IN THE SUPREME COURT OF BRITISH
Peacock v. Battel,
2013 BCSC 958
Peter R. Battel,
British Columbia Hydro and Power Authority and
Accenture Business Services for Utilities Inc. Services DAffaires DAccenture
Pour Utilities Inc.
– and –
Dylan Paul and
The Honourable Mr. Justice Affleck
Reasons for Judgment
Counsel for Plaintiff:
Counsel for Defendants:
Place and Date of Trial:
New Westminster, B.C.
November 27-29, 2012
Place and Date of Judgment:
New Westminster, B.C.
May 30, 2013
The plaintiff sues for damages for injuries arising out of two accidents
which occurred when she was driving her vehicle. Liability is admitted in both.
The first accident happened on February 27, 2008, near Savona when the
defendant Peter Battel, while driving a British Columbia Hydro truck on a rural
gravel road, attempted to make a u-turn while in the path of the plaintiffs
vehicle. The plaintiff was driving a 1986 Ford pick-up truck and its right
front corner struck Mr. Battels vehicle.
The plaintiff was wearing a lap seat belt but the force of the collision
caused her to strike her head on the windshield. She recounts a brief loss of
consciousness and then feeling nauseous. She experienced injuries to her neck,
shoulder and back and had grasped the steering wheel so firmly that she says
that she pushed in my fingers. Her right knee was also hurt.
Apparently the defendant driver called the police, ambulance and a tow
truck. The plaintiff wanted to get home to her dogs that needed attention and
she chose to be driven home by the tow truck driver. The nearest hospital was
in Kamloops, 60 kilometers away and she waited a few days before she decided
to go to the Royal Inland Hospital.
On returning home after the accident, the plaintiff recalls that she was
in shock, was feeling nauseous, and had considerable pain. When she attended
the hospital, she complained of pain in the right side of her body, in her
right knee, her jaw, her neck and her shoulders. She had been experiencing
difficulty sleeping and suffered from anxiety. She describes herself as being
upset and not able to function and she felt that my life force had got taken
away. Over the next few months the plaintiff continued to feel horrible. She
began to receive chiropractic, massage and acupuncture treatments.
Over the next few months the plaintiff began to recover and by the time
of the second accident on January 17, 2009, believed she was about 75% better.
That accident happened in Pitt Meadows. The defendant Dylan Paul was
driving a vehicle with the consent of the defendant owner, Susan Paul, which
collided with the rear of the plaintiffs vehicle. The plaintiff described the
impact as full force and without warning, causing her to feel as if an
electrical shock had hit her body.
The plaintiff went to a medical clinic immediately after the second
accident. She described experiencing a massive headache as well as pain in
her neck and shoulders. She believes she re-injured largely the same areas of
her body as were injured in the earlier accident. Her jaw continued to have an
ongoing problem. She was in a lot of pain immediately after the second
accident, and again had trouble sleeping with pain in her right hip, leg and
foot. She also refers to short term memory loss.
The plaintiff testified that by the time of the trial she was not doing
well with emotional problems. She says her concentration is adversely
affected and her anxiety and depression are getting worse.
The plaintiff is 53 years of age. She is unmarried and lives alone. She
has a grade 12 education. She lives on a 14 acre property near Walachin on
which she has operated a business called The Rock N River Rustic Retreat.
The plaintiff has worked hard throughout her life. She has been involved
in jobs as various as hair dressing, construction labouring, and has also
worked in the logging industry. She was described by others as being capable of
working like a man.
The plaintiff was operating her resort business at the time of the first
accident. She had also been getting part-time work through Labour Ready in
Kamloops. She abandoned the latter work after the second accident. She
testified that she could no longer manage the physical work involved.
The resort business largely operated as a bed and breakfast. The
plaintiff had decided to create a dream of a fishing resort. Until the
accidents, the plaintiff operated the business entirely by herself doing all of
the physical labour, which was no doubt demanding. She had purchased the
property in the mid 1980s when it was raw land. Largely by herself, she cleared
part of the land, built gardens and roads and made a number of campsites. She
moved a house onto the property to use as a bed and breakfast facility.
Eventually there were 25 campsites, 3 bed and breakfast rooms, and a trailer
that she rented to fishermen.
Over time the plaintiff built fences, rock gardens and installed an
irrigation system. She had hopes of expanding the business beyond what had been
achieved by the time the accidents happened.
The business was seasonal and relied heavily on customers interested in
hunting and fishing. It would operate from May through about late October each
year, with perhaps a few customers outside those months. In the off months the
plaintiff looked for other work to supplement her modest income. In February
2008, when the plaintiff had the first accident, the resort had not yet opened
for the season. The plaintiff was working as a courier.
Following the second accident in 2009 the plaintiff was not able to
operate the resort to the extent she had in previous years, including operating
it in 2008 following the first accident. Her evidence was that the physical
work was now beyond her capacities. The resort did not open in 2009 until July
and even then the plaintiff had to hire a woman named Lori to help with the
housekeeping. She also persuaded her mother and a couple of male friends to
help with the business. The plaintiff has not looked for winter work since the
January 2009 accident because of her injuries.
In the summer months of 2010 and 2011, the plaintiff kept the resort
business open and did a limited amount of work to keep it going. In 2012 the
resort was largely closed. The plaintiff testified that it needed constant
attention which she could not provide. The business has not operated since the
beginning of October 2012.
The plaintiff has been prescribed a variety of medications, the most
prominent being Gabapentin for pain relief and Cymbalta for relief of
depression and anxiety. She has had 26 periodic chiropractic treatments since
the first accident but with extensive gaps in time, such as those between July
2009 and August 2010, and again October 2010 and May 2011. She has had
physiotherapy treatments since the second accident with 20 of them occurring in
2012. Some of the gaps in chiropractic treatment are explained by the
plaintiffs lack of money to pay for treatment. The plaintiff has also had 14
massage therapy treatments, the last in May 2011. There were also 5 acupuncture
treatments between September 2008 and September 2010. The gaps in treatment are
explained not only by a lack of funds, but also by the fact the plaintiff
resides a considerable distance away from Kamloops and it has been difficult
for her to attend for treatment.
The plaintiff attended on a family physician, Dr. Teodor Ivanov in Pitt
Meadows. Her evidence was that it has been difficult for her to find a family
doctor in Kamloops which is the closest metropolitan area to where she has been
living. I accept she had this difficulty and it is reflected in part in her
mileage expenses claim as special damages.
Dr. Ivanovs written report of June 28, 2011 was relied on at the trial
and he also testified. Dr. Ivanov reports that the plaintiff told him she had
no loss of consciousness from the first collision but had low back, shoulder
and neck pain which persisted for several months but was largely recovered
after six months. She was basically fully recovered by the time of the next
accident in January 2009.
In his June 28, 2011 report, Dr. Ivanov wrote the following:
Tammy Peacock reported in her
history of MVA that after the accident in January 2009 she had an immediate
shock-like electric sensation that radiated down her entire spine and since
then she has had chronic low back pain, hip pain which is described as a sharp
and stiff and predominately present on the right side and only slight on the
left side. She has recurrent cramps and tingling sensation which affects the
right thigh and particularly the right leg laterally. It is helped by Epsom
salt baths and heat. Standing, sitting or lying down makes no difference to the
severity of the sensation. She gets cramped up with walking. The pain gets
worse with inactivity, but also gets worse with physical activities like
standing or sitting for a long time.
Other complains include bilateral
gluteal pain and lateral hip area pain, which radiates to the right lower
extremity. This is again mainly in her right posterior thigh, all he (sic) way
down to her right foot. Tammy reported that she has very low energy level,
feeling fuzzy head, intermittent blurred vision, headaches and poor sleep.
She reported that her sleep is disturbed on account of constant pain.
Dr. Ivanov opined that the persistence of symptoms over two years is
worrisome. To date, no clear origin was found. In cross-examination Dr. Ivanov
testified the plaintiff had stopped using Gabapentin and Cymbalta despite his
view that they had helped her to recover 80%. He recommended she keep on with
those medications. In a report of September 3, 2012, Dr. Ivanov, in response to
a request from the plaintiffs then counsel, opined that the persistence of the
plaintiffs symptoms over four and a half years from the first accident
suggests a multi-factorial origin, major depressive order, fibromyalgia,
chronic pain syndrome, and chronic fatigue…. He went on to say that in her
case, symptoms are widespread and cannot be explained by specific injuries
sustained in the two MVAs.
In his report of May 20, 2012, Dr. Ivanov comments that he had not seen
Ms. Peacock for consultation since April 7, 2011, and Im not in a
position to comment on her progress and current status as well as elaborate on
her prognosis. Notwithstanding Dr. Ivanovs comment in his September 3, 2012
report, that the plaintiffs symptoms cannot be explained by specific injuries
sustained in the two MVAs, I do not interpret that remark to mean that he has
concluded that the MVAs have not caused the injuries and other complaints
experienced by the plaintiff. In fact after describing the plaintiffs
difficulties including symptoms of a major depressive disorder and chronic pain
syndrome, he goes on to say that he assumes that all of the described above
symptoms are result (sic) of the injuries sustained in the two motor vehicle
On July 19, 2012, at the request of her then counsel, the plaintiff
attended on Dr. Russel OConnor, a physiatrist. In his report, Dr. OConnor
lists documents provided to him for review including the records of eight
physicians. Of those eight, only Dr. Ivanov and Dr. Oladele Odubote testified
at the trial. Nothing turns on the absence of the other doctors.
Dr. OConnors report places considerable emphasis on the sedentary
nature of the plaintiffs life since the accidents. She has gained 40 pounds in
weight since the first accident. Dr. OConnor observed that the plaintiff was
overweight even before the first accident, but nevertheless she seemed to be
coping well and doing all the activities around the property. I accept that
conclusion and accept that the plaintiff was functioning well prior to the
first accident and capable of managing her business with all of its physical
Dr. OConnor observes that the plaintiff had experienced an injury in an
earlier motor vehicle accident and was at increased risk of having further
problems as a result. Whatever the effects of the earlier accident, which
seems to have been serious and partially disabling for perhaps as much as two
years, the plaintiff nevertheless had overcome the earlier injuries, at least
to the extent that they no longer were adversely affecting her ability to
maintain and manage her resort effectively.
In Dr. OConnors opinion the February 7, 2008 accident caused musculoligamentous
strain to the plaintiffs neck with pain across the neck and trapezius and
some mid back pain. Dr. OConnor could not exclude the possibility that she
suffered a concussion given her reports of lack of memory of the details and
feeling like she had blacked out at the time of the first accident in February
2008, especially combined with immediate onset of nausea, vomiting and
dizziness. Dr. Ivanov recorded the plaintiff had told him she had not
lost consciousness after the first accident. Her blackout seems to have been
transitory at most.
Following the accident of January 17, 2009, Dr. OConnor found
aggravation of neck pain:
…which is a combination of
ongoing myofascial pain and soft tissue pain and likely some contribution of
neck pain coming from some of the degenerative changes in her neck which are
widespread and pre-existing. This was initiated probably by the first accident
in 1991, stirred up or aggravated by the 2008 accident, and perpetuated and
re-aggravated again by the 2009 accident.
Dr. OConnor reports the plaintiff had responded:
…dramatically to Gabapentin and
Cymbalta. She was actually to the point where she was pain-free, by her report,
and that she was able to do all the things that she wanted to do. For some
reason, she decided to stop all this medication and she has regressed and
returned back to her prior state.
Dr. OConnor recommends:
Should she keep on this
medication, it is my opinion that she would be able to maintain her pain levels
enough to get back to her duties around the home, for the most part, and be
able to cope with managing her facility potentially with some minor assistance
depending on how her back comes along.
The low back pain and right leg pain from the second accident, Dr.
…caused a strain to her back,
particularly a strain to the L5-S1 facet on the right. This has caused some
referral symptoms down the right leg but no real dramatic neurological
Under the heading of disability Dr. OConnor wrote the following about
She has gotten to the point where all of her pains had
settled on Gabapentin and Cymbalta, arguing that the major problem is a chronic
pain problem in keeping with soft tissue pain and deconditioning and also in
keeping with prominent pain related to her mood and anxiety. This is (sic)
suggests prominent mood and anxiety features that drive the pain, which is
partly why treatment with Cymbalta worked so well.
Under the heading prognosis Dr. OConnor wrote the following:
Her pain has been present for a
long time. She has had multiple flares of this pain. A good prognostic factor
is the fact that her pain was almost essentially resolved when she was on Gabapentin
and Cymbalta. For this reason, I think if she was to reactivate herself with
strength and conditioning, and treat herself with Gabapentin again and
potentially a low-dose antidepressant such as nortriptyline or Cymbalta, I
think she would do much better. She should be counseled on this by her
physicians, either Dr. Raghavan or her family doctor, and go on this for the
next two to three years to see if she can get on a stable level. She was
worried about weight gain. Realistically, her weight gain was not, in my
opinion, from either medication but rather from increased depression and lack
of physical activity. It is the physical activity that is going to lead to the
weight reduction and she needs to focus on this.
The explanation given by the plaintiff to Dr. OConnor for stopping her
use of Gabapentin and Cymbalta is found in his report as follows:
She says that at the end of all
this she was told she had fibromyalgia. She was put on Gabapentin and Cymbalta
by Dr. Raghavan. She says that this was wonderful and she had no pain and was
able to function normally, by her report. However, she was doing some reading
on the internet and got worried. She was worried about her liver and she states
that she was worried about weight gain. She stopped taking this medication and
shortly afterwards she had withdrawal symptoms of feeling dizzy, sweaty, and
racing of her heart that lasted for several months. She says she would never
take this medication again. Her mood deteriorated, her pain increased, and her
ability to cope decreased.
The symptoms Dr. OConnor reports at the time of his July 2012
assessment of the plaintiff were: a) Right hand triggering. This is painful
particularly in the fourth digit in the right hand where it gets locked and she
has to pull it open; b) Right knee pain and right leg and hip pain. She has a
burning sensation over the lateral aspect of the right foot; c) Neck pain.
She has pain that seems to start at the base of the neck and radiate up towards
the skull and across the trapezius laterally, somewhat worse on the right; d)
She said her insomnia is quite significant and really effects her ability to
cope; e) Anxiety and low mood. These are prominent features in findings. In
fact when she was on Cymbalta and Gabapentin her symptoms improved dramatically,
arguing that there is a significant anxiety and mood component; f) she gets
cramps in both legs and at times these are quite bothersome for her.
On examination of the plaintiff Dr. OConnor described her as depressed
and very anxious. She had superficial tenderness, prominent pain behaviour, and
multi-level reduction in sensation that did not seem to be in keeping with a
neurological distribution of sensory findings in her right arm, scoring 3/5 on
Waddell Testing. Dr. OConnor described the Waddell Testing as a means of
determining whether the patient is feigning. Dr. OConnor found no signs of
Dr. N.K. Reebye, a physiatrist, saw the plaintiff at the request of the
defendants. He examined her on March 22, 2011, and observed that she presented
with chronic myofascial pain syndrome. In his opinion:
…the most likely injuries
sustained by Ms. Peacock in the two motor vehicle accidents of February 27,
2008 and January 17, 2009 were mild/moderate soft tissue injuries as a result
of acceleration/deceleration type of forces to which her body was subjected in
the motor vehicle accidents
Dr. Reebye went onto say that:
In my opinion, it is more likely
than not that her initial symptoms were a direct result of injuries sustained
in the two motor vehicle accidents. However, her ongoing symptoms over the
years are from non-specific causes, with multiple symptoms in different parts
of her body, with widespread areas of tenderness.
Dr. Reebye observed that pain is subjective in nature and cannot always
be explained with a physical cause.
Dr. Reebye found pre-existing degenerative changes to the plaintiffs
neck, back, hands and feet but:
The injuries sustained in those
two accidents were not of such severity as to affect the progress and the
prognosis of the pre-existing degenerative changes.
Dr. Reebye expressed the opinion that:
…the type of injuries sustained
do not justify the length of time that she has been off work following the two
accidents. A few weeks or a few months off following each of the two motor
vehicle accidents for physically demanding jobs would have been reasonable.
Dr. Reebye went on to:
…agree with the suggestions of
Dr. OConnor regarding exercises and physical conditioning together with
medication like Cymbalta (antidepressant medication) and Gabapentin
(antiseizure medication, also useful for pain management) weight loss,
lifestyle modifications and the exercise program.
Dr. Odubote, a psychiatrist, testified about his medical opinions found
in his letter to the plaintiffs counsel. In May 2007 Dr. Odubote diagnosed a
Major Depressive Disorder of moderate severity precipitated by road traffic
accident. The plaintiff was further assessed by Dr. Odubote on June 7, 2011,
with Dr. Odubote commenting as follows:
I have continued to follow-up Ms. Peacock, she was further
assessed on June 7, 2011. Unfortunately despite some improvement in
concentration, clarity of thinking and sleep, she continued to struggle with
low mood and lack of enjoyment and interest and purpose in life. I increased
Cymbalta (anti-depressant) to 60 mg twice a day and reviewed her again on June
17, 2011. She responded to the increased dose with overall improvement in her
mood, anhedonia, energy and concentration. She subsequently became lost to
follow-up until she reengaged with me on 7th March 2012. She had
discontinued her anti-depressant and presented as objectively depressed and
overwhelmed by limitation (sic) imposed by chronic musculo-skeletal pain as a
result of the motor vehicle accidents. She had run out of Cymbalta as she could
not maintain this medication for financial reasons. Prior to this, she had been
getting the medication on patient assistance program by Lilly Pharmaceutical
She was reviewed for follow-up on
24th April 2012 with persistent difficulty with concentration,
attention, fatigue and inability to cope with chronic pain. Ms. Peacock was
reviewed again on 9th May 2012; she appeared coping reasonably with
depressive symptoms and chronic aches and pains. She expressed anxiety about
chronic use of Cymbalta and had stopped using it for fear of addiction. She
continued to report problems with attention, concentration and depressed mood.
She was reassured about the safety of anti-depressant medication and I educated
her on the need for compliance in order to benefit meaningfully from both
anti-depressant and analgesic effect of Cymbalta.
Dr. Odubote expressed the view that the plaintiff may be suffering from
a head injury. He commented on the plaintiffs report to him of a loss of
consciousness from the first accident and made the following remark:
I am of the opinion that motor
vehicle accident and injuries suffered by Ms. Peacock continue to
interfere with her ability to work as a result of depression and musculo-skeletal
aches and pain. I am not certain regarding her prognosis as this would depend
on whether she is contending exclusively with Major Depressive Disorder or in
conjunction with Head Injury which would make her prognosis precarious and long
term capability for work challenging.
A functional capacity evaluation of the plaintiff was conducted by
Mr. Andrew Hosking. He concluded that the plaintiff could not meet the
physical demands of her job as the sole operator of a seasonal resort. I accept
that conclusion as correct.
There can be little doubt that the combination of the effects of the two
accidents, imposed on a vulnerable plaintiff, have been serious. The medical
evidence supports that view, as does the evidence of two lay witnesses who
described the plaintiff as energetic, hardworking and cheerful before the
accidents, but thereafter suffering from both physical difficulties and low
mood. Before the accidents she is described as being fun to be with, but after
the accidents she markedly changed. The psychiatric evidence of Dr. Odubote and
of Dr. Tomita, who provided a report to the defendants counsel, both describe
a major depressive disorder. I am satisfied the physical symptoms reported by
the plaintiff as well as the depressive disorder were caused by the accidents.
Nevertheless there is a serious question to be considered about the plaintiffs
refusal to carry on with the use of Gabapentin and Cymbalta. I will return to
this question after reviewing the plaintiffs claim for pecuniary and
Past Wage Loss
Unsigned income tax returns of the plaintiff were introduced into
evidence showing income for 2005 through 2010 as follows:
In 2011 the plaintiffs unsigned income tax return reports a loss of
$5,958.81 and in 2012 that loss increased to over $10,000.
The plaintiff acknowledges she is a poor bookkeeper. I find it difficult
to rely on the figures she has provided for her income. She estimated her
resort business had enjoyed revenue of $3,000 to $5,000 in each of its peak
months. That is an estimate which obviously has fairly wide parameters and
suggests a high level of uncertainty about the actual income of the business.
It is apparent the plaintiffs business was fragile even before the accident
which occurred at the end of February 2008. Thereafter the decline in the net
income of the business was precipitous. There are perhaps a number of
explanations for this decline, including economic circumstances generally in
the province, and difficulties the plaintiff experienced with Tourism B.C., but
I am satisfied that a major factor was the difficulties the plaintiff found in
performing the physical work from which she was increasingly disabled, and her
need to hire others to assist which reduced the net income of the business.
The cost to her of hiring others to assist with the business is shown on
tax returns as $7,500 in 2008 to over $16,000 in 2012. Again I have little
confidence in the accuracy of these numbers but nonetheless I accept that she
spent considerable sums of money in hiring other people to help her manage the
business following the accidents.
A calculation of past income loss to the date of trial was provided by
Mr. Darren Benning in the sum of $81,997 net of tax. Given the plaintiffs
modest net income from her business the incidence of tax would have been
minimal. If Mr. Bennings calculation is correct, the average net income
of the plaintiff would have been approximately $16,000 per annum from 2008
until the date of the trial if the accidents had not happened. I cannot accept
that number as accurate. I believe the plaintiffs ability to sustain her
income was declining before the first accident in February 2008. I conclude
that her income would have averaged about $10,000 per annum if the accidents
had not happened.
Over the five years from the date of the first accident until the date
of trial, I conclude the plaintiff would have earned $50,000. From that sum
must be deducted the sum of about $15,000 which she earned in aggregate in the
years 2008, 2009 and 2010. That leaves a balance of $35,000.
Cost of Replacement Workers
The money the plaintiff spent to obtain help from others to sustain the
resort business must be considered. This expenditure may be characterized as an
attempt to mitigate the loss of income for which the plaintiff should be
compensated or perhaps as part of the plaintiffs special damage claim. A
difficulty I have with these expenditures is that they became disproportionate
to any possible benefit to the plaintiff. To spend about $15,000 on hired help
in 2011 alone to sustain a business that had revenue of about that same amount
was a doubtful business proposition. Nevertheless, the plaintiff was hoping to
preserve her business, which was not only her main source of livelihood, but
also a business which provided her with a home in which to live, numerous
opportunities to meet people whose company she enjoyed and the physical
activities which were her chief source of pleasure. I award $15,000 for the
cost of replacement workers.
Loss of Earning Capacity
The plaintiff seeks damages for loss of earning capacity. I accept the
accidents diminished her ability to manage her resort business and it is
doubtful that at her present age, and with a limited formal education, she will
find other employment to replace the modest income from her resort and casual
Mr. Benning provided actuarial and economic future income loss
multipliers to be applied against each $1,000 of annual loss of income. The
actuarial multiplier takes into account only the likelihood of survival of the
plaintiff until retirement age. The economic multiplier takes into account the
plaintiffs survival and also takes into account labour market contingencies. It
is the latter multiplier which is appropriate.
Mr. Benning estimated future income loss for the plaintiff to retirement
age of either 65 or 70 years. I believe that even if the accidents had not
happened, it would have been unlikely for the plaintiff to have worked till age
70. Even age 65 is doubtful given the plaintiffs pre-existing health
Mr. Bennings calculations of future income loss rest on an assumption
that the net income of the plaintiffs resort which would have been available
to the plaintiff would have been $20,000 per annum but for the accidents. I do
not believe that would have been likely.
I accept that there is a real and substantial possibility that the
plaintiff will lose income in the future as a result of the two accidents. I do
not accept that she has no residual earning capacity. I assess the present
value of the loss of earning capacity of the plaintiff at $90,000.
The plaintiffs claim for special damages is $32,811.11. A great deal is
for passive therapies such as chiropractic and massage therapy. I accept the
defendants submission that they are excessive. I award $15,000.
Cost of Future Care
The plaintiff seeks damages for the cost of care in the future. The
plaintiff has not recovered from her injuries but I believe she does not suffer
from permanent disabilities. There is no basis for a substantial award of
damages for the cost of future care which, doing what I can with the limited
evidence available, I assess at the sum of $25,000.
The plaintiff claims $100,000 in non-pecuniary damages. That head of
damages is meant to compensate a plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. Their assessment depends on the
plaintiffs age, her injuries, including their severity and duration, and any
disabilities they have caused, and as well any interference with lifes
pleasures including the pleasure of working.
The plaintiff referred to a number of authorities to assist with my
assessment of non-pecuniary general damages. As expected they are within the
range that the plaintiff proposes. The first was MacKenzie v. Rogalasky,
2011 BCSC 54. In that case the plaintiff was about 35 years old at the time of
his injury. The trial took place seven years later and in that time he had
developed a chronic pain syndrome leading to a permanent partial disability.
His non-pecuniary general damages were assessed at $100,000. In my view, the
plaintiff in that case had more serious injuries than Ms. Peacock.
In Kasidoulis v. Russo, 2010 BCSC 978, the plaintiff experienced
an injury in 2005 when she was in her early 30s. She was pregnant at the time
of the accident. The injuries were mainly to her neck, shoulders and back. She
found the pain quite disabling and it made it impossible for her to work, do
any household tasks or care for her child. In 2008 the plaintiff had another
child and during that pregnancy her pain was exacerbated. By the time of the
trial the plaintiff was diagnosed with a chronic pain disorder. The trial judge
found the plaintiff continued to suffer from debilitating mid and low back pain
which had led to a significant degradation of her quality of life.
The trial judge in Kasidoulis referred to Poirier v. Aubrey,
2010 BCCA 266. In that case non-pecuniary damages had been assessed at $60,000
at trial on the basis of a favourable prognosis. The Court of Appeal found the
evidence did not support a favourable prognosis and held the plaintiff was
likely to experience permanent injuries and have ongoing debilitating pain.
The Court of Appeal increased the non-pecuniary damages award to $100,000. The
trial judge in Kasidoulis assessed non-pecuniary damages at $90,000. I
am not satisfied that either of those cases accurately represents the circumstances
of Ms. Peacock.
The defendants rely on the oft-cited case of Price v. Kostryba,  70 B.C.L.R.
397. Recently in Prince v. Quinn, 2013 BCSC 716, Williams J. wrote the
as a matter of course in cases of this type, the court is referred to an
excerpt from the judgment of McEachern C.J.S.C. (as he then was) in Price v.
Kostryba,  B.C.J. No. 1518. That was a case where his Lordship
found that there was little or no objective evidence of continuing injury and
there were inconsistencies in the testimony of the plaintiff.
McEachern C.J.S.C. made reference to an earlier decision, Butler v. Blaylock,
 B.C.J. No. 31, where he stated as follows:
I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be
fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.
 It is to
be noted that, subsequent to the trial decision in Price v. Kostryba,
the trial judgment in Butler v. Blaylock, to which reference had been
made, was successfully appealed ( B.C.J. No. 1490); the non-pecuniary
award was increased from $7,500 to $15,000. In its per curiam judgment,
the court said this at para. 13:
… the plaintiff testified that he
continued to suffer pain. His wife corroborated this evidence. The learned
trial judge accepted this evidence but held that there was no objective
evidence of continuing injury. It is not the law that if a plaintiff cannot
show objective evidence of continuing injury that he cannot recover. If the
pain suffered by the plaintiff is real and continuing and resulted from the
injuries suffered in the accident, the plaintiff is entitled to recover
 In a
related vein, almost without exception, the cross-examination of plaintiffs
medical experts focuses on the very significant difference between subjective
and objective indicators. The tenor of such cross-examinations generally
suggests that where meaningful findings are principally based upon subjective
evidence – the self-reports of the plaintiff – the evidence should be afforded
much diminished weight.
propositions are understood.
respect, as regards this latter point, it seems to me that this is an approach
that must be considered with care. Taken to its ultimate conclusion, it would,
in many cases, quite unfairly put a plaintiff in a position where proving a
claim would be exceedingly difficult and verging on impossible.
In my view, the point to be observed is this: where a plaintiffs claim is
founded quite substantially on self-reported evidence, it is necessary for the
trier of fact to scrutinize the plaintiffs evidence carefully and evaluate it
in the light of other evidence, such as the circumstances of the collision,
other relevant information concerning the plaintiffs activities and statements
made by the plaintiff on other occasions. However, where the evidence of
physical injury is substantially based on subjective evidence – the testimony
of the plaintiff – that should not constitute an effective barrier to proof of
Those observations apply with equal force to the case before me.
Nevertheless I agree the plaintiff has a tendency to overdramatize the two
accidents and their affects on her. Her reference to losing consciousness after
the first accident is probably incorrect. Her description of the second
accident as forceful cannot be accurate when she acknowledged in
cross-examination that the damage to her vehicle did not require any repair.
The plaintiff was also less than forthright in her evidence about the dispute
with Tourism B.C. which led to litigation. In my view the dispute probably had at
least some adverse impact on the income of her business. Furthermore, the
plaintiff was unwilling to acknowledge the serious decline in the revenue of
her business even in the years before the first accident.
The defendants submit that non-pecuniary general damages ought to be no
more than $25,000.
The defendants rely on Loik v. Hannah, 2009 BCSC 1196. The
plaintiff in that case was 46 years old at the time of trial. She had been an
active athlete. Three years after the accident she had not fully recovered
but the trial judge could not determine if the injuries were permanent. Her
complaints were consistent with soft tissue injuries. Non-pecuniary general
damages were assessed at $25,000.
In Robinson v. Anderson, 2009 BCSC 1450, the plaintiff was 47
years old at the time of the trial. She complained of neck, back, shoulder,
right leg and knee pain. There was no proof of permanent or long term injury.
Again, non-pecuniary damages were assessed at $25,000.
The defendants also referred to Ryan v. Klakowich, 2011 BCSC 835.
The trial judge was satisfied the plaintiff had exaggerated her injuries. The
symptoms of neck, shoulder, back pain and headaches linger to the date of
trial. Once more, non-pecuniary damages were assessed at $25,000.
I am persuaded the injuries suffered by Ms. Peacock have had a more
serious impact on her life and her capacity to enjoy it than the injuries of
the plaintiffs in the case cited by the defendants. The plaintiff has
experienced considerable physical pain and disability, particularly since the
second accident. I am also persuaded that although the plaintiff had recovered
to a considerable extent from the first accident when the second occurred, she
had not entirely recovered when the second accident aggravated the injuries
from the first, and together they led to a significant depressive disorder.
I assess the plaintiffs non-pecuniary damages at $75,000. I do so in
part because I accept that a program of exercise can assist the plaintiff to
overcome some of her present physical limitations, which will no doubt have a
general beneficial effect on her health. I also conclude that with appropriate
adherence to medical advice, the depression and low mood can be overcome.
As I have mentioned earlier in these reasons, there is a serious issue
concerning mitigation of loss. The plaintiffs difficulties stem from physical
injuries but they also stem from her depressive disorder and I conclude the two
are closely intertwined. Fortunately her experience since the accidents has
been that her depression can be successfully managed with medication. In
particular, she has had success with a combination of Cymbalta and Gabapentin.
Despite that success, the plaintiff became fearful of these medications apparently
because of what she learned from the internet. She ceased using the prescribed
medications with undesirable effects. She did so against medical advice.
The plaintiff, like all who find themselves in a position similar to
hers, cannot refuse to comply with reasonable medical advice and then seek to
visit the unhappy consequences of that refusal on a defendant tortfeasor. A
plaintiff has an obligation to take reasonable steps to avoid losses that can
be avoided. While the plaintiff has that duty, it is for the defendant to prove
it has been breached. The burden on a plaintiff is not a heavy one particularly
because it is a tortfeasor who caused the injury, and correspondingly the
obligation on a defendant who asserts there has been a failure to mitigate is a
substantial one. The plaintiff submits the obligation to mitigate is not
significant when the award of damages is modest. I do not agree. The obligation
exists in all injury cases.
The plaintiff had considerable successful in confronting her depression when
she took the prescribed medications. This is not a case in which the medical
advice was that a form of therapy would have been likely to prove fruitful if
it had been employed. This is a case in which the recommended medication was
initially taken with success and then abandoned for no good reason. In this
case the plaintiff unwisely ignored medical advice without any reasonable basis
for doing so.
In Antoniali v. Massey, 2008 BCSC 1085, Preston J. discussed
the implications of the failure to mitigate in the following words:
The evidence of Dr. Stewart and Dr. Leung satisfies me that there is a
substantial likelihood that the effects of Ms. Antonialis injuries stemming
from the November 2003 collision would have been lessened had she followed the
recommended program of stretching and strengthening exercises. The
effects may have been eliminated entirely after a period of adherence to such a
program. To the extent that continuing effects of the injuries from the
November 2003 collision could have been lessened or eliminated entirely, the
defendant should not have to bear the consequences of their continuation.
I am not persuaded the effects of the plaintiffs injuries from both
accidents could have been eliminated entirely if she had adhered to reasonable
medical advice, but I am persuaded she would have experienced very substantial
benefit if she had followed appropriate advice. The overall award will be
reduced by 20%.
In summary, the plaintiffs damages are assessed as follows:
Past Wage Loss
Cost of Replacement Workers
Loss of Future Earning Capacity
Cost of Future Care
The damage award will be reduced by 20% for a failure to mitigate.
I find that the injuries sustained by the plaintiff in the two accidents
are indivisible, therefore I need not consider an apportionment of damages
between the defendants: see Bradley v. Groves, 2010 BCCA 361 at para.
The plaintiff is entitled to her costs at Scale B, unless there are any
pertinent circumstances that should be brought to the courts attention.