IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150609

Docket: M139347

Registry:
New Westminster

Between:

Jasmine Villing

Plaintiff

And

Jennifer Subnam
Husseni

Defendant

Before:
The Honourable Mr. Justice A. Saunders

Oral Reasons for Judgment

[1]            
THE COURT: These reasons for judgment are being presented
orally, and in the event a transcript of the reasons is ordered, I am reserving
without limitation my right to edit same, not only as to matters of grammar and
syntax but also where I judge it necessary or desirable to elaborate upon or
amplify what I am about to say.  Needless to say nothing will change the
result.

[2]            
The plaintiff, Jasmine Villing, is 23 years old.  She was injured in a
motor vehicle accident on January 2, 2010, at which time she was a 17‑year‑old
grade 12 high school student.  Liability for the accident is admitted.

[3]            
The vehicle she was driving was struck by an oncoming left‑turning
vehicle.  The impact was considerable.  Her car spun 90 degrees and suffered
enough collision damage that it was not drivable.

[4]            
Later that day she began feeling soreness in her neck, shoulders and
lower back.  She took some Tylenol 3s given to her by a friend or family
member and ended up overdosing.  She attended hospital the next day and had to
be given liquid charcoal to neutralize the medication.  The following day,
January 4, she was taken to hospital with severe back spasms and treated in the
emergency department.

[5]            
Ms. Villing was seen thereafter by her family doctor, who
prescribed anti-inflammatories and physiotherapy.  She has since then undergone
some structured exercise rehabilitation and has had some massage therapy and
chiropractic treatments.  She was referred to a specialist in physiatry, Dr. Cecil
Hershler, in July 2011, and was seen by Dr. Hershler in follow-up in
December 2011, May 2014 and November 2014.

[6]            
There was a second motor vehicle accident in October 2010 which resulted
only in a temporary aggravation of her symptoms.

[7]            
Ms. Villing’s complaints of neck and shoulder pain subsided in the
normal course within a few months of the subject accident.  However, her low
back pain has persisted.  She is still, more than five years post-accident,
bothered daily by lower back pain that comes on during periods of prolonged
sitting or standing and that interrupts her sleep every night.

[8]            
I will review shortly the evidence of how her back injury has affected
her daily living and enjoyment of life, but before doing so I will discuss the
medical evidence.  As a prelude to that, however, I will comment on the
plaintiff’s credibility.  I found the plaintiff honest and forthright in her
testimony.  There were some inconsistencies in her testimony, much of which I
found possibly due to the passage of time.  Some of her evidence was presented
in a rather disjointed manner, and it would have been preferable to have had a
clearer account given as to the relationship between Ms. Villing’s
injuries and decisions she made to pursue or not to pursue various treatment
modalities recommended by her physicians, as well as to the effect of her
injuries of various exercise modalities she has undertaken or attempted to
undertake over the ensuing years.  Nevertheless I detected no fabrication or
exaggeration in Ms. Villing’s testimony.  The defence, citing some of the
inconsistencies I refer to, asked that I treat her evidence with some skepticism
given that her symptoms are largely of a subjective nature.  I do not, however,
find that there is any reason to doubt that the diagnosis made by the two
expert witnesses, which I will discuss shortly, is sound, even to the extent
that it was based upon the plaintiff’s history as given by her to those
physicians when she was examined by them.

[9]            
The court heard testimony from Dr. Pankaj Dhawan, a physiatrist,
for the plaintiff, and Dr. Robin Rickards, an orthopedic surgeon, for the
defence.  Both prepared expert reports filed in evidence and both were cross-examined. 
They are in agreement as to the diagnosis.  There is, however, some uncertainty
as to Ms. Villing’s prognosis, in particular how she will respond to the
suggested treatment.  Dr. Rickards seems somewhat more optimistic than Dr. Dhawan,
but as I say there is some deal of uncertainty on both their parts.

[10]        
Dr. Dhawan believes that Ms. Villing has sustained an injury
to the facet joints of her lumbar spine.  His preference would have been to
have had her treated earlier on with cortisone injections into the lumbar spine
joints, in order to treat any inflammation to the joints and in order to
determine whether the pain was being generated by an inflammatory response. 
Given the time that has now passed since the accident without such treatment having
been rendered, and given the persistence of the plaintiff’s back symptoms, Dr. Dhawan
agrees with Dr. Rickards that it would be appropriate to move now directly
to lumbar facet nerve blocks: first, medial branch blocks (“MBB”), that is,
injections of local anaesthetic to determine if the pain is being generated
through the peripheral nervous system in the joint; and then, if the MBB is
successful, radiofrequency rhizotomy, which entails denervation of the nervous
at the lumbar and or lumbosacral facet joints by the application of heat
through the insertion of electrodes.

[11]        
This procedure, if successful, might have to be repeated yearly
according to Dr. Dhawan.  He also stated that up to 12 to 15 percent of
patients presenting with symptoms similarly to those of Ms. Villing will
in fact have developed a chronic pain syndrome involving the central nervous
system.  In any event, he believes it likely she will have to learn to live
with some degree of chronic back pain that will have to be managed.  Weight loss,
strengthening of her abdominal core, improving her back and hamstring
flexibility, and frequent stretching will all be helpful but proper ergonomics
and back support when sitting for prolonged periods, and frequent getting up
and changing posture, will all be required.

[12]        
Dr. Dhawan is pessimistic of there being any quick resolution of Ms.
Villing’s symptoms.  However, aside from the possibility of some chronic pain,
and aside from the risk of some increased back pain during pregnancy – possibly
with more extended maternity leave or time off in the late stages of pregnancy
being required – he does not identify any long-term disability or restrictions
in her employment in her planned career as a paralegal or perhaps, eventually,
as a lawyer.

[13]        
Dr. Rickards agrees that Ms. Villing’s history and clinical
presentation are suggestive of lumbar facet syndrome with MBB followed by RF
rhizotomy to be the preferred treatment.  He states in his report:

In Lumbar Facet Syndrome,
standing may be somewhat limited but sitting and riding in a car is often the
worst.  So called “limited duty” (sitting) assignments for patients with lower
back pain are paradoxically bad.  When at its height of pain and disability,
the muscle spasm is so continual that it fatigues the muscles, which in turn,
repeats the cycle.

[14]        
As did Dr. Dhawan, Dr. Rickards says that nerve blocks
administrated at the lumbar spine will likely provide a window of opportunity
for the plaintiff to undergo more rigorous exercise and rehabilitation.  Weight
loss, core strengthening and postural education could then be expected to
lessen the back pain and break the cycle of pain spasm and fatigue, possibly
obviating the need for further rhizotomies.

[15]        
Dr. Rickards believes that Ms. Villing is an excellent
candidate for MBB and that there is a high likelihood she will respond with
remission of at least 70 percent to 80 percent of her pain level, which then
will indicate suitability for rhizotomy treatment.

[16]        
Dr. Rickards stated in his report that rhizotomy can provide
significant long term pain relief.  He testified that there could be
significant or full pain relief for 24 to 48 months or longer before nerves
would grow back and the pain could return leading to the procedure having to be
repeated. He did not, in his report or in his testimony, attach any specific
degree of possibility to Ms. Villing experiencing a permanent remission of
her symptoms.  He has experience with older patients having undergone as many
as six rhizotomy procedures.

[17]        
In the course of submissions defence counsel keyed-in on the concluding
paragraphs of Dr. Rickards’s report where he stated as follows:

In my experience:

·       
The very least that can be expected from a successful RF [with
accompanying decreased pain in low back and buttocks] is the opportunity for
the patient to participate in a more active rehabilitation program and a more
rapid return to normal lifestyle and activity.

·       
In cases where a young individual is involved and where no pre-existing
arthritic change is present in the low back [such as in the case of Ms. Villing]
these procedures allow:

                                    
i.         
a full, rapid and complete recovery with return to pre-injury level of
activity.

                                   
ii.         
no risk of recurrence of this problem.

                                  
iii.         
no increased predisposition or risk to the development of arthritic
change in the low back either in the short or long-term.

[18]        
Emphasizing the phrase "no risk of recurrence,” defence counsel
asked me to find that there is, if not a certainty, then at least a very high
probability of Ms. Villing being cured with only one RF rhizotomy
treatment.  Defence counsel emphasizes that Dr. Rickards was not cross-examined
on there being "no risk of recurrence" and says that I should
therefore take that statement at face value.

[19]        
However, Dr. Rickards, I note, phrased this portion of his report
permissively, in terms of what the RF rhizotomy procedure allows.  In the
context of his testimony as a whole I interpreted this as a statement only of a
possible outcome and, as I have said, not one to which Dr. Rickards
attached any specific degree of probability.  Dr. Rickards testified that
there is no known limit to the number of rhizotomy treatments a patient could
undergo in their lifetime.

[20]        
As to the short term effects of a rhizotomy, Dr. Rickards testified
that following each procedure a patient would experience temporary increase in
back pain and would expect not to do much of anything for four to six weeks,
with time off work likely being required.

[21]        
Dr. Rickards also testified as to the wait times for MBBs and RF
rhizotomies in the public health care and private clinic settings and as to the
cost of private care.

[22]        
I return now to the plaintiff’s own evidence as to the impact of her
injuries.  Aside from the back pain the plaintiff has had to endure on a daily
and nightly basis, the greatest impact of the injury has been the diminishment
of the plaintiff’s ability to participate in vigorous athletic activities.  In
particular prior to the accident the plaintiff had been for a couple of years
and enthusiastic participant in a competitive bhangra dance team.  The team put
on displays locally in the community and would also travel to California and
Toronto a couple of times a year for formal competitions.  The team would
practice together two to three times a week and daily in the weeks leading up
to a competition.  The plaintiff was an enthusiastic team member, and she and a
teammate had discussed the possibility in the future of teaching bhangra and
possibly opening up a studio.  At this level bhangra is a physically demanding
activity and I have no hesitation in finding that the plaintiff’s back injury
has disabled her from participation.  This has impacted the plaintiff
physically.  She was, prior to the accident, a slim, trim, fit 17-year-old. 
With her physical activity being restricted – not wholly, because she does
attempt some limited degree of exercise, including aerobics, running and
casually playing tennis from time to time, but with the more vigorous pre-accident
level of activity now being beyond her – she has found it difficult to keep
weight off and has gained 50 pounds.  Her bhangra troupe was also a focus of
her social life.  Her friends who testified describe her as having gone from
being an outgoing social butterfly to becoming withdrawn, reserved and
seemingly unsure of herself.  The plaintiff testified to feeling a loss of
self-esteem.  I accept all of this evidence.

[23]        
Ms. Villing described how her constant need to change positions and
move around because of her back pain has impacted various part-time jobs she
has had, how it impacts her when she is sitting in classes for the paralegal
studies she is now undertaking and how it impacts her when she is studying. 
She finds driving a car particularly painful and has had to sit in an awkward
position behind the wheel with her left leg up resting on the pocket on the
inside door.  She also described how she is unable to assist her mother in any
household chores that involve her bending her back.

[24]        
As to non-pecuniary damages, the plaintiff relies primarily upon Kirkham
v. Richardson, a decision of Madam Justice Warren indexed at 2014 BCSC
1068.  In that case the plaintiff was a 26‑year‑old elite
triathlete who had obtained several podium finishes in half-Ironman races, competing
for prize money.  She had private coaching and followed an intense physical
regime. As a result of a car accident that plaintiff suffered from myofascial
pain syndrome, chronic pain syndrome and cervical facet arthropathy.  While she
could possibly return to recreational sports, she would likely never return to
elite-level training and competition.  Her injuries also led to poor academic
performance during the second year of her Ph.D. studies, which had what the
judge described as a devastating effect on her.  Non-pecuniary damages were
awarded in the amount of $120,000.

[25]        
In the present case the plaintiff’s counsel submits that given the
"irrevocable" changes in the plaintiff’s life, including the loss of
her participation in bhangra and the social outlet it provided, an award of
$150,000 would be appropriate.

[26]        
I note that the award made by Justice Warren was at the upper end of the
range established by the cases cited to her by that plaintiff’s counsel.  I
infer that Justice Warren’s assessment of damages was based to a consider
extent on the loss of that plaintiff’s status as an elite level athlete,
including the emotional impact.  With the greatest respect, and acknowledging
the seriousness of Ms. Villing’s condition, that is a far cry from the
essentially recreational dance activity Ms. Villing engaged in.

[27]        
More comparable, in my view, is another case cited by the plaintiff,
though in support of another aspect of the damages claim, the availability of
damages to fund private health care.  This is the decision of Mr. Justice
Rogers in Engqvist v. Doyle, 2011 BCSC 1585.  The plaintiff in that case
was also suffering facet syndrome, though to her cervical rather than lumbar
joints.  At trial, some four years after the accident, the plaintiff, a
74-year-old, was experiencing continuous aching in her shoulder.  Any
significant activity with her right arm would cause pain that at its worst
could be quite disabling.  Her tolerance for all physical activity involving
the use of her right arm was restricted.  She, like Ms. Villing, was
facing the prospect of MBB blocks, to be followed if successful by one or more
rhizotomy procedures – described by Justice Rogers in his reasons as
"wildly painful" – with permanent relief being possible, but the more
likely outcome being partial abatement of pain to be expected for six months to
five years.  There were also dental injuries suffered, necessitating implants
in place of the plaintiff’s denture.  Non-pecuniary damages were awarded in
that case in the amount of $70,000: $65,000 for the first of two accidents,
$5,000 only for a second accident that had caused some degree of aggravation.

[28]        
The defence suggests that the appropriate range of non‑pecuniary
damages is $40,000 to $50,000.  Reliance is placed upon Perry v. Ismail,
2012 BCSC 123, Burton v. Insurance Corporation of British Columbia, 2011
BCSC 653, and Sandher v. Hogg, 2010 BCSC 1152.  I note that these cases
all deal with soft tissue injuries, possibly less severe than those suffered by
Ms. Villing and none of them involving a very painful and possibly repetitive
treatment regime such as RF rhizotomy.

[29]        
I take some guidance from the Engqvist decision previously cited,
recognizing that Ms. Villing is much younger than the plaintiff in that
case and is facing, probably, a lifetime of some degree of chronic back pain
and a need to manage her lifestyle and constantly be watchful; but also that
she has the possibility of long-term and perhaps permanent abatement of her
facet joint pain through rhizotomies and rehabilitation.  I also need to
account for the changes in Ms. Villing’s personality, though hopefully
this will moderate with successful treatments or with the passage of time.  I
assess her non‑pecuniary damages at $85,000.

[30]        
The defence contended in argument for some reduction on account of an
alleged failure to mitigate.  However, to the extent that Ms. Villing did
not strictly follow her treating physicians’ recommendations I cannot find on
the evidence any causal connection to the plaintiff’s current condition.  There
is simply no evidence, given the nature of the plaintiff’s injuries, that more
frequent therapies or rehabilitation sessions would have made any difference.

[31]        
Past wage loss has been agreed at $1,455.12.  There will be no reduction
for income tax given the plaintiff’s modest wage level.

[32]        
The plaintiff makes a claim for a significant loss of future earning
capacity.  This is based on several different aspects of the plaintiff’s
employability.  First, the plaintiff expresses concern as to whether she will
be able to complete her studies towards her paralegal degree and if she does,
as to whether she will be able to manage the pain of working in a seated
position for lengthy periods.  She testified that at present her back pain is
such that she can barely make it through class.

[33]        
The plaintiff worked as a paralegal for about three months at the
offices of her present counsel.  She found it difficult to sit still for
lengthy periods, and would frequently have to get up and move around.  She
expressed concern that the other employees would wonder why she did so.  (In
the same vein she expressed concern with whether her shifting and stretching
during her classes was disruptive for her classmates.)  She eventually quit
that paralegal position because she felt she could not keep up with the demands
of the position and felt she was not as efficient as she should have been, although
she also said that she was motivated in part by her desire to concentrate on
her studies.  There was no collateral evidence tendered as to her job
performance.  The plaintiff aspires to apply to law school in the future but
wonders how she would cope with four-hour long preparation classes or with the
five-hour long LSAT test.  She did not give evidence of having sought any
special accommodations in her job as a paralegal and she did not give evidence
that she has considered whether she could or would consider obtaining any
special accommodations in, for example, writing the LSAT test.  She stated that
she does not want to be looked at as injured or disabled.

[34]        
She is now working in a different law firm, in an administrative support
position, earning a salary of $36,000.  I inferred from her testimony that the
job is less stressful and is in a position where she finds it easier to
stretch, move around and otherwise care for her back pain when it comes on.

[35]        
It is submitted that the plaintiff may be facing a real and substantial
possibility of not being able to work as a paralegal, leading to an annual loss
of earnings over the course of her working life.  Comparing the average
earnings for paralegals to her present earnings, it is submitted that this
could be a loss of up to $18,000 in salary annually.

[36]        
Second, it is submitted that time off work to recover from rhizotomies
administered every 12 to 24 months over her lifetime could very well lead to a
loss with a present value of $200,000 or more.

[37]        
Third, the plaintiff submits that she has lost the capacity to earn
income from bhangra instruction.  Based on witness testimony it is suggested
that the plaintiff could have charged fees of $50 per month for as many as 50
students at a time.  It is submitted that this loss could continue over a
period of perhaps five years.

[38]        
In broad strokes the plaintiff’s counsel submits that all of these
factors could lead to a loss with a present value of as much as $360,000. 
Adjusting for contingencies, in particular that the number of rhizotomy
treatments could total as few as 10 or 15, it is submitted that a fair figure
for the loss of earning capacity would be $275,000.

[39]        
To this the plaintiff adds an allowance for maternity leave having to be
extended on account of her back pain, in the event that she marries and
fulfills her wish of eventually having two children.  This is submitted to
having a value of perhaps $30,000.

[40]        
The defence contends that there is no proven real and substantial
possibility of a future event leading to a loss of income.  This position was a
result of the defence’s interpretation of Dr. Rickards’ written evidence as to
the RF rhizotomy procedure leading to "no risk of recurrence", an
interpretation I have rejected.

[41]        
As stated in numerous cases, including Rosvold v. Dunlop, 2001
BCCA 1, and Perren v. Lalari, 2010 BCCA 140, claims for loss of earning
capacity are based on the court’s assessment of the contingencies that attach
to hypothetical outcomes that are not merely speculative but are real and
substantial possibilities.

[42]        
With all due respect to the submissions of the plaintiff’s counsel I do
not find that the evidence supports a future earning capacity claim anywhere
close to that contended for.  If the plaintiff undergoes suitable
rehabilitation following rhizotomies, educates herself as to the need to manage
her back and becoming accepting of her condition and the need to seek and accept
accommodations, it may reasonably be expected – with suitable accommodations
being made – that she will be able to undertake the responsibilities of
paralegal.  Dr. Dhawan’s opinion supports this conclusion. But that does
not mean that there will be no loss of capacity.  I find there is a real and substantial
possibility that plaintiff will not have the capacity to assume some employment
positions or some employment responsibilities due to chronic back pain – for
example, positions where there might be an expectation of long overtime hours
being put in to be responsive to the needs of her employer’s clients.  That
risk, while still relatively small, is real and substantial, and is therefore
compensable.

[43]        
There are further compensable losses in respect of the likely need to be
absent from work for extended periods to recover from procedures.  I cannot on
the evidence make an assessment premised on the assumption that the plaintiff
will likely undergo rhizotomies every year or every other year for the rest of
her life, or even that there is a substantial possibility of a loss of the
magnitude that would entail.  The plaintiff’s young age and health, the absence
of any underlying degenerative arthritis and her strong motivation to overcome
her back pain all point to the likelihood of the back pain becoming manageable
with the intervention of a few rhizotomy treatments coupled with education and
rehabilitation.  There is a possibility of more extended treatments being
necessary, but it is one to which negative contingencies attach.  I approach
the quantification of the plaintiff’s loss on the basis that there is a near-certainty
of a future loss of income, as she recovers from these treatments, in the range
of $5,000 to $10,000, in the near-term; a very high probability of further
treatments resulting in cumulative losses totalling in the range of a further
$35,000 to $50,000; and lower probabilities of further losses entailed by
further treatments.

[44]        
There is also some possibility of a need for extended maternity leave in
the event that the plaintiff does become pregnant in the future.

[45]        
The alleged loss of an opportunity to teach bhangra is, in my view,
entirely hypothetical, and I make no allowance for such loss.

[46]        
Bearing in mind that capacity claims are matters of assessment, not
calculation, and that such awards must on the evidence be fair to both parties,
and taking into account all of these hypothetical outcomes, I assess the present
value of the plaintiff’s loss under this head at $100,000.

[47]        
As to the cost of future care, the defence concedes the wisdom of
allowing for the cost of one MBB procedure at $800, and one rhizotomy procedure
at a cost of $7,000, in a private clinic setting so that Ms. Villing can
be assured of at least one procedure before she graduates.  In my view, given
the evidence as to the length of wait times, it is appropriate to make
allowance for two private rhizotomy procedures in the future.  After that, the
plaintiff may have a better idea of the effect of the procedure upon her, of
how long the procedures will have an effect and her recovery time so that she
can book future procedures well in advance, minimize the length of time she
will have to be subject to recurring back pain while she awaits treatments and
minimize the inconvenience of her schedule being disrupted.  I allow the sum of
$14,800 for private procedures.

[48]        
I further allow under the heading of "Future Care" the sum of
$7,500 towards the cost of future fitness memberships, rehabilitation programs
and/or back management education.  The evidence in support of these amounts was
slight but was sufficient, in my view, to justify such an award, particular
coupled with the court’s experience in awarding such amounts in similar cases. 
The amounts claimed as special damages for fitness memberships and
rehabilitation also provide a guide as to the likely future costs.

[49]        
Lastly, special damages were presented in the amount of $5,831.66.  A
$100 charge within this amount for Absolute Physio was apparently paid by ICBC
rather than the plaintiff, and a $30 amount charged by Dr. Gandhi appears
to be a disbursement claim rather than an item of special damages, so the claim
should be reduced to $5,701.66.  I find the amounts claimed to have been
reasonably justifiable, save and except for the mileage charges to and from
Platinum Fitness, which are said to have been based on 144 trips at 11.4
kilometres each, times $.30 cents, a total of $492.48.  It is not clear to me
that the plaintiff could not have found a suitable fitness facility requiring
less travel time.  I reduce that mileage claim by $200, and I therefore award
special damages in the total amount of $5,501.66.

[50]        
In summary, the plaintiff is awarded the following amounts:

[51]        
The plaintiff will also be entitled to her costs at Scale B, unless
there are any particular submissions to be made by counsel as to the issue of
costs.

[52]        
Counsel, anything?

[53]        
MR. GAUTAM:  Yes, My Lord.  There was a ‑‑ there was a
formal offer issued approximately three weeks before trial in the amount of
$177,500 by the plaintiff.  So we seek that the plaintiff should be entitled to
double costs from the date of that offer.

[DISCUSSIONS WITH COUNSEL]

(PROCEEDINGS ADJOURNED AT 9:55 A.M.)

(PROCEEDINGS RECONVENED AT 10:03 A.M.)

[54]        
THE COURT:  Back on the record.  Yes, Mr. Hulley.

[55]        
MR. HULLEY:  My friend advises me that it was served on
May 8th, which was a number of weeks prior to the commencement of trial. 
On that basis I have no grounds on which to disagree with the formal offer.

[56]        
THE COURT:  Okay.  Very well then.  Thank you.  The plaintiff will be
awarded costs at Scale B and double costs from the date of the offer,
May 8, 2015.  All right.  I think that concludes matters.

“A. Saunders J.”