt and Rickards that the
plaintiff did likely suffer a burst fracture of her L5.  However, I am of the
view the debate between Dr. Schweigel and the plaintiff’s physicians is
somewhat academic.  The fact is the plaintiff’s back symptoms are real, they
were brought on by the accident and they significantly interfere with her daily
life.  Her symptoms are not likely to get better.  While the plaintiff feels
her back injury and pain has stabilized, her treating physicians are of the
view her symptoms are likely to get worse.

[63]        
I accept the plaintiff’s evidence she has experienced
significant low back pain from the date of the accident to date and that it bothers
her on a daily basis, particularly on the days she is teaching, but that she is
managing it with massage, medication and her other activities.

[64]        
Dr. Schweigel’s evidence did align better with
the other specialists when the plaintiff’s history of current symptoms was put
to him in cross-examination.  He acknowledged that if she did have symptoms of
pain and numbness in her right leg and foot in the weeks following the accident
it was likely the symptoms were triggered by the accident.  He agreed she had
significant degeneration in her spine but was unable to say what amount of
degenerative change was caused by the accident as opposed to being pre-existing
as the CT scan he viewed was done some 16 months after the accident.  He did testify
degenerative change took years to develop.  He also agreed that given the
symptoms she had described at trial the plaintiff’s symptoms were consistent
with stenosis and that the symptoms could get worse.  He agreed she may need
decompression surgery with the potential for a spinal fusion which, if it
occurred may accelerate further degenerative change in other areas of the
spine.  The effect of this evidence was to woefully undermine his opinion she
should have recovered from soft tissue injury.

[65]        
Dr. Schweigel assumed when he examined her that
the plaintiff’s incontinence was caused by stress.  He did agree however that
one of the symptoms of stenosis or narrowing of the spinal canal could produce
cauda equine syndrome and one of the symptoms of that syndrome was
incontinence.  He did not examine her to determine if she had such a syndrome. 
I accept the evidence of Dr. Hunt that the plaintiff’s present
incontinence is a direct result of the injuries sustained to her lower back in
the accident.

ASSESSMENT OF
DAMAGES

Non-pecuniary
Damages

[66]        
The principles to be applied in the assessment
of this category of damages were reviewed by the Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34 where Madam Justice Kirkpatrick, at para. 45
quoted from Lindal v. Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263:

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

[Emphasis in Stapley]

[67]        
The Court provided an “inexhaustive” list of
common factors to be considered in the award of non-pecuniary damages at para.
46:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental
abilities;

(i)         loss of lifestyle; and

(j)         the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, 2005 BCCA 54).

[68]        
The defendants argued that a number of the
plaintiff’s injuries were the result of pre-existing injuries or conditions. 
The defendants took the position the plaintiff’s lower back pain was the result
of an earlier fracture (if I found a fracture to exist) or injury or the result
of pre-existing degenerative change.  The defendants say the plaintiff would
likely have had problems with her lower back in any event and that any damage
award must recognize this as a mitigating factor.  The defendants also argued
the plaintiff was predisposed to TMJ and carpal tunnel syndrome.  The plaintiff
accepts that she bears the burden of showing that “but for” the negligent act
of the defendants the injury would not have occurred: Resurfice Corp. v.
Hanke, [2007] 1 S.C.R. 333.

The Plaintiff after the Accident

[69]        
At the time of trial, the plaintiff was 36 years
of age.  The injuries she sustained in the accident have had a significant
impact on her physically, mentally and socially.  While a number of her
injuries have resolved, she is left with a partial disability which is not
likely to resolve over time.

[70]        
Following the accident she was off work as an
elementary school teacher for two weeks.  She remained in bed in significant
pain.  She said she was sore everywhere with excruciating headaches, with pain
in her jaw and ear; her neck shoulders and arms were stiff and sore; she had
“pain everywhere”.  She returned to work after two weeks but took intermittent
time off work as required.  I accept that the plaintiff was driven to return to
work by her love of teaching and her concern for her students when other,
perhaps less motivated persons would have stayed home.  Her stoicism and her
drive to improve herself have been commendable.

[71]        
At the time of trial she still had headaches
which came on with recurring jaw pain.  She finds that in the course of her
work as a teacher she is required to speak often and when she does so all day
it brings on the pain.  She experiences this type of pain two to three times a
day and tries to control it with medication.  She has also changed her diet and
no longer eats chewy or crunchy food.  She said she has had her jaw lock up twice
in the last several years.  The plaintiff plans to undergo the treatment
suggested by Dr. Nasedkin if the more conservative treatment recommended by Dr.
Williams is not successful.

[72]        
The pain in her neck and shoulders has improved
although she does get pain in her shoulders when she gets tired.

[73]        
The plaintiff’s carpal tunnel syndrome in both
arms continued to bother her until 2009 when she had an operation on her left
arm.  She had significant pain on that side before the operation.  It has since
resolved.  She experiences numbness in her right arm which comes on one to two
times a day but she can control this by changing positions.  She intends to
have surgery to correct this problem shortly.

[74]        
As described earlier, Dr. Ganesan treated the
plaintiff during a period of depression following the accident.  She has now
recovered although is likely more susceptible to this condition.  She had
difficulty with her memory and concentration for approximately 1 – 1 1/2 years
after the accident which made it difficult to lesson plan and do other teaching
related duties.  She is now a much more nervous driver, particularly when
approaching intersections.

[75]        
The pain in the plaintiff’s upper and middle
back has improved and is no longer significantly symptomatic.

[76]        
The major source of the plaintiff’s ongoing
complaints is pain in her lower back which radiates into her right buttock
area, leg and foot with numbness.  The pain and related symptoms come on daily
while working and she describes them as “very painful” by the evening.  Her
back pain is aggravated by too much sitting, standing or walking and she has to
change her position throughout the day.  She is also bothered when bending over
her students’ desks as she assists them with their work.  Again, she takes medication
to try to control the pain.  The pain is particularly troublesome for her in
the evenings and at night.  She testified her symptoms were relieved in the
summer months when she was not working but that as soon as she started the
school year they came on again and had done so for the last three years.  Her
husband gives her a nightly massage to help relieve the pain in her back and
legs.

[77]        
I accept the plaintiff’s evidence and that of
her attending physician that she experienced lower back pain immediately
following the accident.  She had no symptoms of low back pain prior to the
accident except in the third trimester of her pregnancy in 2001.  It is likely
that some of her lower back injury symptoms were masked by pain in other parts
of her body.  As stated, I do not accept that the first time she complained of
lower back problems was in December 2006.  It is clear on the evidence however
that is when her lower back problem became worse.

[78]        
As stated above, I also accept the plaintiff’s
problem with incontinence when coughing or sneezing is a direct result of the
spinal stenosis and cauda syndrome she now suffers.  Both conditions were
caused or brought on by the accident.

[79]        
The defence argued that the plaintiff’s injuries
were not as bad as she made out.  In support, Mr. Killas referred to remarks
made by the plaintiff to several physicians she saw.  Dr. Roy O’Shaughnessy
noted when she saw him on August 2, 2007 she “estimates that she is now 80-90%
physically and mentally well and is aiming to achieve 100% improvement, so that
she could return to some of the more demanding activities she enjoyed in the
past …”.  Ms. Pham-Fraser acknowledged in cross-examination that her
statement was correct at the time she made it.  She also testified that her
symptoms were much better over the summer months when she was not teaching. 
The plaintiff is generally an optimistic and self-depreciating person.  It is
clear that while she has been working hard at trying to achieve her
pre-accident physical condition she has simply been unable to do so.

[80]        
Mr. Killas also referred the plaintiff to
comments she made April 27, 2009, to Dr. Schweigel that “everything is
getting better over time” and that she “doesn’t have any big problems”.  The
plaintiff said she did not recall saying those remarks but that she was coping
better with her symptoms.  She said she was trying to be positive about her
symptoms and stay healthy.  She did not agree her symptoms were getting better
but maintained they were now static.  It is noteworthy Dr. Schweigel goes
on to state in his report she told him she was not doing sports to the same
degree she was prior to the accident and she had not returned to snowboarding
or skiing.  She told him she was not hiking as many hours as she normally would
because doing so might bother her back.  She also told him that after a full
day of work her back can be sore and that she “generally avoids bending and
lifting” as she does not wish to aggravate her back.

[81]        
She told Dr. Haw, another consulting physician she
saw on November 7, 2007, her symptoms had “been progressively improving
recently.”  The plaintiff acknowledged in cross-examination she said this to
Dr. Haw.  However, Dr. Haw also advised her that she had stenosis and that
her symptoms may worsen.  In a report of December 9, 2009, Dr. Haw wrote that
on a reassessment of the plaintiff on November 26, 2008 the plaintiff told him
she was stable and possibly slowly getting better.  While she agreed she sold
him this she also told his she was experiencing persistent back pain which
increased during the evenings.  She told him she could only walk 30-40 minutes before
she had to stop and rest.

[82]        
The defendants also argued several of the
injuries sustained by the plaintiff were the result of pre-existing conditions. 
The plaintiff’s medical records establish and I accept that she did have a
medical history of left elbow problems (tennis elbow), carpal tunnel syndrome
in her wrists, TMJ dysfunction and vertigo.  Dr. Donna Yee’s last note of any
TMJ complaint by the plaintiff before the accident was in March 2003.  In
August and September 2005, in Dr. Yee’s last clinical notes made before the
accident, she saw the plaintiff for carpal tunnel and elbow complaints.  She
noted “slow to improve”.  The last note of any complaint of back pain was
September 23, 2000, during the plaintiff’s pregnancy.

[83]        
Prior to the accident the plaintiff was a very
active individual who enjoyed many sporting and outdoor activities.  She
snowboarded, participated in kickboxing, took “full out” kickboxing, advanced
aerobics classes, and hiked and camped with her husband.  Her activities have
been significantly affected by the accident.  She has been able to return to
some low impact kickboxing type activities which have a focus on aerobic and floor
exercises, and participates in hot yoga classes.  She is focused on maintaining
her health and building her strength.  She has worked at rehabilitating herself
with physiotherapy, water hydrotherapy, and has tried acupuncture and massage
therapy.  The latter provides her with the most relief and she continues to
attend weekly, except during the summer months.  It is her intention to
continue with massage therapy.

[84]        
The plaintiff and her husband experienced a
tumultuous time during the two years after the accident as the plaintiff worked
through the depression and anxiety it caused.  They enjoyed an active social
life before the accident which was and still is significantly disrupted as the
plaintiff has neither energy nor interest in maintaining it at the level it
was.

[85]        
The effect of these conclusions is that the
accident has brought on the plaintiff’s current pain and suffering which
interferes with her day-to-day activities.  However, it is likely that the
plaintiff would have experienced significant lower back problems and would
require surgery.  This is a factor to be taken into account in my assessment of
damages.

[86]        
The plaintiff also claims that, as a result of
the injuries sustained in the accident she has lost the ability to bear a
second child.  Both she and her husband, Paul, testified that they had planned
to have a second child.  However, as a result of the back pain she experienced
during Ethan’s birth and more particularly because of her current lower back
pain and stenosis they have concluded is not practical for her to undergo
natural childbirth.  They have accordingly made an application to adopt a child,
were attending interviews at the time of trial and were optimistic they would
be successful.  While I understand the plaintiff’s position, I received no
medical evidence on the effect a pregnancy would have on the plaintiff.  Without
such evidence, it would be quite speculative to conclude she is unable to
undergo natural childbirth.  Accordingly, I do not award damages for this claim.

[87]        
I have kept the factors from Lindal in
mind when considering my award of non-pecuniary damages.  I have reviewed the
cases referred to by both counsel, to whom I am indebted for providing me with
extensive submissions on this and related damages.  Each case must be decided
on its particular facts.

[88]        
It is clear Ms. Pham-Fraser has been
significantly impacted by the accident.  Prior to the accident she enjoyed a
number of recreational pursuits she can no longer enjoy to the same extent. 
She no longer has the stamina to enjoy what was formerly an active social
life.  She has and will continue to have daily pain in her lower back and
extremities.  This is particularly troublesome for her in her teaching
position.  She has tried to maintain a positive attitude toward her injuries
and to work to keep herself in as good physical condition as she can.  It is
likely her condition, although greatly improved from what it was, has reached a
plateau and that as the problems associated with her spinal stenosis increase
her condition will decline and she will require surgery.  Again, however, given
the pre-existing degeneration in her spine, it is likely such surgery would
have been required in any event within the next 15-20 years.  I award her $95,000
in non-pecuniary damages.

Past Loss of Income

[89]        
The plaintiff does not claim for lost wages but,
rather, seeks reimbursement for time she used from her accumulated sick bank
with the Richmond School District to cover absences related to injuries
suffered in the accident.  The plaintiff’s evidence was that she was initially
off work for approximately two weeks and then took time off for the balance of
that school year whenever her symptoms required she do so – usually in half
days here and there.  She also took time off in the following school year,
again in half-day absences.

[90]        
The appropriate approach is to compensate the
plaintiff for the dollar value of the time she has drawn from her sick bank:  see
Bjarnson v. Parks, 2009 BCSC 48 at paras. 55-66.  Under the terms of the
plan there is no maximum limit on the number of days that can be accumulated, and
there is no ability to cash out sick days.  Given the prognosis she will
require back surgery, it is likely she will utilize such accumulated sick leave.

[91]        
The plaintiff is content her sick bank be
reimbursed for days she had to take off during January to June 2006.  There
were 22.6 such days.  The plaintiff was paid a daily rate of pay of $285.80 as
of January 1, 2006.  I calculate her loss at $6,459.08.  The amount is to be
paid to the Richmond School Board to reinstate lost sick days.

Special Damages

[92]        
I accept the amount of $7,650 the plaintiff
claims as special damages.  The defendants took issue with a number of the
expenses, including sums paid to Fitness World, massage therapy and for a new
mattress.  I find all were incurred to assist the plaintiff in her recovery.

[93]        
The plaintiff also claims for the expense of
hiring a housekeeper for one year following the accident.  I accept this as a
reasonably incurred expense necessary during the plaintiff’s convalescence
period following the accident.  The amount awarded is $3,120.

Damages for
Diminished Earning Capacity

[94]        
The plaintiff claims damages for diminished
earning capacity to compensate her for income that she would have been able to
earn in the future but will be unable to earn because of the injuries she sustained
in the accident.   The plaintiff’s claim has three components:  the first claim
is for lost opportunity to pursue her Master’s degree in education; the second claim
is for damages for loss of future earning capacity as described in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); and the third claim is for
damages for missed work in the future.

[95]        
In Marios v. Pelech, 2009 BCCA 286, the
Court of Appeal, per Smith J.A. confirmed the proper approach to be followed by
a trial judge when considering an award for diminished future earning
capacity.  He stated:

[35]      … He [the trial judge] canvassed
the relevant law and quoted some appropriate passages, including the following
passage from Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158, 147
B.C.A.C. 56, which sets out the proper approach:

[8]        The
most basic of those principles is that a plaintiff is entitled to be put into
the position he would have been in but for the accident so far as money can do
that.  An award for loss of earning capacity is based on the recognition
that a plaintiff’s capacity to earn income is an asset which has been taken
away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229
(S.C.C.); Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (B.C.C.A.).
 Where a plaintiff’s permanent injury limits him in his capacity to
perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation.  What is being compensated is
not lost projected future earnings but the loss or impairment of earning
capacity as a capital asset.  In some cases, projections from past
earnings may be a useful factor to consider in valuing the loss but past
earnings are not the only factor to consider.

[11]      The task
of the court is to assess damages, not to calculate them according to some
mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 (B.C.C.A.).  Once impairment of a plaintiff’s
earning capacity as a capital asset has been established, that impairment must
be valued.  The valuation may involve a comparison of the likely future of
the plaintiff if the accident had not happened with the plaintiff’s likely
future after the accident has happened.  As a starting point, a trial
judge may determine the present value of the difference between the amounts
earned under those two scenarios. But if this is done, it is not to be the end
of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, (March 6, 1995),
Doc. CA018742, CA018743 (B.C.C.A.); Parypa v. Wickware, supra.  The
overall fairness and reasonableness of the award must be considered taking into
account all the evidence.

[18]      The assessment of damages is a
matter of judgment, not calculation.

[96]        
See also Hay v. Hofmann, 1999 BCCA 26 and Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.).  In Hay the court made
reference to Steenblok as one of the leading cases and pointed out in
that case Hutcheon J.A. stated:

…substantial
possibilities fall to be considered and that the degree of likelihood or
certitude that might be applicable in considering the standard of proof
concerning past losses cannot be reasonably expected when one is dealing with
an estimate of what is likely to occur in the future.

[97]        
I accept the plaintiff would have proceeded to complete
her Master’s degree in education and likely moved into an administrative
position at some stage in her career.  She and her husband had a plan they intended
to follow which involved the plaintiff obtaining her Master’s degree and I am
satisfied she would have done so had she not been involved in the accident.  I
also think the plaintiff will ultimately complete her degree although perhaps
not as quickly now that she and her husband have made the decision to adopt a
second child or for other contingencies that could occur in the future.  I
conclude it would have likely taken her between three and four years to
complete her degree.  The accident has likely delayed the plaintiff by about
three years in taking the step to commence and complete her course.

[98]        
The defendants’ position is that the plaintiff’s
claim for loss of income arising from any disruption from attending university
to complete a Master’s degree was only “a distant ill-defined dream or
aspiration” and had been artificially constructed prior to trial to assist her
in providing an artificial platform for a damage claim in this area.  The
defendants point out the plaintiff never mentioned her plan to any of the
physicians she saw not is it referred to in her statement of claim.

[99]        
I do not accept the defendants’ position.  I
accept the plaintiff’s evidence that her plan to advance her career was a
concrete one and that she would have carried through with it.  She had spoken
to Ms. Maria Medic, an administrator at the school, to enquire into pursuing a Master’s
program and moving into administration.  Ms. Medic testified she
encouraged her to pursue the program and told her she would make a good administrator. 
Ms. Medic testified the District was “shoulder tapping” and encouraging people
who it was felt had the potential to pursue a Master’s degree and said she felt
the plaintiff was such a person.

[100]     Had the plaintiff registered in a Master’s program she would have
received a salary grid increase and she would have received further salary grid
increases upon completion of her degree.  Further, she would have received an
increased salary had she been appointed to a vice principal or principal
position.  I find it likely Ms. Pham-Fraser would have achieved the status
of principal.  There is also the possibility that her plans could have been
diverted as a result of having a second child.  Career and family plans were
very much intertwined.

[101]     Apart from the initial two-week period, the plaintiff has not taken much
time off work as a result of accident related injuries.  I find this is not
because she has not been suffering but, rather, because of her love for her job
and concern for the children she teaches.  The plaintiff has demonstrated she
is very motivated.  She has been at work when others would have stayed home and
has sacrificed her relationship with her husband and her social life.

[102]     Based on the medical evidence I find it is likely she will miss work
in the future.  The accident triggered low back symptoms which have increased
over time and have spread to her left foot and toes.  Her symptoms may
increase.

[103]     Dr. Rickards presented the most negative view of the plaintiff’s
future stating that without treatment she would likely find it difficult to weight
bear over the next five to ten years.  With decompression surgery she will
still experience low back or lower extremity symptoms.  Dr. Hunt also testified
that decompression surgery was likely to bring on difficulties with other areas
of her spine.

[104]     It is difficult to forecast with any accuracy the future for the
plaintiff with respect to lost income as a result of accident related injuries. 
As far as her spinal injuries are concerned I conclude the accident aggravated
her pre-existing disc degenerative condition.  The symptoms she currently has
were a direct result of the accident.  She was previously non-symptomatic.  It
is very likely she will have to undergo decompression surgery and will lose
time from work as a result.  There is the chance such surgery could cause
further back complications requiring further surgery.  The plaintiff had pre-existing
degenerative changes in her lumbar spine at the L5-S1 level and, according to
Dr. Hunt would have required decompression surgery in the future in any
event.  It is also of course possible surgery may improve her back problems. 
It is possible she may have aggravated her pre-existing condition while doing
one of the many sporting and physical activities she was involved in.  There are
any number of contingent circumstances that could occur that would affect her
ability or desire to work.  As Dr. Hartzell pointed out, teaching is a very demanding
and stressful occupation.

[105]     The plaintiff’ is currently planning to work to age 65.  These plans
may change in the future.

[106]     The delay in moving up the salary grid will have an impact on her
pensionable earnings when she does retire from teaching.  According to Mr.
Carson, the present value of $1,000 from the trial date to Ms. Pham-Fraser’s
65th birthday is $20,103.

[107]     Without engaging in any theoretical mathematical calculation but
endeavouring to take all the relevant medical evidence into account as well as contingencies
that may occur, I consider fair compensation to award the plaintiff for loss of
future earning capacity is $225,000.

Cost of
Future Care

[108]     The plaintiff’s claim for damages for the cost of future care must
be assessed with some care as this head of damage must recompense the plaintiff
for damages sustained in the accident, not for cost she would likely have
incurred in the future in any event arising from her pre-existing conditions. 
The principle underlying an award for the cost of future care is set out in Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987) 49 B.C.L.R.
(2d) 99 (C.A.).

[109]     In Milina, McLachlin J. (as she then was) stated, at paras.
198-200:

198 If there was any doubt as to whether the award for cost of
future care must be justified on a medical basis, it was dispelled by MacDonald
v. Alderson, [1982] 3 W.W.R. 385, leave to appeal to the Supreme Court of
Canada refused. In that case it was suggested that the plaintiff, a
quadriplegic, should be awarded sufficient funds to purchase and maintain his
own house on the non-medical grounds that this would give him a greater sense
of " ‘autonomy, privacy, financial stability and pride of ownership . . .
and greater opportunities for gardening, owning a pet, and more space for
hobbies’ ". The Manitoba Court of Appeal rejected this evidence as
"subjective theorizing" and reduced the award made at trial. The test
for determining the appropriate award under the heading of cost of future care,
it may be inferred, is an objective one based on medical evidence.

199 These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable. On the latter point, Dickson J. stated in Andrews at p. 586:

An award must be
moderate, and fair to both parties . . . But, in a case like the present, where
both courts have favoured a home environment, "reasonable" means
reasonableness in what is to be provided in that home environment.

200 This then must be the basis
upon which damages for costs of future care are assessed.

[110]     In my view the best guide to follow for an award for future costs is
the cost incurred by the plaintiff in the immediate past or as may have been
recommended by physicians who have seen her recently.  Such costs must be
related to injuries sustained in the accident and must be discounted to the
extent the plaintiff had pre-existing conditions which would have manifested
themselves over time in any event.  The plaintiff produced a Cost of Future
Care Analysis prepared by Ms. Husken.  Ms. Husken testified as to the
cost of various treatment options recommended in the medical reports.  I will
review each of the items as outlined in her report.

[111]     I do not allow any amount for the cost of prosthetic dentistry as
testified to by Dr. Nasedkin.  Dr. Williams has recommended a more conservative
treatment program.  Further, I cannot ignore the fact the plaintiff had
symptoms of TMJ before the accident.  The plaintiff has demonstrated on the
balance of probabilities she will incur future costs for her TMJ problem which
I find to have been aggravated by the accident.  Dr. Williams outlined the cost
of a recommended appliance for treatment.  I award $1,500 to cover the cost of
this appliance.

[112]     The plaintiff claims an amount for driver training.  She testified
she is more anxious and nervous when she drives particularly when she
approaches intersections.  While the plaintiff may benefit from driver training,
there is, in my view, no sufficient medical recommendation that warrants this
expense being awarded.  The best that can be said is that such training “may”
lessen the plaintiff’s anxiety.

[113]     I award no amount for psychiatry or for a psychological assessment
as the evidence does not establish on the balance of probabilities such
expenditures will be required in the future.

[114]     The plaintiff claims for the cost of a rehabilitation program which
included the initial cost of treatment by a physical therapist, follow-up by a
kinesiologist and the cost of gym membership, acupuncture and massage therapy.

[115]     I do not allow the claim for gym membership.  The plaintiff enjoyed
a healthy lifestyle before the accident which included regular attendance at a
gym and at yoga and kickboxing classes.  She still performs similar physical
activity but with less intensity.  In short, the plaintiff would have incurred
this expense notwithstanding the accident.

[116]     I do not allow the claim for acupuncture as the plaintiff tried this
treatment and discontinued it.

[117]     I accept there is benefit to the plaintiff undergoing massage
therapy as recommended by Dr. Ganesan in her May 26, 2008 report.  Dr. Ganesan
does not recommend the frequency of treatment.  Ms. Husken notes the cost of
such treatment is $450 to $840 on an annual basis.  The plaintiff attends
therapy weekly during the school year at present.  Given the plaintiff’s
ongoing back problems and the fact that she experiences relief brought on by
nightly massages given by her husband, I consider an award of $7,500 plus GST ($7,875)
to be reasonable to cover the future cost of this benefit.

[118]     Given the evidence the plaintiff will continue to suffer pain in her
lower back area, I also accept Dr. Hartzell’s recommendation she be assessed by
a physical therapist with a view to developing a rehabilitation program and
that she then be supervised by a kinesiologist to instruct her in self-directed
pain management techniques, improvement in her general strength and core muscle
stability.  Ms. Husken’s evidence was that the physical therapist’s recommendation
and treatment would cost approximately $660 and the kinesiologist would cost
$330 for the first six weeks and $660 per year for follow-up.  I have taken
into account the plaintiff’s pre-existing degenerative condition and the fact
that she would likely have experienced significant back pain in any event of
the accident and have discounted the award to $15,000 plus GST ($15,750).

[119]     Based on the evidence I also consider it reasonable to award a sum
for the future cost of housekeeping services on the basis of the four hours per
week the plaintiff currently employs a housekeeper.  Again, the plaintiff’s
ongoing back pain makes it difficult for her to do many housekeeping chores
particularly after the school day is over.  The plaintiff currently pays $15
per hour for four hours of housekeeping a week.  Using Mr. Carson’s cost of
future care calculations (Exhibit 1, Tab 13) the cost of such care over
the plaintiff’s lifetime would be $71,182.  Given the plaintiff’s pre-existing lower
back problems and other contingencies I apply a 40% discount to this amount and
award $42,709 plus GST ($44,844.45).

[120]     Ms. Pham-Fraser continues to take medication for relief from her
headaches, shoulder and back pain.  At the time of trial, these medications
included:  Naproxen; Tylenol Extra-Strength; Tylenol Ultra; and sometimes
Tylenol 3 with codeine.  I find it reasonable to award her a lump sum of $5,000
inclusive of GST to cover the cost of future medication.

SUMMARY

[121]     In summary, I award the following damages:

Non-Pecuniary damages                                        $ 
95,000.00

Past Loss of Income
(Reinstatement of sick days)        6,459.08

Special damages                                                        7,650.00

Reimbursement for
housekeeping expenses                 3,120.00
incurred

Damages for Diminished
Earning Capacity                225,000.00

Cost of Future Care:

Dental Appliance                                                         1,500.00

Massage Therapy                                                       7,875.00

Physical Therapy and
Kinesiology                              15,750.00

Housekeeping                                                           44,844.45

Medication                                                                  5,000.00

TOTAL                                                                 $412,198.53

[122]     Counsel may file submissions on the issue of costs within 21 days of
this decision being issued should they not be able to agree.

“GREYELL J.”