IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141201

Docket: M103585

Registry:
Vancouver

Between:

Saeid Mohammadi,
Tamin Hosseinzadeh

Plaintiffs

And

Wendy Pik Mei
Leung

Defendant

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Overview

[1]            
The plaintiff, Tamin Hosseinzadeh, seeks damages for injuries sustained
in a car accident that occurred on April 11, 2009. She was a front seat
passenger in a Toyota driven by her husband. They were travelling south on
Boundary Road. They entered the intersection at Kingsway on a green light and
were struck by a left turning vehicle driven by the defendant. The defendant
admits liability for the accident.

[2]            
One of the central issues is whether the accident caused Ms. Hosseinzadeh
to develop fibromyalgia, with associated emotional and psychological
difficulties. Encompassed within that issue is the question of whether her
fibromyalgia was caused by her pre-existing hypothyroidism and/or type II
diabetes. The other central issue relates to Ms. Hosseinzadeh’s claim for diminished
income earning capacity and, in particular, the effect on that claim of her
failure to try to return to some form of employment.

[3]            
Ms. Hosseinzadeh claims the accident caused the following injuries:

(a)      scratches
on her face and bruising on her chest, groin, and legs;

(b)      soft
tissue injuries resulting in chronic mechanical pain in her neck and lower
back;

(c)      fibromyalgia;

(d)      a
posterior disc protrusion and extrusion in her lower back at L4/5;

(e)      impaired
sleep; and

(f)       psychological
symptoms including lowered mood and depression.

She testified that, but for the scratches and bruising,
these injuries continue to significantly impede her enjoyment of life. She
seeks non-pecuniary damages in the range of $100,000 to $125,000.

[4]            
Ms. Hosseinzadeh has not worked at all since the accident in April
2009. She relied on an expert report prepared by Christiane Clark, an economist
with Associated Economic Consultants Ltd., which projected her employment
income for 2009 at $22,736, based on her actual earnings for the first few
months of 2009. Ms. Hosseinzadeh submits that she would have continued to
earn approximately $22,736 per year for the five years between the accident and
the trial. She asserts a claim for pretrial loss of income of $113,680, less an
amount to reflect income tax.

[5]            
Ms. Hosseinzadeh also relied on Ms. Clark’s report in support
of her claim for future loss of income earning capacity valued at between
$211,609 and $351,510, on the basis that she will be unable to work at all in
the future. The lower of the two amounts is Ms. Clark’s assessment of the
present value of Ms. Hosseinzadeh’s potential earnings from the time of
trial to age 65 discounted for both risk and choice contingencies, plus 5% to
reflect the value of non-wage benefits. Ms. Clark’s report identifies risk
contingencies as including illness and poor economic conditions whereas choice
contingencies reflect personal choices to be out of the labour market or work
part time. The higher of the two amounts is Ms. Clark’s assessment of the
present value of Ms. Hosseinzadeh’s earnings from the time of trial to age
65 discounted for risk contingencies only, again plus 5% to reflect the value
of non-wage benefits.

[6]            
Ms. Hosseinzadeh also seeks compensation of $59,217 for the future
cost of physiotherapy and massage therapy for life, and between $40,000 and
$50,000 for loss of homemaking capacity. Special damages of $3,182.50 have been
agreed between the parties.

[7]            
The defendant called no evidence. Counsel for the defendant acknowledged
that Ms. Hosseinzadeh suffered injuries in the accident but submitted that
she has failed to establish that the accident caused fibromyalgia. Counsel for
the defendant also submitted that Ms. Hosseinzadeh could have returned to
a sedentary job within two years after the accident. Counsel for the defendant
says she failed to mitigate by failing to even try to find a sedentary job and,
as a result, her loss of income earning capacity claim should be limited to the
two years after the accident. Further, counsel for the defendant says the
expert evidence regarding Ms. Hosseinzadeh’s loss of future income earning
capacity failed to factor in the risks associated with her pre-existing medical
history, particularly her history of diabetes.

Background

[8]            
Ms. Hosseinzadeh was 43 years old at the time of the accident and
almost 47 years old at the time of the trial. She was born in Iran and has
lived in the Vancouver area since 2001 with her husband, Saeid Mohammadi, and
their teenaged son, Soroush Mohammadi.

[9]            
Ms. Hosseinzadeh is trained as a calligrapher and artist. While in
Iran, she worked as a calligrapher and art teacher. After moving to Canada, she
initially worked as a cleaner and in a bakery. By early 2007, she was working
full time at a bakery in West Vancouver. She took a leave to spend four months
in Iran. Upon her return she worked part time in a daycare and took at course
offered by Capilano College. Then, in November 2007, she started working full
time at Future Scholars Daycare.

[10]        
While working at Future Scholars Daycare, Ms. Hosseinzadeh looked
after children up to three years of age. She had primary responsibility for
four children at a time. She had to lift the children to do diaper changes
approximately three times per day, per child. She also had to lift the children
in and out of the stroller that was used to take them for outings.

[11]        
Prior to the accident, Ms. Hosseinzadeh was diagnosed with type II
diabetes and hypothyroidism. She takes medication for these conditions and was
exercising and had modified her diet in an effort to control these conditions.
On occasion she has experienced symptoms such as listlessness, dry mouth,
dizziness, and shakiness as a result of failing to properly regulate her blood
sugar level. However, she maintained that these conditions did not interfere in
any material way in the enjoyment of her life or her ability to work.

[12]        
At the time of the accident Ms. Hosseinzadeh was working full time
at Future Scholars Daycare and living with her husband and son in an apartment
in North Vancouver. She was a happy and active person whose social life
centered on entertaining her friends, which she did on a regular basis. She was
a very good cook and a generous hostess and enjoyed shopping and creating meals
for her friends and family. She was responsible for all the housework, grocery
shopping, and cooking for her family.

[13]        
 As already noted, the accident occurred on April 11, 2009 at the
intersection of Boundary Road and Kingsway. The impact was significant. Ms. Hosseinzadeh’s
airbag deployed. Her glasses broke as a result of impact with the airbag and she
briefly lost consciousness. The Toyota was ultimately declared a total loss.

[14]        
Ms. Hosseinzadeh, her husband and her son were taken to Vancouver
General Hospital by ambulance. Ms. Hosseinzadeh remained in the hospital
overnight and was discharged in the afternoon on the following day. Ms. Hosseinzadeh
testified that when she was discharged from the hospital she was suffering from
severe inflammation and swelling on the right side of her face; her stomach and
breast areas were bruised; she had a lot of pain in her neck, shoulders, and
back; and she had a severe headache.

[15]        
A cervical collar was placed on Ms. Hosseinzadeh’s neck while at
the hospital, and she wore it for about seven weeks after the accident, which
caused bruising and redness on her neck.

[16]        
A few days after the accident, Ms. Hosseinzadeh commenced seeing
her family doctor, Dr. Beheshti, for the injuries she suffered in the
accident. But for medical appointments, most of her time during the first seven
weeks following the accident was spent at home, sitting or reclining on the
couch. She testified that she could not sleep in her bed as she could not lie
down with the collar on, so she reclined on the couch to sleep. She was
suffering severe back pain reaching into her legs, her shoulders ached, and she
suffered from headaches. She was not able to walk on her own. She could not do
any housework and a neighbour and some friends helped out with the housework
and cooking. Ms. Hosseinzadeh’s husband, who had also been injured in the
accident, stayed home for a period of time and helped look after her.

[17]        
About two months after the accident, ICBC retained an occupational therapist
to assist Ms. Hosseinzadeh. The occupational therapist arranged for
homemaking assistance twice a week to help with shopping, cooking, housework,
and laundry. She also provided Ms. Hosseinzadeh with equipment to assist
her in the shower, while bathing, and getting in and out of bed. Ms. Hosseinzadeh
testified that she used a shower chair for about four years, giving it up only
about a year before the trial, and that she used a bed railing to help her get
in and out of bed until about a year before the trial. The occupational
therapist also provided Ms. Hosseinzadeh with a walker which she used for
a year following the accident.

[18]        
In June 2009, approximately two months after the accident, Ms. Hosseinzadeh
began physiotherapy sessions with Maryam Jabbary, but she said it did not help
much at first. She said she was in severe pain and could not lie on her back or
her stomach, so Ms. Jabbary treated her while she lay on her side.
However, she continued to see Ms. Jabbary and did eventually make some
progress. Ms. Jabbary helped Ms. Hosseinzadeh with her gait, which
helped her to walk without the walker.

[19]        
Ms. Hosseinzadeh also went through a course of chiropractic
treatments and a rehabilitation program through Karp Rehabilitation but she
said neither resulted in any marked improvement in her condition.

[20]        
About four or five months after the accident, Ms. Hosseinzadeh
started exercising a few times a week in the pool. Before the accident she had
been swimming regularly. Since the accident, she does not actually swim, but
she does exercises in the pool.

[21]        
About a year after the accident, Dr. Beheshti referred Ms. Hosseinzadeh
to Dr. Javidan, a neurologist. Dr. Javidan recommended that she
continue to exercise as much as possible and that she try to lose weight. Ms. Hosseinzadeh
said since then she has lost 33 pounds, but this has not helped with her pain.
Eventually, in November 2011, Dr. Javidan concluded that her complaints
were consistent with fibromyalgia.

[22]        
In April 2011, about two years after the accident, Ms. Hosseinzadeh
was referred to Mountainview Kinesiology for a rehabilitation program with a
kinesiologist. Records from Mountainview indicate that at the initial
assessment, Ms. Hosseinzadeh reported sharp pain in her lower back
radiating down both of her legs as well as dull aching pain in her neck and
shoulder areas. Ms. Hosseinzadeh worked with Mountainview until early 2012
and then again in the summer of 2012. Her activities included walking on a
treadmill, stretches, and strengthening exercises. She said she experienced
some improvement in her symptoms, particularly in late 2011. However, her
evidence as a whole made clear that her pain levels fluctuated, and continue to
fluctuate, and that she was and is never pain free.

[23]        
In February 2012, Ms. Hosseinzadeh was referred to Dr. Heather
Day, a rheumatologist, who she saw for the first time in June 2012. Dr. Day
ultimately diagnosed her with fibromyalgia.

[24]        
Ms. Hosseinzadeh testified that, but for the scratches and
bruising, her injuries continue to significantly impede her ability to work and
enjoy life. She said that her condition had not improved in the year and a half
prior to the trial. She continues to have good days and bad days and lives with
constant, though fluctuating, pain. When having a good day, she has less pain
and can manage to exercise, go for walks, slowly do housework, and cook for her
family. However, on bad days she can do little more than lie down. She relayed
one specific incident that occurred about three weeks before trial. She
testified that her back seized up when she bent over to plug in her tablet. No
one else was home. She managed to get to the phone and called her husband who
came home and eventually helped her get to the doctor. After returning home
from the doctor she lay down, where she stayed for several days, unable to do
more than crawl on her hands and knees to the bathroom. She eventually
contacted Ms. Jabbary, who came to her home and provided her with a
physiotherapy treatment. She said this particular episode of debilitating pain
lasted about 10 days. She testified that she experiences pain at this level
periodically, about once a month, with each episode lasting between two and 10
days.

[25]        
Ms. Hosseinzadeh relies on daily massages from her teenaged son.
She tries to clean her home but she is much slower. She cannot climb the stairs
to her apartment without help, and cannot do the laundry or shopping without
assistance. She no longer entertains friends.

[26]        
Ms. Hosseinzadeh has not tried to go back to work at Future
Scholars Daycare. She has made no efforts to find a more sedentary job. She
acknowledged that Dr. Javidan told her she could try working in a
different job, but she maintained that she is unable to work at all due to the
severity of her pain. She said there are days when she cannot do her housework
and cannot even put on her own clothing. She says that in the circumstances,
she does not consider it possible for her to work.

[27]        
Ms. Hosseinzadeh continues to take pain medication. She said she
takes Tylenol 3s when her pain is bad, as many as three in a day. She takes
Advil about twice a week. She takes gabapentin once a day and cyclobenzaprine
twice a day. She used to take Cymbalta to improve her sleep, as prescribed by Dr. Day,
but found it was not helpful so she stopped taking it.

[28]        
Ms. Hosseinzadeh’s evidence about her pre-accident lifestyle and
the impact her injuries have had on her life was corroborated by her husband
and her son. Her husband testified that he now does laundry, washes dishes and
does all the grocery shopping. He said that he has to help Ms. Hosseinzadeh
with her personal care, often helping her get into the bathtub and put on her
bra. Ms. Hosseinzadeh’s son testified that he now helps with the laundry,
sets the table and clears the dishes. He also has to help his mother up and
down the stairs to their apartment. He massages his mother twice a day using
techniques he researched on YouTube and learned while job shadowing with a
chiropractor. He wakes up in the middle of the night to check on her, often
finding her lying on the ground or sitting on the couch.

[29]        
Ms. Hosseinzadeh’s friends, Mehernosh Yazdanyar and Ali Ghaffari,
who are married to each other, also corroborated her evidence regarding the
impact the injuries have had on her social life. They testified that prior to
the accident they socialized with Ms. Hosseinzadeh every week or every
second week and that Ms. Hosseinzadeh often hosted these events. When she
hosted, she would cook meals and would not let anyone help her. They testified
that she no longer hosts parties and no longer cooks for her friends. They
still occasionally visit her at her home, but now it is only for tea which is
prepared by Ms. Hosseinzadeh’s husband or son.

The Medical Evidence

[30]        
Ms. Hosseinzadeh led a significant amount of expert medical evidence
that supports her claim that she continues to suffer very significantly from
injuries caused by the car accident, that her condition is chronic and unlikely
to improve, and that it has left her permanently partially disabled and unable
to work at her pre-accident occupation in a daycare. As already noted, the
defence called no evidence.

Dr. Beheshti

[31]        
Dr. Beheshti is Ms. Hosseinzadeh’s family doctor and has been
treating her since 2001.

[32]        
She saw Ms. Hosseinzadeh on April 14, 2009, three days after the
accident. At that time, Ms. Hosseinzadeh was wearing a cervical collar,
which had been given to her at the hospital after the accident. Dr. Beheshti
observed scratches on Ms. Hosseinzadeh’s face and bruises on the right
side of her chest, groin, and legs. She noted that Ms. Hosseinzadeh
complained of headaches and pain in the shoulders and numbness in her hands.

[33]        
Ms. Hosseinzadeh next saw Dr. Beheshti the following day,
April 15, 2009. At that time Dr. Beheshti observed that Ms. Hosseinzadeh’s
neck was red and irritated from the collar and that her breast, sternum and
right hip were bruised. Ms. Hosseinzadeh complained that day of earache,
low back and leg pain, and poor sleep.

[34]        
Ms. Hosseinzadeh saw Dr. Beheshti on multiple follow-up
visits, noting similar complaints and symptoms. Dr. Beheshti eventually
referred her to Dr. Javidan, a neurologist, who saw her for the first time
on April 9, 2010, and to Dr. Day, a rheumatologist, who saw her for the
first time on June 6, 2012.

[35]        
Dr. Beheshti did not express an opinion as to the cause of Ms. Hosseinzadeh’s
symptoms. She said she deferred to the specialists in that regard. She did recommend
that Ms. Hosseinzadeh continue to exercise and continue with
physiotherapy.

Dr. Javidan

[36]        
Dr. Javidan is a neurologist in the Division of Neurology,
Department of Medicine at the University of British Columbia, and is on the
staff at Vancouver General Hospital.

[37]        
Dr. Javidan saw Ms. Hosseinzadeh on four occasions: April 9,
2010, September 3, 2010, April 1, 2011 and November 4, 2011. On each occasion
he conducted an examination during which she reported continuing pain. He noted
that at the November 4, 2011 visit she complained of generalized muscle ache
and pain and that he found multiple tender points. His report states that this
was “consistent with fibromyalgia”.

[38]        
In addition to his own assessment, Dr. Javidan reviewed the
assessments of several practitioners including Dr. Beheshti and Dr. Day,
trauma services at Vancouver General Hospital, pain specialists,
physiotherapists, and the Mountainview Kinesiology Program.

[39]        
Dr. Javidan concluded that Ms. Hosseinzadeh “suffered a
moderately severe mechanical injury of the neck and back, with radicular
symptoms related to disc disease”. He noted that she could have had
degenerative disc disease before the accident, but that she claimed not to have
experienced symptoms until after the accident. On that basis he expressed the
opinion that the accident “likely caused acute mechanical injuries superimposed
on some degenerative disc problems which were asymptomatic until after the
accident occurred”. He noted that the CT scans of the plaintiff’s head, chest,
thoracic spine, abdomen and pelvis taken immediately after the accident were
“unremarkable for acute injuries”. However, he also noted that the CT scan of
her lumbar spine indicated disc space narrowing at L3/4 and a posterior disc
protrusion and possible extrusion with mild to moderate canal stenosis at L4/5.
In cross-examination he said that in his opinion it was more likely than not
that the disc protrusion was caused by the accident.

[40]        
Dr. Javidan also expressed the view that Ms. Hosseinzadeh subsequently
developed “chronic pain syndrome and fibromyalgia as well as depressive
symptoms which rendered her disabled and unable to resume work”. He said that
full recovery of the symptoms is not likely, although she could have some
degree of improvement.

[41]        
Finally, he stated:

It is my opinion that Ms. Hosseinzadeh
has become disabled to go back to her job as a childcare provider and at least
partially disabled for doing any job that requires physical activity and this
includes activities of daily living. Her full recovery is unlikely and she will
be likely left with partial disability.  She may have limited benefit from
further medical treatments.

[42]        
On cross-examination, Dr. Javidan agreed that Ms. Hosseinzadeh
may be able to work at a job that does not involve bending, lifting, pushing or
pulling. He said she could try such a job and that it would not be dangerous or
risky for her to try. In re-examination, he said that he would leave it to an
occupational therapist to determine what Ms. Hosseinzadeh is capable of
doing and agreed that there could be an aggravation of her symptoms if she
pushed herself too hard.

Dr. Day

[43]        
Dr. Day is a rheumatologist and has practiced in that specialty for
16 years. Without objection, she was qualified as an expert in the diagnosis
and treatment of autoimmune disorders and fibromyalgia.

[44]        
Ms. Hosseinzadeh was referred to Dr. Day by Dr. Beheshti
in February 2012. She was seen by Dr. Day for the first time on June 6,
2012 and then had four more consultations with Dr. Day, the most recent
being in September 2013.

[45]        
At the first visit with Dr. Day, Ms. Hosseinzadeh reported
ongoing pain in the base of her neck, very poor sleep, decreased energy,
inability to return to her previous work, and widespread discomfort in the
muscles of her upper and lower extremities as well as back and chest. She told Dr. Day
that prior to the accident she did not experience pain in the base of her neck,
widespread soft tissue pain, poor sleep, or decreased energy. On examination, Dr. Day
noted 18 out of 18 areas that were significantly tender with light palpation,
consistent with a diagnosis of fibromyalgia. Laboratory tests were negative for
markers of rheumatologic diseases. Dr. Day prescribed Cymbalta, an
antidepressant she said is helpful in treating fibromyalgia

[46]        
Dr. Day saw Ms. Hosseinzadeh again on October 22, 2012,
January 14, 2013, July 22, 2013 and September 23, 2013. Dr. Day noted that
her condition did not improve over these visits. To the contrary, Dr. Day’s
impression was that Ms. Hosseinzadeh’s condition had worsened.

[47]        
Dr. Day’s opinion was expressed as follows in her report:

It is my opinion that the MVA led to the development of
severe fibromyalgia and sleep disorder. From her history and deterioration in
the Health Assessment Questionnaires it is evident that severe fibromyalgia has
had a negative impact (disability) on her physical functioning, social
activities, emotional well-being, sleep, and ability to participate in the
workforce.

If a patient has had fibromyalgia for greater than 2 years
duration, it is likely to be a lifelong chronic condition. In some patients it
stabilizes and in others is slowly progressive. As this patient has had her
symptoms for more than 3 years and continues to worsen despite optimal therapy
is very unlikely that she will return to the workforce in any capacity. I also
think that many of the difficulties Ms. Hosseinzadeh experiences with
respect to activities of daily living, low mood, low energy and poor sleep are
likely to continue indefinitely.

She may derive benefit from
future treatments such as: Regular fitness/gym pass, physiotherapy, massage
therapy, restorative yoga, newer modalities such as prolotherapy and low
intensity light laser to painful soft tissues. I believe she requires further
medical assessment and treatment regarding her low mood and worsening sleep
disorder.

[48]        
At trial, Dr. Day was frank about the fact that the causes of fibromyalgia
are not definitively known. However, she also said that the medical literature
indicates it can be triggered by trauma, including motor vehicle accidents. Dr. Day
said that based on Ms. Hosseinzadeh’s self-report, she was functioning well
prior to the accident, but after the accident she had a number of painful areas
and then developed pain everywhere throughout her body. This caused Dr. Day
to conclude that the accident was the trigger for Ms. Hosseinzadeh’s
fibromyalgia. Dr. Day also expressed the view that it is typical for an
injury to lead to sleep disruption which then leads to fibromyalgia.

[49]        
Dr. Day conceded in cross-examination that she has no way of
verifying the symptoms reported to her by Ms. Hosseinzadeh (including pain
and poor sleep), although she did say that in patients with fibromyalgia there
is a quality of tightness to the muscles, and she noted this condition to be
present on examination of Ms. Hosseinzadeh.

[50]        
In cross-examination, Dr. Day did not agree that fibromyalgia is a
controversial diagnosis. In her view the diagnosis is no longer controversial,
although she acknowledged that there some controversy over the causes of it.
She also agreed there is no anatomical explanation for the condition.

[51]        
Dr. Day denied a correlation between diabetes (whether controlled
or not) and fibromyalgia. She also testified that based on her experience, she
ruled out thyroid disease as a cause of Ms. Hosseinzadeh’s fibromyalgia.

[52]        
At trial, Dr. Day testified, firmly, that it is her view that Ms. Hosseinzadeh
is permanently disabled from all forms of work. She said that Ms. Hosseinzadeh
cannot consistently complete basic daily activities such as dressing herself,
and in these circumstances the stress of trying to work would worsen her
condition.

[53]        
At trial, Dr. Day recommended that Ms. Hosseinzadeh have 
monthly physiotherapy for the rest of her life and continuing massage therapy,
as frequently as weekly, during times of flare-ups. She also said that Ms. Hosseinzadeh
should continue to exercise regularly.

Dr. Adrian

[54]        
Dr. Mark Adrian is a physical medicine and rehabilitation
specialist. He has further fellowship training in the subspecialty of spine,
musculoskeletal, and sports medicine, and has received certification in the
subspecialty of pain medicine. He is on the staff of the Department of
Orthopedics, Division of Spine, at Vancouver General Hospital and is a member
of the Department of Physical Medicine and Rehabilitation at UBC. His clinical
practice is focused on the assessment and management of spine, musculoskeletal,
and musculoskeletal-related neurologic disorders.

[55]        
Dr. Adrian saw Ms. Hosseinzadeh on March 7, 2012. He noted
that she reported no pre-accident regularly occurring pain symptoms affecting
her head, neck, or shoulders, but had a vague recollection of experiencing
minor, infrequent, and brief episodes of low back pain, which she associated
with the physical aspects of working at a daycare. He also noted that Ms. Hosseinzadeh
reported persisting pain affecting her head, neck and lower back since the
accident with the intensity of the symptoms fluctuating.

[56]        
On examination, Dr. Adrian observed restricted range of motion of
the neck, with full rotation triggering neck pain. He also noted restricted
range of motion of the lumbar spine, and tenderness over the base of the neck
and over the lumbar spine.

[57]        
Dr. Adrian noted that imaging studies showed degenerative changes
in Ms. Hosseinzadeh’s neck and her lumbar spine at the L3/4 and L5/S1 levels.
In cross-examination he confirmed that degenerative changes happen with age and
the presence of degenerative changes does not mean the person will become
symptomatic. He concluded that it is unlikely Ms. Hosseinzadeh would have
spontaneously developed persistent or physically limiting neck or lower back
pain had it not been for the accident.

[58]        
Dr. Adrian also noted that Ms. Hosseinzadeh had a CT scan
immediately after the accident that, in addition to some degenerative changes,
showed an L4/5 posterior disc protrusion and possible extrusion. He said that it
“is possible this disc herniation occurred during the course of the accident”,
but that “whether this is a chronic (pre-existing) asymptomatic finding or an
acute finding that developed during the course of the accident however is
uncertain”.

[59]        
Dr. Adrian stated that Ms. Hosseinzadeh “experiences clinical
features of a diagnosis of mechanical neck and lower back pain” which “implies
that the source of [her] pain symptoms stem[s] from the musculoskeletal
structures of the spinal column”. He noted that his physical examination
findings supported the symptoms Ms. Hosseinzadeh reported, meaning that when
he physically loaded the musculoskeletal structures of her spinal column “her
symptoms [were] reproduced”. He concluded that Ms. Hosseinzadeh suffers
from chronic mechanical neck and lower back pain.

[60]        
Dr. Adrian explained that studies show that whiplash can result in
injuries to the musculoskeletal structures of the neck, and that lower back
pain symptoms are common in individuals who suffer from a whiplash-type impact.
He noted that Ms. Hosseinzadeh developed her symptoms shortly following
the accident and has experienced persistent pain since then. On this basis, he
concluded that she probably suffered physical forces to the musculoskeletal
structures of her neck and lower back during the accident, resulting in an
injury and chronic mechanical neck and lower back pain. He concluded that her
mechanical neck and lower back pain symptoms are causally related to the
accident.

[61]        
Dr. Adrian explained that individuals suffering symptoms beyond two
years from the injury date are unlikely to experience significant improvement. On
this basis he expressed the view that Ms. Hosseinzadeh’s prognosis for
further recovery is poor.

[62]        
Finally, Dr. Adrian concluded that Ms. Hosseinzadeh will
probably continue to experience difficulty performing activities that place
physical forces onto her spinal column and that these functional limitations
are unlikely to resolve with time. He concluded that she is “probably
permanently partially disabled as a result of injuries suffered in the
accident”. He recommended that she participate in a functional capacity
evaluation to define and quantify her physical functional capabilities to allow
for suitable future vocational planning, and that she continue with low impact
type exercise.

[63]        
At trial, when asked about fibromyalgia, Dr. Adrian said that
fibromyalgia is not a universally accepted term in the medical community
because it does not have an anatomic source. He emphasized that his focus is on
finding an anatomic source of pain.

Issues

[64]        
The principal issues for determination are:

(a)      What
injuries did Ms. Hosseinzadeh suffer in the car accident?  In particular,
has she established that the car accident caused fibromyalgia?

(b)      Is Ms. Hosseinzadeh
disabled and, if so, what is her prognosis?

(c)      What
damages should be awarded to Ms. Hosseinzadeh? In particular, should her
claim for loss of earning capacity be reduced to reflect her failure to try to
find sedentary employment, the risks associated with her pre-existing medical
history, or both?

What injuries did Ms. Hosseinzadeh sustain in the accident?

[65]        
As noted, Ms. Hosseinzadeh claims that the accident caused her to
suffer scratches on her face, bruising, soft tissue injuries resulting in
chronic mechanical pain in her neck and lower back, fibromyalgia, impaired
sleep, and psychological symptoms including lowered mood and depression. There
is some medical evidence that she also suffered a herniated disc in her lower
back at L4/5.

[66]        
Ms. Hosseinzadeh must prove that the accident caused her injuries. The
primary test used in determining causation is known as the “but for” test. Ms. Hosseinzadeh
bears the burden of showing, on a balance of probabilities, that “but for” the
defendant’s negligence, her injuries would not have occurred. In other words, Ms. Hosseinzadeh
must establish that it is more likely than not that without the accident her
injuries would not have occurred.

[67]        
The “but for” test does not demand scientific precision and is not to be
applied too rigidly: Snell v. Farrell, [1990] 2 S.C.R. 311 at 328.
Causation is a practical question of fact which can best be answered by
ordinary common sense. However, the Court will exercise caution in inferring
legal causation by exclusive or substantial reference to a temporal sequence of
events, which may take the form of comparing the plaintiff’s condition in the
pre and post-accident scenarios: Madill v. Sithivong, 2012 BCCA 62 at para. 20;
and White v. Stonestreet, 2006 BCSC 801 at paras. 74-75. However,
the need to use caution about drawing inferences from a sequence of events,
does not mean that a sequence of events cannot underlie a finding of legal
causation.

[68]        
Pre-existing injuries must also being taken into account in determining
whether the accident is the cause of Ms. Hosseinzadeh’s injuries. The Court in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, explained
the “crumbling skull” rule, recognizing that the defendant is not liable for any
debilitating effects from pre-existing condition which the plaintiff would have
experienced anyway. The Court held, at para. 35, that “if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award”. A plaintiff is only entitled to be restored to his or
her original position.

[69]        
As already noted, Ms. Hosseinzadeh led a significant amount of
expert medical evidence that supports her claim. However, as in most cases
involving subjective complaints of pain, much turns on her credibility, and it
is particularly important to exercise caution and examine her evidence
carefully: Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at 399. If
her account is not convincing, the hypothesis upon which her medical evidence
rests will be undermined: Samuel v. Chrysler Credit Canada Ltd., 2007
BCCA 431 at paras. 15, 43-44.

Should Ms. Hosseinzadeh be believed?

[70]        
The factors to be considered when assessing credibility were summarized
in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012
BCCA 296, leave to appeal ref’d, [2012] S.C.C.A. No. 392. They include the
firmness of the witness’s memory, the ability of the witness to resist the
influence of interest in modifying her recollection, whether the witness’s
evidence harmonizes with independent evidence that has been accepted, whether
the witness changes her evidence during direct examination and
cross-examination (or between examination for discovery and trial) or is
otherwise inconsistent in her recollections, the witness’s demeanor, and
whether the witness’s evidence seems generally unreasonable, impossible, or
unlikely. Fundamentally, the question is whether the witness’s evidence is
consistent with the probabilities affecting the case as a whole.

[71]        
Counsel for the defendant submitted that there were “numerous examples
in the trial transcript of inconsistencies in the plaintiff’s evidence” and
highlighted five such examples. For the reasons expressed below, I do not agree
that the inconsistencies in Ms. Hosseinzadeh’s evidence, to the extent
they exist, affected her credibility in any material way. I found her evidence
as a whole to be forthright, generally consistent, and inherently believable.

[72]        
First, counsel for the defendant submitted that Ms. Hosseinzadeh
was not always consistent in her reports to her health care providers, noting
that at her appointment with Dr. Javidan on November 4, 2011, she told him
that she could not do her exercises because of pain but that two weeks earlier
her kinesiologist at Mountainview prepared a report indicating improvement in
the level of her pain.

[73]        
However, when the evidence is considered as a whole, there is no
material inconsistency. In brief, Ms. Hosseinzadeh’s evidence was that she
was in very significant pain during the two years following the accident. She
went to the kinesiologist for the first time in April 2011, two years after the
accident, complaining of continuing significant pain in her back which radiated
down her legs, as well as pain in her neck and shoulder areas. Her performance
on most of the tests administered by the kinesiologist was poor and her
Oswestry score indicated she perceived herself as being significantly disabled.
The kinesiologist testified that Ms. Hosseinzadeh cooperated with the
exercise program developed for her, made good efforts, and followed the
kinesiologist’s recommendations. She did improve over the six months between
April and October 2011. Yet her Oswestry score in October, although improved,
indicated that she continued to perceive herself as disabled, and she continued
to report headaches and significant pain in her back, legs, and neck.

[74]        
At trial, Ms. Hosseinzadeh was forthright in acknowledging that the
kinesiology program was helpful but that does not mean that she could always do
her exercises without pain. To the contrary, the evidence as a whole supports
the conclusion that she was still experiencing significant pain in the fall of
2011, although she had some better and some worse days. For example, the
kinesiologist noted that in September 2011, when she tried to move Ms. Hosseinzadeh
up one level in the resistance bands she was using to do her exercises, it was
too painful so she reverted to the band with the least resistance.

[75]        
Further, and in any event, Dr. Javidan noted in his expert report
that he had access to the kinesiologist’s records which documented the
improvement made by Ms. Hosseinzadeh while working with the kinesiologist
at Mountainview. He was aware of this improvement when he expressed the opinion
that the accident caused acute mechanical injuries that have developed into
chronic pain syndrome and fibromyalgia.

[76]        
Second, counsel for the defendant emphasized that at trial, Ms. Hosseinzadeh
denied suffering from back pain prior to the accident, which is inconsistent
with a note in Dr. Beheshti’s clinical records from April 2008 of back
pain “associated with lifting a kid“, and with Dr. Adrian’s report which
noted episodic minor low back pain associated with her work at the daycare.

[77]        
Again, however, when the evidence is considered as a whole, there is no
material inconsistency. In cross-examination, Ms. Hosseinzadeh admitted
that she may have had some isolated incidents of back pain from lifting
children at work although she also said that she did not specifically recall
any such incident, nor did she recall telling Dr. Adrian that she had such
back pain. Clearly, any pre-existing back pain was not a significant event in
her life. I accept that, at trial, she simply did not recall it and her
credibility was enhanced by her acknowledgment that although she did not recall
it, it may have occurred. Further, Dr. Adrian was aware of this episodic
back pain and it did not affect his opinions.

[78]        
Third, counsel for the defendant submitted that there were
inconsistencies in Ms. Hosseinzadeh’s evidence about the particularly
painful episode she suffered, not long before trial, when her back seized up as
she bent over to plug in her tablet. She testified that she went to see Dr. Beheshti
that day. However, counsel for the defendant said she gave inconsistent
evidence about lying on the floor all day and still lying on the floor several
days later when she was visited, at home, by Ms. Jabbary.

[79]        
Again, there was no inconsistency in Ms. Hosseinzadeh evidence
about this episode. She said that it occurred on a day when she already had a
doctor’s appointment scheduled. She managed to get to the phone to call her
husband who came home and helped her get to her doctor’s appointment. She said
that after seeing her doctor, she returned home and laid down where she
remained for about 10 days. Two days after this incident occurred, on a
Saturday, she phoned Ms. Jabbary, but Ms. Jabbary was not able to
come see her until the following Monday. When Ms. Jabbary arrived at her
home the following Monday she continued to be basically immobile, lying on the
floor. Ms. Hosseinzadeh’s description of her condition on that day was
corroborated by Ms. Jabbary.

[80]        
Fourth, counsel for the defendant submitted that Ms. Hosseinzadeh’s
evidence about her continuing physical limitations was inconsistent. Again, in
my view, there was no material inconsistency. Counsel pointed out that Ms. Hosseinzadeh
said she could not sit or stand for any length of time, but that she goes to
her son’s soccer games. However, the evidence was that she only goes to the
soccer games sometimes, and that when she is in too much pain she does not go.
She also testified that when she does go to the games she alternates sitting
and standing to alleviate the discomfort.

[81]        
Fifth, counsel for the defendant submitted that there were other
inconsistencies regarding details of Ms. Hosseinzadeh’s life, such as
whether her trip to Iran was in 2006 or 2007 and when, specifically, she worked
at a particular bakery. While Ms. Hosseinzadeh was clearly confused about
some of these details, there was nothing about any of this evidence that caused
me to be at all concerned about her honesty generally and in particular when
relaying the impact of the accident on her life.

[82]        
As already noted, I found Ms. Hosseinzadeh’s evidence as a whole to
be forthright, generally consistent, and inherently believable. She testified
in a direct, mostly unemotional manner, although she did break down when she
described the way her injuries have affected her intimate relationship with her
husband. As corroborated by the kinesiologist, she has followed the
recommendations for treatment. She has continued to try to exercise even though
exercise sometimes exacerbates her pain. Her evidence about her pre-accident
lifestyle and the impact of the accident on her lifestyle was corroborated by
several other witnesses, including her husband, son, and two of her friends. I
was impressed by all of these witnesses. Certainly none of them was shown to be
inaccurate or unreliable.

[83]        
In short, in evaluating Ms. Hosseinzadeh’s testimony in the context
of the whole of the evidence, any minor shortcomings identified by the
defendant did not taint the credibility or reliability of her evidence on any
of the material issues. I found Ms. Hosseinzadeh to be a credible
witness and I accept her evidence.

Were the injuries caused by the accident?

[84]        
Based on Ms. Hosseinzadeh’s own account and the evidence of Dr. Beheshti,
I find that Ms. Hosseinzadeh was injured in the accident and that her
injuries included scratches and bruising as well as injuries to her neck and
lower back. Based on the evidence of Drs. Javidan and Adrian, I find that Ms. Hosseinzadeh
suffered a moderately severe mechanical injury to her neck and lower back in
the accident. Based on the evidence of Dr. Javidan, I find that she also
suffered a herniated disc in her lower back in the accident. Based on Ms. Hosseinzadeh’s
own account and the evidence of Drs. Javidan and Adrian I find that Ms. Hosseinzadeh’s
condition has persisted over the years since the accident, is debilitating, and
has become chronic and permanent.

[85]        
As already noted, the defendant called no evidence to contradict the
evidence of Drs. Javidan, Adrian or Day. Indeed, defence counsel mounted
little, if any, challenge to the opinions of Dr. Javidan or Adrian in
cross-examination and made no submissions to the effect that their opinions
should not be accepted. Instead, counsel for the defendant submitted only that Ms. Hosseinzadeh
had failed to meet her burden of establishing that the accident caused her
fibromyalgia.

[86]        
Counsel for the defendant submitted, in effect, that Dr. Day’s
opinion should be rejected for the following reasons:

(a)      fibromyalgia
does not have a clear causal mechanism;

(b)      Ms. Hosseinzadeh
had health concerns prior to the accident, some of which are associated with
the development of fibromyalgia;

(c)      there
was a significant gap in time between the accident and the development of Ms. Hosseinzadeh’s
fibromyalgia; and

(d)      the
symptoms associated with a diagnosis of fibromyalgia include a substantial
subjective component, and Ms. Hosseinzadeh’s self-report of her symptoms
should be rejected because she is not credible.

I will deal with each of these submissions in turn.

[87]        
Dr. Adrian testified that fibromyalgia is not a universally
accepted term in the medical community because it does not have an anatomic
source. However he also acknowledged that he is not an expert on fibromyalgia. Dr. Day
testified that while the diagnosis itself is not, in her view, controversial,
the causes of fibromyalgia remain controversial in the medical community.
Nevertheless, she expressed the opinions that fibromyalgia can be caused by
physical trauma such as a car accident, and that Ms. Hosseinzadeh’s fibromyalgia
was caused by the accident. Those opinions were not undermined in any way. Dr. Day
was qualified, without objection, as an expert in the diagnosis of
fibromyalgia. I accept her diagnosis of Ms. Hosseinzadeh’s fibromyalgia
and her opinion as to the cause of it.

[88]        
Defence counsel also submitted that Ms. Hosseinzadeh’s pre-existing
thyroid disease, type II diabetes, or both are associated with the development
of fibromyalgia, implying that this should lead me to conclude that Ms. Hosseinzadeh
has not established that her fibromyalgia was caused by the accident,
notwithstanding Dr. Day’s opinion to the contrary. Defence counsel
submitted that Dr. Day acknowledged that thyroid disease is a secondary
cause of fibromyalgia but that she did not do any tests to rule out thyroid
disease as the cause in this case. However, there is no evidence before me as
to what tests could have or should have been done. Dr. Day’s firm evidence
was that she ruled thyroid disease out as a possible cause of Ms. Hosseinzadeh’s
fibromyalgia.

[89]        
With respect to diabetes, Dr. Day testified that she did not accept
an association between diabetes and fibromyalgia. When presented, in cross-examination,
with an article stating that some researchers have seen an increased prevalence
of fibromyalgia in patients with type II diabetes, Dr. Day disagreed.
Thus, the evidence that I have before me is limited to Dr. Day’s opinion
that there is no such association.

[90]        
In the circumstances, there is no evidence upon which I could conclude
that there is a measurable risk that Ms. Hosseinzadeh’s pre-existing
thyroid condition and/or diabetes would have led to fibromyalgia regardless of
the accident.

[91]        
I turn then to the defence submission that Dr. Day’s opinion should
be rejected because of the delay between the accident, on April 11, 2009, and
the fibromyalgia diagnosis. Counsel for the defendant relied on Warkentin v.
Riggs, 2010 BCSC 1706, in support of this submission. However, the facts in
Warkentin are very different from those in this case.

[92]        
The plaintiff in Warkentin was injured in an accident in March
2005 but, unlike Ms. Hosseinzadeh, was able to continue to work, even
accepting a more challenging job in April 2006, and had no difficulties with
that new job until 2008. Throughout 2006, the plaintiff in Warkentin had
“moderate infrequent headaches and some pain” but “it did not interfere with
her work or homemaking tasks” (para. 13). It was not until late 2008 that
the plaintiff started to have chronic pain symptoms. Further, in that case,
there was expert medical evidence to the effect that the temporal connection
between fibromyalgia and trauma was up to 18 months.

[93]        
In contrast, in this case, there is no evidence upon which I could make
any findings regarding the typical temporal connection between an event of
trauma and a diagnosis of fibromyalgia. In any event, unlike the plaintiff in Warkentin,
there is evidence before me that Ms. Hosseinzadeh suffered significant
pain constantly since the accident, that it had become diffuse by the time she
attended the Mountainview Kinesiology program commencing two years after the
accident in April 2011, and that Dr. Javidan considered her symptoms to be
consistent with fibromyalgia by November 2011, all prior to the formal
diagnosis of fibromyalgia in June 2012 by Dr. Day.

[94]        
In my view, this case is far more similar to S.R. v. Trasolini, 2013
BCSC 1135, than it is to Warkentin. In S.R., the plaintiff was
injured in an accident in July 2007, suffered neck, shoulder and back pain over
the subsequent year which increased and became significantly more widespread in
the summer of 2008. She was formally diagnosed with chronic pain
syndrome/fibromyalgia in May 2009, nearly two years after the accident. In S.R.,
Ballance J. held that “there was no measurable risk that, without the Accident,
[the plaintiff] would have experienced the injuries that surfaced after the
Accident, including the development of fibromyalgia” (at para. 163).

[95]        
Finally, the defendant submitted that the symptoms associated with a
diagnosis of fibromyalgia include a substantial subjective component and Ms. Hosseinzadeh’s
self-report of her symptoms should be rejected because she is not credible. For
the reasons already given, I reject that submission.

[96]        
For the reasons expressed above, I accept Dr. Day’s opinion. Specifically,
I find that Ms. Hosseinzadeh suffers from fibromyalgia that was caused by
the accident. However, if I am wrong about that, it is my view that the name of
her condition is of little if any significance. It is clear from Dr. Javidan’s
and Dr. Adrian’s evidence, and from Ms. Hosseinzadeh’s own account of
her symptoms, that she suffers from chronic debilitating pain. Whether that
pain is called chronic mechanical pain, as Dr. Adrian calls it, or
fibromyalgia, as Dr. Day calls it, or both, the effect on Ms. Hosseinzadeh
is the same.

[97]        
In summary, relying on the opinions of Drs. Javidan, Day, and
Adrian, as well as Ms. Hosseinzadeh’s own evidence and the other lay
evidence, I conclude that Ms. Hosseinzadeh would not have developed
chronic pain/fibromyalgia, and the associated symptoms of impaired sleep and
depressed mood, but for the negligence of the defendant.

Is Ms. Hosseinzadeh disabled and what is her prognosis?

[98]        
All the expert medical evidence in this case supports the conclusion
that Ms. Hosseinzadeh’s condition is chronic, that she is unlikely to
experience any significant improvement, that she is permanently disabled from
her job as a daycare worker, and that she is permanently partially disabled
from the activities of daily living. The only issue of some debate is whether
she is capable of some sedentary employment. Although Dr. Day’s opinion is
that she is not capable of working at all, the preponderance of the medical
evidence is that she may be capable of some sedentary work and that she should
participate in a functional capacity evaluation.

[99]        
On the basis of this evidence, I find, on a balance of probabilities,
that Ms. Hosseinzadeh’s chronic pain/fibromyalgia is permanent and
unlikely to improve. I also find that she is permanently disabled from her job
as a daycare worker, that she is permanently partially disabled from the
activities of daily living, and that she is capable of undergoing a functional
capacity evaluation. However, even if Ms. Hosseinzadeh was capable of some
sedentary work, that does not mean she would be likely to secure a job with
enough flexibility to accommodate her fluctuating symptoms. I will address that
question in more detail in the section to follow on loss of income earning
capacity.

What damages should Ms. Hosseinzadeh be awarded?

Non-pecuniary Damages

[100]     In
determining the amount of non-pecuniary damages, the Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34, set out a non-exhaustive list of factors to be
considered that include the following (para. 46):

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of
pain;

(d)      disability;

(e)      emotional suffering;

(f)       loss or impairment of
life;

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

(h)      impairment of physical and
mental abilities; and

(i)       loss of lifestyle.

All of these factors come into play in determining
non-pecuniary damages in Ms. Hosseinzadeh’s case.

[101]     Ms. Hosseinzadeh
is a middle-aged woman; 43 years old when the accident occurred. The pain she
has suffered has been significant, has persisted, has disabled her from most of
her former activities, and is unlikely to improve. It has resulted in sleep
impairment and has affected her mood. She faces many years of ongoing pain and
compromised lifestyle.

[102]     The injuries
have affected all areas of Ms. Hosseinzadeh’s life. Prior to the accident,
she was able, with ease, to look after all of the cooking, housekeeping,
laundry, and shopping for her family. She now depends on her husband and son to
do much of this work and, although she can do some housekeeping, what used to
take her a few hours each week is now a constant chore that she slowly works at
throughout the day, taking frequent breaks. She has been deprived of her
favorite activity — cooking meals for and entertaining large groups of
friends. Her once vibrant social life of weekly parties, BBQs, and other events
with friends has been significantly diminished.

[103]     While Ms. Hosseinzadeh
continues to try to exercise regularly, she has had to modify what she does and
sometimes she exercises in pain. She used to swim but now does mild exercises
in the pool. She used to walk with friends easily but now has to take frequent
breaks when she walks. At times her pain not only prevents her from exercising,
it leaves her immobile for days at a time.

[104]     A formerly
outgoing, sociable, and engaged woman, Ms. Hosseinzadeh is now more
reclusive and has to depend heavily on her husband and her son. She must
confront the reality that she has an incurable condition that has left her significantly
impaired and, on bad days, almost completely incapacitated. All of this has had
a significant adverse effect on her overall emotional well-being.

[105]     Counsel
for Ms. Hosseinzadeh submits that an award of non-pecuniary damages in the
range of $100,000 and $125,000 is appropriate, citing the following cases in
support:

(a) S.R.
(non-pecuniary damages of $130,000);

(b) Reilander
v. Campbell, 2011 BCSC 1848 (non-pecuniary damages of $125,000);

(c) Morlan
v. Barrett, 2010 BCSC 1767, aff’d 2012 BCCA 66 (non-pecuniary damages of
$125,000);

(d) Shapiro
v. Dailey, 2010 BCSC 770, varied on other grounds, 2012 BCCA 128 (non-pecuniary
damages of $110,000); and

(e) Rizzotti
v. Doe, 2012 BCSC 1330 (non-pecuniary damages of $110,000).

[106]     Counsel
for the defendant did not refer to any case law and did not make any specific
submissions regarding the appropriate award for non-pecuniary damages.

[107]     Awards of
damages in other cases provide a guideline only. Ultimately, each case turns on
its own facts. Having said that, I did find that the cases referred to by
counsel for Ms. Hosseinzadeh to be helpful, particularly S.R. which
was very similar in several factual respects. Taking all this into account, I
find that an award of $125,000 for non-pecuniary damages is appropriate in this
case.

Loss of Income Earning Capacity

[108]     Both past
and future income loss is properly considered on the basis of loss of income earning
capacity: Ibbitson v. Cooper, 2012 BCCA 249 at para. 19; Falati
v. Smith, 2010 BCSC 465 at para. 39, aff’d 2011 BCCA 45.

[109]     As
explained by Dardi J. in Midgley v. Nguyen, 2013 BCSC 693, at paras. 236-240:

(a)      the
plaintiff must first establish an impairment to his or her earning capacity and
a real and substantial possibility that the impairment has and/or will result in
a pecuniary loss;

(b)      having
done so, the quantification of the loss must take into account all positive and
negative contingencies which, as hypothetical events, are to be given weight
according to their relative likelihood, and

(c)      a
particular contingency will be taken into consideration so long as the evidence
establishes the occurrence of the contingency as a realistic as opposed to a
speculative possibility.

(See also Athey, at para. 27; Perren v.
Lalari, 2010 BCCA 140; and Morgan v. Galbraith, 2013 BCCA 305.)

[110]     The law
recognises that contingencies and other uncertain factors make it impossible to
calculate lost opportunities, including a loss of income earning capacity, with
precision: Erickson v. Sibble, 2012 BCSC 1880 at para. 271. A loss of income
earning capacity, whether past or future, requires the assessment of damages
which considers the overall fairness and reasonableness of the award taking
into account all positive and negative contingencies, not a calculation
according to a mathematical formula: Schenker v. Scott, 2014 BCCA 203 at
para. 53.

[111]     In this
case, the defendant acknowledges that Ms. Hosseinzadeh’s income earning
capacity was impaired by the injuries she suffered in the accident and that the
impairment resulted in a pecuniary loss. However, counsel for the defendant
submits that the evidence establishes that Ms. Hosseinzadeh could have
returned to a sedentary job within two years after the accident and that she
failed to mitigate by failing to even try to find a sedentary job. In addition,
counsel for the defendant submits that the expert evidence regarding Ms. Hosseinzadeh’s
loss of future earning capacity failed to factor in the risks associated with
her pre-existing medical history, particularly her history of diabetes.

[112]    
The duty on a plaintiff who has been disabled from working at her
pre-accident occupation to seek alternative employment was expressed as follows
by Dardi J. in Midgley, at paras. 280-282:

In Parypa v. Wickware, 1999 BCCA
88 at para. 67, the court stated that there is a duty on a
plaintiff to mitigate his damages by seeking, if at all possible, a line of
work that can be pursued in spite of his injuries: See also Graham v. Rogers,
2001 BCCA
432 (leave to appeal to S.C.C. refused, [2001]
S.C.C.A. No. 467).

In Mazzuca v. Alexakis, [1994]
B.C.J. No. 2128 (S.C.) (appeal dismissed, [1997]
B.C.J. No. 2178) in assessing future income loss, the trial
judge cited Southin J.A.’s comments in Palmer v. Goodall (1991), 53
B.C.L.R. (2d) 44 (C.A.), and observed that a plaintiff must prove
that the earnings from the vocation which he has lost the capacity to perform
cannot be replaced by a substituted vocation.

After the 2004 Accident, Mr. Midgley
was obliged to take reasonable steps to find employment at a level he
reasonably could have been expected to achieve in light of his injuries.
Doctrinally, whether this postulation is articulated and analyzed as mitigation
of losses or an assessment of Mr. Midgley’s residual earning capacity, in
this case, the result is the same.

[113]   I
agree with that analysis.  In assessing Ms. Hosseinzadeh’s loss of income
earning capacity claim, I must consider what she would have earned had she not
been injured and what she reasonably could have earned notwithstanding her
injuries, having taken into account all positive and negative contingencies
according to their relative likelihood.

Loss of Past Income Earning Capacity

[114]     The value
of a particular plaintiff’s capacity to earn is equivalent to the value of the
earnings that she or he would have, not could have, earned but for the injury
that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30;
M.B. v. British Columbia, 2003 SCC 53 at para. 49.

[115]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover only his or her past net income loss: Rizzolo
v. Brett, 2009 BCSC 732 at para. 72, aff’d 2010 BCCA 398.

[116]     As already
noted, even past wage loss involves a hypothetical. What would Ms. Hosseinzadeh
have earned if she had not been injured in the car accident? The burden of
proof is therefore realistic possibility with damages to reflect the likelihood
or chance of the loss occurring.

[117]      But
for her one trip to Iran in 2007, Ms. Hosseinzadeh had worked fairly
consistently since immigrating to Canada. At the time of the accident, she had
been working full time at Future Scholars Daycare for nearly a year and a half.
She said she enjoyed working with children and planned to stay there. I find
there is a realistic possibility that, but for the accident, she would have
continued to work at Future Scholars or at another daycare in the time period
up to the trial.

[118]     The
evidence establishes that at the time of the accident, Ms. Hosseinzadeh’s
annual income was $22,736, if annualized from her actual earnings during the
first few months of 2009. Ms. Hosseinzadeh submits that her loss of past
income earning capacity should be assessed as $22,736 per year for each of the
five years between the accident and the trial.

[119]     The
defendant acknowledges that $22,736 is the maximum amount Ms. Hosseinzadeh
would have earned in 2009 but submits her loss of past income earning capacity
should be assessed on the basis of potential annual earnings of $17,918.30,
which is of the average of her actual earnings for 2007 and 2008 and the
annualized earnings for 2009. The defendant submits this approach would be more
accurate and fair because Ms. Hosseinzadeh’s work history, in particular
her four-month leave in 2007 to go to Iran, establishes a likelihood that she
would not have continued to work full-time. Further, as already noted, the
defendant also submits that Ms. Hosseinzadeh could have returned to a
sedentary job within two years after the accident.

[120]     I do not
accept that the fact Ms. Hosseinzadeh took one trip to Iran in 2007
establishes a likelihood that she would not have continued to work full time.
However, given her varied work history, and the fact that she had only worked
in a daycare for about two years prior to the accident, I find that there is a
realistic possibility that Ms. Hosseinzadeh would have had a period or
periods of less than full-time employment in the years between the accident and
the trial. However, based on her own evidence of her intentions, which I
accept, the chance or likelihood of that occurring is small.

[121]     As already
noted, there was some suggestion by counsel for the defendant that one or both
of Ms. Hosseinzadeh’s diabetes or thyroid condition could have interfered
with her ability to work. However there was no medical evidence to that effect
and Ms. Hosseinzadeh’s evidence was that these conditions had not
interfered with her ability to work. In the circumstances, the evidence would
not support a finding of any realistic possibility that either of these
conditions would have interfered with Ms. Hosseinzadeh ability to work.
Any contrary suggestion is at best speculative.

[122]     I turn
then to the question of whether Ms. Hosseinzadeh’s failure to even attempt
a more sedentary job was unreasonable. As already noted, it was Dr. Day’s
opinion that Ms. Hosseinzadeh is permanently disabled from all forms of
work and that in her circumstances the stress of trying to work would worsen
her condition. However, Dr. Javidan and Dr. Adrian both expressed the
opinion that she might be able to work at a more sedentary job and that she
should undergo a functional capacity evaluation. On her evidence, Ms. Hosseinzadeh
is able, on good days, to walk, exercise at the gym and in the pool, and slowly
do her housework. In my view, the evidence as a whole does establish that Ms. Hosseinzadeh’s
failure to undergo a functional capacity evaluation was, in the circumstances,
unreasonable.

[123]     That,
however, does not end the analysis. It is also necessary to consider whether her
loss of income earning capacity claim would have been reduced had she done so.
As this involves a hypothetical, the burden of proof is realistic possibility
with the amount of any reduction to reflect the likelihood or chance of the
reduction occurring. Again, the evidence of Dr. Javidan and Dr. Adrian
was that Ms. Hosseinzadeh should undergo a functional capacity evaluation.
That evidence does, in my view, establish a realistic possibility that Ms. Hosseinzadeh
could have returned to some form of non-physical employment. However, that
possibility must be given weight according to its relative likelihood. The
evidence of Dr. Javidan and Dr. Adrian is not, in my view, a
sufficient basis upon which to conclude that the chance of Ms. Hosseinzadeh’s
loss of income earning capacity claim being reduced would be any more than negligible
had she undergone a functional capacity evaluation. Further, given Ms. Hosseinzadeh’s
own evidence of the nature, pattern, and intensity of her pain; the limitations
it puts on her daily activities; as well as the evidence of Dr. Day; I
conclude that there is only a very small chance that had she undergone such an
evaluation she would have been able, ultimately, to secure some form of
sedentary work that was flexible enough to accommodate her fluctuating
symptoms.

[124]     In all the
circumstances, I find there find there is a 95% chance that Ms. Hosseinzadeh
would have earned about $22,000 per year, in each of the five years between the
accident and the trial, for a total of $104,500. I also find that had Ms. Hosseinzadeh
participated in a functional capacity evaluation there is a 20% chance that she
could have worked part time in some form of sedentary job, earning as much as
$10,000 per year. On that basis, and recognizing that an assessment of damages
is not a precise mathematical calculation, I conclude that Ms. Hosseinzadeh’s
loss of past income earning capacity claim should be assessed at $94,500, less
an amount to reflect the income tax that would have been paid on her earnings.
Counsel for the defendant submitted that it would be appropriate to deduct 10%
to account for income tax and employment insurance. No contrary submission was
made on behalf of Ms. Hosseinzadeh. In the circumstances I award Ms. Hosseinzadeh
$85,000 for loss of past income earning capacity.

Loss of Future Income Earning Capacity

[125]     If the
plaintiff has established both an impairment to her earning capacity and a real
and substantial possibility that the impairment will result in a future
pecuniary loss, the future loss may be quantified on either an earnings
approach or a capital asset approach: Schenker, at para. 51;
Perren, at para. 32.

[126]     The earnings approach is generally appropriate where
the loss is more easily measured, such as where the plaintiff has some earnings
history or where the court can otherwise reasonably estimate what the
plaintiff’s likely future earning capacity will be: Perren, at para. 32;
Clemas v. Gabrlik, 2013 BCSC 1412 at para. 170. This approach
typically involves an assessment of the plaintiff’s estimated annual income
loss multiplied by the remaining years of work and then discounted to reflect
current value, or alternatively, awarding the plaintiff’s entire annual income
for a year or two: Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.) at para. 43; Gilbert v. Bottle, 2011
BCSC 1389 at para. 233; Clemas, at para. 170. While there is a
more mathematical component to this approach, the assessment of damages is
still a matter of judgment not mere calculation.

[127]     The
capital asset approach, typically used in cases where the plaintiff has no
clear earnings history, involves consideration of a number of factors such as
whether the plaintiff  has been rendered less capable overall of
earning income from all types of employment, is less
marketable or attractive as a potential employee, has lost the
ability to take advantage of all job opportunities that might otherwise have
been open, and is less valuable to herself as a person capable of earning
income in a competitive labour market: Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) at para. 8.

[128]      Ms. Hosseinzadeh
submits the court should assess her damages for loss of future income earning
capacity using the earnings approach. Given Ms. Hosseinzadeh has some
earnings history and is no longer working at all, I agree that the earnings
approach is appropriate in this case. The task is to compare Ms. Hosseinzadeh’s
likely future working life had the accident not occurred, to her likely future
working life given that it did occur. Many of the considerations material to
her claim for loss of past income earning capacity have application to her
future claim as well.

[129]     Ms. Clark
estimated Ms. Hosseinzadeh’s loss of future earnings by calculating the
present value of the average earnings of a female daycare worker in Canada,
from the time of trial to when Ms. Hosseinzadeh reached the ages of 65 and
70, under two scenarios: first as discounted for both risk and choice
contingencies, and second as discounted only for risk contingencies. Ms. Clark
explained that risk contingencies include personal illness and poor economic
conditions whereas choice contingencies reflect personal choices to be out of
the labour market or work part time. Ms. Clark’s evidence was that, assuming
Ms. Hosseinzadeh worked to age 65 in a daycare, the present value of her
future earnings is $201,532 under the first scenario and $334,771 under the
second. She also expressed the view that it would be appropriate to add to
these figures an amount to reflect the non-wage benefits of Canada Pension Plan
and employment insurance premiums paid by employers. Her evidence was that the
value of those benefits ranges between 3.7% and 7.2% of a worker’s earned
income, with percentages at the higher end applying at low and intermediate
levels of income.

[130]     Counsel
for the defendant submitted that Ms. Clark’s approach should be rejected
because the evidence does not support the conclusion that Ms. Hosseinzadeh
can never work again. While all the medical evidence supports the conclusion
that she is permanently disabled from her daycare job, as already noted, the
defendant submits that Ms. Hosseinzadeh could have returned to some form
of sedentary work.

[131]     For the
reasons already expressed, I find that Ms. Hosseinzadeh’s income earning
capacity has been impaired as a result of the injuries she sustained in the
accident, and that there is a real and substantial possibility that the
impairment will result in a pecuniary loss. Again, the best the evidence gets
for the defendant is Dr. Adrian’s and Dr. Javidan’s evidence that Ms. Hosseinzadeh
could try a sedentary job and that she should undergo a functional capacity
evaluation. There is no dispute that Ms. Hosseinzadeh is permanently
disabled from any physical job, including her daycare job. For the reasons
already expressed, I conclude there is a 20% chance that she could earn a relatively
small amount of income through some form of sedentary employment.

[132]     Counsel
for the defendant also submitted that Ms. Clark’s approach should be
rejected because it did not factor in Ms. Hosseinzadeh’s history of
diabetes and hypothyroidism. For the reasons already expressed, the evidence
does not support a finding of any realistic possibility that either of these
conditions would have interfered with Ms. Hosseinzadeh’s ability to work.

[133]     Counsel
for the defendant also submitted that even if Ms. Clark’s general approach
was accepted, the assessment should be based not on average earnings of female
daycare workers but rather on annual earnings of $17,918.30, which is the
average of her actual earnings for 2007 and 2008 and her annualized earnings
for 2009. Counsel further submitted that the assessment should reflect Ms. Clark’s
first scenario, namely the present value less a deduction for both risk and
choice contingencies.

[134]     In my
view, Ms. Clark’s approach of basing her calculations on the average
earnings of daycare workers is appropriate. Her approach reflected average
earnings of $22,141 for 2014, which is less than Ms. Hosseinzadeh’s
projected earnings for 2009 of $22,736 based on her actual earnings for the
first few months of that year. As already explained, I find that given her work
history there is a realistic possibility that Ms. Hosseinzadeh would have
had a period or periods of less than full-time employment, by choice. However, this
contingency would be accounted for if Ms. Clark’s risk and choice scenario
is adopted. It is not necessary or appropriate to also commence the analysis
with an assumed income that is significantly lower than what Ms. Hosseinzadeh
was actually earning.

[135]     For these
reasons, and keeping in mind in need to consider the overall fairness and
reasonableness of an award of damages under this head, as opposed to attempting
a precise calculation according to a mathematical formula, I assess Ms. Hosseinzadeh’s
damages for loss of future income earning capacity at $175,000. This reflects
the present value of her future earnings to age 65 of $201,532 as calculated by
Ms. Clark under the risk and choice scenario, plus 5% to reflect non-wage
benefits, less a 20% chance that Ms. Hosseinzadeh will earn as much as
$10,000 per year over the 18 years from trial to age 65 through some form of
sedentary employment.

Future Care

[136]     Ms. Hosseinzadeh
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore her to her pre-accident condition, insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29-30.
An assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[137]     The test
for assessing an appropriate award for the cost of future care is an objective
one based on the medical evidence. There must be a medical justification and
the claims must be reasonable: Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.

[138]     As already
noted, Dr. Day’s evidence was that Ms. Hosseinzadeh should continue
to have regular, monthly physiotherapy for the rest of her life and should also
continue to have massage therapy, as frequently as weekly, during times of
flare-up. She also testified that Ms. Hosseinzadeh should continue to exercise
regularly. Dr. Beheshti testified that that Ms. Hosseinzadeh should
continue to exercise and continue with physiotherapy.

[139]     Ms. Hosseinzadeh
claims future care costs of $59,217 based on the present value of ongoing,
regular physiotherapy and massage therapy for the rest of her expected
lifespan. She testified that she does not have to pay to use the exercise
facilities at her local community center so she makes no claim for the cost of
exercise. The evidence established the cost of physiotherapy at $65 per session
and of massage therapy at $90 per hour. At 12 physiotherapy sessions per year
and 52 massage therapy sessions per year the total cost, if Ms. Hosseinzadeh
actually attended physiotherapy monthly and massage therapy weekly, would
amount to $5,460 per year. Her counsel submitted that an appropriate award for
cost of future care should be based on $3,000 per year given that Ms. Hosseinzadeh
is unlikely to attend weekly massage therapy consistently. The defence advanced
no submissions on this head of damages.

[140]     As noted
above, the medical evidence was that Ms. Hosseinzadeh should continue to
attend monthly physiotherapy for life and should also attend weekly massage
therapy during periods of flare-up. It is, of course, difficult to predict how
often such flare-ups will occur. Ms. Hosseinzadeh did testify that she
experiences intense and debilitating pain about once a month, with episodes
lasting between two and 10 days. In the circumstances, massage therapy for one
flare-up per month is reasonably necessary. Given the duration of the
flare-ups, each will likely require two treatments. Two massage therapy
treatments per month and one physiotherapy treatment per month would cost $2,940
per year. As such, I accept Ms. Hosseinzadeh’s submission that $3,000 per
year is an appropriate basis for calculating her cost of future care. Using the
multiplier tendered in evidence, as submitted by Ms. Hosseinzadeh’s
counsel, this amounts to a present value of $59,217.

Loss of Homemaking Capacity

[141]     Ms. Hosseinzadeh is claiming between $40,000 and $50,000 for loss of homemaking capacity.

[142]     A loss of
homemaking capacity is properly characterized as an award for loss of capacity,
distinct from a cost of future care claim; it is intended to reflect the value
of the work that would have been done by the plaintiff but which he or she is
incapable of performing due to the injuries caused by the accident: Westbroek
v. Brizuela, 2014 BCCA 48 at para. 74. It is not dependent upon
whether replacement costs are actually incurred: Westbroek, at para. 76.
However, a cautionary approach is to be taken in assessing damages for loss of
homemaking capacity to ensure the award is commensurate with the loss: Westbroek,
at para. 77.

[143]     In this
case, the evidence established that before the accident, Ms. Hosseinzadeh
performed all the cooking and housekeeping for her family. After the accident
she was unable to do any housekeeping for a significant period of time, and
even now she cannot do the laundry or grocery shopping. While she can do some housework,
what used to take her a few hours each week now takes her all day with frequent
breaks. In my view, the evidence is overwhelming that since the accident, she
has suffered an impairment of her homemaking capacity and that it will continue
into the future.

[144]     Ms. Hosseinzadeh
provided no explanation as to the basis for the particular dollar amount she
claimed for loss of homemaking capacity. While an award for loss of homemaking capacity
is not intended to be based on a precise mathematical calculation, in my view,
the reasonableness of a particular amount can be assessed by comparison to a
rough estimate of the cost of replacement services. If calculated conservatively at $100 per month, or $1,200 per year, for
the 32 years from the accident to Ms. Hosseinzadeh’s 75^th
birthday, the cost would total $38,400. In my
view, this is a reasonable and cautious amount to award as damages for loss of
housekeeping capacity, taking into account the relevant contingencies as best
as I am able and given Ms. Hosseinzadeh’s pessimistic prognosis. I wish to
be clear that in awarding this amount I am not attempting to calculate the
present value of the cost of replacement services. I am merely using a rough
estimate of the cost of replacement services to test the reasonableness of the
award.

Special Damages

[145]     As already
noted, special damages are agreed at $3,182.50.

Conclusion

[146]     In summary, the damages awarded to Ms. Hosseinzadeh
are as follows:

[147]    
If the parties are unable to agree on costs they may make arrangements
through the registry to speak to that issue.

“Warren
J.”