IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Leong v. Besic, |
| 2015 BCSC 2256 |
Date: 20151106
Docket: M134890
Registry:
Vancouver
Between:
Tiffany Leong
Plaintiff
And
Edis Besic and
Sutka Besic
Defendants
Before:
The Honourable Madam Justice S. Griffin
Oral Reasons for Judgment
Counsel for the Plaintiff: | Stephen P. Grey |
Counsel for the Defendants: | Tanya D. Heuchert |
Place and Date of Trial: | Vancouver, B.C. November 2, 3, 4 and |
Place and Date of Judgment: | Vancouver, B.C. November 6, 2015 |
[1]
THE COURT: The plaintiff was a passenger in the rear seat of her
fathers vehicle when it was rear-ended on August 6, 2011.
[2]
The accident happened when a row of cars was stopped at a red traffic
light. The defendant Mr. Besic was in the row of cars as the driver of his
mothers car, behind the vehicle driven by Ms. Leongs father, which in
turn was behind a number of other cars.
[3]
When the light turned green, the defendant Mr. Besic lifted his
foot from the brake of his car, and his car began to roll forward. Sunlight was
in his eyes and he adjusted the sun visor. He did not see the vehicle in front
stop. When he looked again and saw the vehicle ahead was stopped, he braked,
but it was too late to avoid rolling into it. The plaintiff was jolted when the
vehicle was hit.
[4]
Liability for the accident is admitted.
[5]
The plaintiff claims damages for the injuries suffered in the accident. She
says the accident caused her a one-year delay in completing her university
studies and a future loss of earning capacity.
[6]
The defendants concede that the plaintiff suffered soft issue injuries
to her neck and back, as well as headaches.
[7]
However, the defendants say that the injuries were minor and a temporary
exacerbation of similar injuries she had sustained in two prior motor vehicle
accidents. The defendants say that the plaintiff has not suffered a loss of
future earning capacity.
Facts Regarding the Plaintiffs Health and Injuries
[8]
I will now review some of the facts regarding the plaintiff, her health,
and injuries.
[9]
The plaintiff was 19 years old at the time of the accident and had just completed
her first year of university.
[10]
The plaintiff was involved in two prior motor vehicle accidents, one on
September 12, 2000, and the other on October 21, 2005. She has had the same
family doctor since birth, Dr. Ho, who prepared medical-legal reports
regarding the prior accidents and regarding the 2011 accident. Dr. Ho last
saw the plaintiff before the subject 2011 accident on her visit to his office
in May 2010.
[11]
Dr. Hos medical report in May 2010 reveals the following:
Miss Tiffany Leong was seen initially in my office on
September 21, 2000, the same day of the accident. … Physical examination
revealed spastic tenderness on palpation of the soft tissues involving her
right temple, right eyebrow, right axillary abdominal region, right flank, and
lumbosacral region. Range of movements of the lumbosacral spine was decreased,
due to muscle spasm.
… When reassessed in the office on October 11, 2000, she
claimed that she experienced posterior neck pain after doing her homework. She
missed only one day of school after the accident.
…
The diagnoses of the above motor vehicle accident injuries
include: (1) Post-traumatic bilateral frontal temporal headaches,
especially right upper eyebrow region; (2) Soft tissue strain of the
posterior cervical spine, trapezius muscles, and shoulders; (3) Soft tissue
strain involving the right abdominal axillary and bilateral flank region:
(4) Acute soft tissue strain of the lumbosacral region, right hip and
posterior thigh.
…
… When reassessed in my office on February 14, 2004, she
still experienced occasional bilateral frontal-temporal headaches, mild pain
and discomfort affecting her shoulders and right hip region.
Tiffany was involved in a second motor vehicle accident on
October 21, 2005. … She was the back seat passenger of a 2006 Toyota. Their
car was stopped in front of the red light and rear-ended by another motor
vehicle. … Immediately after, she experienced occipital headaches. Next day,
she claimed to experience pain and discomfort affecting her posterior neck,
shoulders, and back.
Tiffany visited my office initially for assessment of this
motor vehicle accident on October 25, 2005. She complained of occipital
headaches, pain and stiffness affecting her posterior neck, shoulders, mid and
lower back region. Physical examination at the time revealed a thirteen year
old girl in some distress. There was spastic tenderness on deep palpation of
the soft tissues involving her posterior cervical spine, trapezius muscles,
shoulders, interscapular and lumbosacral region. Range of movements of the cervical
and lumbosacral spine was mildly decreased.
The diagnoses of the above motor vehicle accident injuries
include: (1) Post‑traumatic occipital headaches, (2) Acute soft
tissue straining injury to the posterior cervical spine, trapezius muscles, and
shoulders; (3) Soft tissue strain of the interscapular and lumbosacral
region.
…
When assessed in my office on January 19. 2008, Tiffany
complained of right lateral neck and upper back pain. She was a Grade 10
student at the time. …
Tiffany was most recently reassessed in my office on May17,
2010. She is a Grade 12 student at the present. She claims that she gets tired
easily when doing her academic work. Occasionally she experienced occipital and
upper neck pain. She also experienced bilateral lower back pain at times.
Physical examination revealed a seventeen year old girl in no distress. There
was mild spastic discomfort on deep palpation of the soft tissue involving the
occipital, upper cervical region, and para-vertebral muscles of the lumbosacral
spine. Range of movements of the cervical and lumbosacral spine were within
normal limits.
In summary, Tiffany is recovering well from the soft tissue
injuries from the two motor vehicle accidents. Aside from occasional mild aches
and discomfort involving the posterior neck and lower back, she has no other
symptoms. She is able to carry out all her daily activities and participate in
physical education classes without any limitations.
Her prognosis is good. I do not
anticipate any serious complications or permanent disability as a result of the
above motor vehicle accident injuries. Occasional mild discomfort involving the
posterior neck and lower back might occur. They should resolve with time and
conditioning exercises.
[12]
The plaintiff did not see Dr. Ho again as a patient until the day
of the 2011 accident.
[13]
As for the plaintiffs evidence of her health prior to the 2011
accident, she testified it was pretty normal, nothing different from before. The
plaintiff was not asked sufficient questions to explain what that meant; that
is, what her health was like before the accident. She simply added that she was
pretty active, taking dance classes in school, as well as outside
recreationally.
[14]
The plaintiff has long had a hobby of dancing. However, this does not
really answer the question of what her general health was like, because she
continued to dance after the 2011 accident.
[15]
The plaintiff did not give evidence in chief about her prior health
beyond this. She said nothing about whether or not she occasionally suffered
from headaches and occasional neck and back pain, whether from her prior motor
vehicle accidents or other causes, after this was noted in Dr. Hos
medical report in May 2010.
[16]
The plaintiff completed high school in 2010. There was no evidence about
how well she did in high school, but she did well enough to be admitted to the
University of British Columbia program for nutritional sciences. She enrolled
in 2010 with a full‑time course load, which she described as four or five
courses a semester. She thought she would finish the program in four years. After
she started, she learned that a sub-specialization dietetics program would take
longer to finish than four years, and she learned more about that program and
decided she was not interested in that program. I take from this that she was
initially open to considering the program then ruled it out.
[17]
The plaintiff was not asked to explain why she was not interested in the
dietetics program, was it the nature of the career or something else? I digress
to point out that this is similar to her evidence that following graduation in
the spring of 2015, she has not applied for any positions linked to her degree
and has not seen any that suit her interests. This evidence was also not
explored with her. What are her interests? I was left not knowing anything
about her understanding of her academic abilities and aptitudes and career
goals.
[18]
In the summer of 2011, the plaintiff continued her studies in a summer
session at University of British Columbia. She did not take any employment
during her schooling in 2011.
[19]
After the accident occurred in August 2011, the plaintiff and other
family members who were in the car with her went to Dr. Ho the same day.
[20]
The plaintiff remembers having headaches and pain on the back of her
head. In the days following the accident, she felt more stiffness in her neck
and some back pain. At trial, she could not recall where on her back. Over the
few weeks after the accident, she felt the symptoms got worse. The headaches
fluctuated, sometimes only lasting a minute or two and sometimes lasting a
whole day.
[21]
At Dr. Hos recommendation, the plaintiff went to physiotherapy. She
went 27 times from August 16, 2011, to January 9, 2012. She felt better
after the sessions, which she described as having less tightness in her lower
back and relief in her neck. She also said she felt that if she let some time
pass between physiotherapy sessions, her symptoms would worsen.
[22]
The plaintiff did not lose any time at school due to the 2011 accident. She
started her second year in September 2011, taking four courses in the first
term, the same as the previous year. She took four courses in the second term
and two online courses. One of the online courses was fundamentals of cell
biology, a course she had failed in the first term of her second year, but
passed in the online course.
[23]
The plaintiff testified that she felt that she failed the course earlier
because it was hard to sit for three-hour lectures or exams and to study all
day, because she had back and neck pain and she would be focusing on getting
comfortable and not focusing on the lesson. She agreed with a leading question
by her counsel that she felt she would have been able to apply herself more if
she had not had these symptoms.
[24]
Unfortunately, this evidence was so subjective and without context that
it was difficult to give it much weight. No one likes to fail a university
course. Failing a course can cause shame or embarrassment and a feeling of
letting ones family down. University courses are much more difficult than high
school courses, and some courses are much more difficult than others. It would
not be unusual for a young student to blame failing a course on various
external factors, including factors that interfered with study. I have no
difficulty in accepting that the plaintiff felt some ongoing discomfort from
her injuries, but what I have difficulty with is accepting that this is what
led her to fail the course.
[25]
It appears from other marks that the plaintiff had difficulty with
several science courses. This suggests that she might lack the aptitude and
inherent ability to do well in these courses. Not every student does well in
sciences. For example, in her first year at university, which was before the
accident, she obtained a grade of 56% or C minus in structural chemistry, when the
class average was 76%; a grade of 55% or C minus in genetics, compared to the
class average of 65%; a grade of 59% or C minus in integral calculus, compared
to the class average of 69%; and a grade of 60% or C in unicellular life,
compared to the class average of 70%.
[26]
I note that in Dr. le Nobels report, when he set out the history
he took from the plaintiff, he wrote that she had failed one course in 2011 in
the fall, but noted, She had average marks in the pre-requisites for the
course which she then failed. The plaintiff was not asked about this in her
evidence.
[27]
When I look at her transcript, it looks like she had below average marks
in some courses, and I do not know which ones were pre-requisites for the
course that she failed.
[28]
When the plaintiff retook the failed cell biology course in her second
year, she received a mark in the C minus range. She also received a C minus in
organic chemistry, a lecture course, obtaining a grade of 55 compared to the
class average of 66, but did better in the lab course with a grade of 76 or B
plus, compared to the class average of 73. There was no evidence as to the
amount of standing or bending in the lab course.
[29]
Thus, it is not surprising that, when led in her evidence, the plaintiff
attributed failing a science course to her injuries, but this is, with respect,
not enough on its own to be persuasive.
[30]
Regardless, the plaintiff admitted that she completed all she intended
to complete in her second year at UBC. Failing and retaking the cell biology
course did not therefore delay her studies.
[31]
As for her other activities, initially the plaintiffs evidence was that
she did not engage in dance activities in the first term of her second year of
university due to a concern she had of reinjuring herself and due to her busy
course schedule. However, she was unable to compare her level of dancing to the
prior year, because she could not recall how much dancing she had done. She
knew she had cut back on dancing as compared to high school. In
cross-examination, it appeared that the plaintiff was uncertain as to how much
dancing she did in the first term of her second year at university.
[32]
Dr. Hos records show that in January 2012, the start of the second
term of her second year at university, the plaintiff was reporting dancing hip
hop three times a week. The plaintiff admits this.
[33]
At the end of the plaintiffs second year at university, she took
additional courses in the 2012 summer session, just as she had done in the
first year and prior to the accident. By the end of the second year of
university, which was the first year following the accident, she was ahead in
the number of credits she had earned from her courses as compared to the course
requirements for her degree.
[34]
The plaintiffs dancing picked up throughout that year, including
dancing with different recreational dance groups and putting on performances in
the second half of 2012. In addition to regular practices of an hour and a
half, two or three times a week, before a performance the plaintiff would be
involved in four-hour dance practices.
[35]
At trial, three videos were shown of the plaintiff performing hip hop
dancing with dance groups. These were filmed in 2012 and 2013.
[36]
The plaintiffs movements in the videos appear fluid and loose.
[37]
As held in Nair v. Cindric, 2013 BCSC 2128 at paras. 44 to
45, the utility of photographs and videos in a case of this nature is limited,
in that these images usually only are a snapshot in time. They do not capture
pain or the after effects of the activities portrayed in the images.
[38]
The plaintiff did testify in chief that after the accident, she could
not do jazz turns and did not have the same intensity and power as she used to
have, nor was she able to do as many sit-ups and push-ups.
[39]
However, the plaintiff did not testify that her dancing activity in the
videos was restricted as compared to how she was before the accident. She did
not testify that she had to cut short her dance performances by 2012. She did
not testify that she suffered pain setbacks during or after participating in
dancing or participating in rehearsals in 2012 and after.
[40]
I do note that in October to December 2012, the plaintiff sought out
eight additional physiotherapy sessions. She did not relate this to her dancing
longer hours preparing for her video dance performances, but the timing
suggests this could be related. She said she sought this treatment because her
pain was not going away, and so she went back to her doctor who recommended
further physiotherapy. Again, she felt better after physiotherapy for a while,
but said that when she stops, her symptoms act up. To what degree her symptoms
act up is not clear, but she continued dancing and did not report missing any
school.
[41]
The plaintiff was not asked to describe the degree of her pain in any
relative terms; whether it was a soreness and stiffness and mildly
uncomfortable, or more acute and severe. She used the words stiff or tight
to describe how she felt. The inference from all of her activities and the lack
of any evidence that she had to take extraordinary measures is that when she
felt pain, it was a discomfort, rather than a debilitating pain.
[42]
In December of 2012 until February 2013, the plaintiff obtained a job as
a charity canvasser working at a mall for seven to eight hours a day, three
days a week. She did not suggest that this exacerbated her symptoms.
[43]
The plaintiff appeared to have a normal second year of university and
third year of university.
[44]
As of February 2013, which was when she was in the second term of her third
year of university, the plaintiff reported to her family doctor, Dr. Ho,
that she felt her symptoms were 70% improved.
[45]
By the time she finished that second term of third year in the spring of
2013, she had 94 credits, as compared to her degree requirement of 93 for that
stage of her education.
[46]
The plaintiff decided in the summer of 2013 not to take additional
courses in the summer session, unlike prior years. This was not explained in
her evidence. However, she did take an internship followed by paid employment,
at a chocolate manufacturer, and so it is likely she took a break from school
so that she could get this work experience. This job continued when she
returned to school, although at reduced hours. The plaintiff continued working
there until July 2014.
[47]
At the chocolate manufacturer, the plaintiff worked in the factory and
the office, including computer work. She sometimes worked full-time hours. She
did not seem to have any trouble doing the work. She said she sometimes felt
she was capable of lifting multiple boxes of chocolates, but sometimes she
would ask for help. She felt if she was on the computer all day, it might
aggravate her neck and back pain, or that might happen if she had to bend over
for products on a lower shelf.
[48]
The plaintiff also did volunteer work at a hospital and food bank,
helping and handing out food.
[49]
Starting in the summer of 2013, and continuing in the summers of 2014
and 2015, the plaintiff also worked to help her cousin in his hot dog vending
stand. This business operates during special events like Canada Day, and could
be operating around eight hours of the day. The plaintiff would help with
setting up, serving, and tearing down the cart. She did not say that this work
exacerbated her symptoms.
[50]
Following the summer of 2013, the plaintiff began her fourth year of
university at UBC. She was not asked any questions in her direct evidence about
that year at university or her choice of courses.
[51]
After that year of university, she took an exchange course in Costa Rica
in the late spring or early summer of 2014.
[52]
When she returned, the plaintiff found out that an expert physiatrist
retained by her lawyer, Dr. le Nobel, had recommended she attend a
rehabilitation clinic and that ICBC had approved paying for it. The plaintiff
thus attended the Karp Rehabilitation Clinic from June 2014 to September 2014.
[53]
While there, the plaintiff was engaged in exercises and stretching and
her symptoms improved.
[54]
The plaintiff enrolled in an exchange program with a Swedish university,
going to Sweden in September 2014 for the winter term of her fifth year of
university. She said the long plane ride was difficult, but she did not expand
upon this. I do not know if it was much more difficult than what is experienced
by the average person travelling economy fare on an overseas flight.
[55]
While in Europe, the plaintiff travelled a great deal, often alone and
carrying a backpack. She said it sometimes was difficult and she had neck and
back pain. I do not know the weight of the backpack or how long she carried it
before she would have some pain. She did not expand on how long the pain would
last. She did not say that she limited her travel because of it.
[56]
At some point in her later years at university, the plaintiff decided to
apply to do a minor degree in kinesiology. She could not apply until she was in
her third year. She was not initially accepted into the courses, but when she
was accepted, whenever this was, it was her intention to take the courses at
the end of her nutritional science courses. It appears she took the kinesiology
courses in the second term of her fifth year, namely the term starting in
January 2015 and ending in the spring of 2015. This was also after she had
returned from Sweden.
[57]
The plaintiff graduated in the spring of 2015 with a bachelor of science
in food nutrition and health, with a minor in kinesiology.
Loss of Earning Capacity
[58]
In support of her loss of earning capacity claim, the plaintiff was
asked in direct why it took her five years to complete a university degree
rather than four. She testified to the effect that she found it difficult
to take so many courses, sitting in lectures for so many hours, and sitting in
exams, plus sitting at the computer, so she eventually decided to take less
courses in a semester.
[59]
This evidence was very vague. The plaintiff was ahead of her required
credits as of the end of her third year of university, the spring of which was
two years following the accident, the spring of 2013. She had told Dr. Ho
in February that year that she felt her symptoms were 70% improved. She
described her pain in August 2013 as mild pain and stiffness.
[60]
I do not doubt that the plaintiff felt some mild pain and stiffness
after long hours sitting. However, it is a long bow to draw from this evidence
that she was unable to complete university in four years had she wanted to do
so. The plaintiff did not point to her transcripts which were in evidence and
explain what courses she deferred taking, or where she could have crammed in
all of the courses she took within four years instead of five years. She did
not describe her typical week or day at school, explaining how many hours she
spent in lectures or studying, or what a full course load was compared to
whatever reduced load she claims to have taken. She did not explain any steps
she did to stretch or stand or move around while studying. She did not explain
how her choices to take employment and student exchange trips and then a minor
in kinesiology at the end of her degree courses played into the length of time
it took her to finish her degree.
Credibility
[61]
I pause to note that the defendants suggest that the plaintiff was not
credible.
[62]
I found that the plaintiff was a respectful witness who testified
sparingly and shyly. The same can be said of her parents who testified. From their
demeanour, I suspect the members of this family are very respectful of
authority. Reticence in answering questions expansively should not be
misconstrued as a credibility issue.
[63]
I do not conclude that the plaintiff was insincere or deliberately dishonest
in her evidence. On the contrary, she appeared easily suggestible, as though
she wanted to please. The problem I had with her evidence was the way in which
it was called in direct was so vague and general and lacking in detail, it did
not leave me with any confidence as to its reliability on key issues regarding
her past health and symptoms before the accident, and regarding the severity of
her symptoms in the years since the accident, and the impact of her symptoms on
her schooling and future career choices.
[64]
The plaintiff was a young woman at the time of the accident and remains
so. As is the case with many young people, she was not driven in a certain
career path when she entered university, and she remains undecided about what
she wants to do in life, unsure of her future career choices, other than she
wants to do something that interests her.
[65]
I accept that the plaintiff suffered some ongoing soft tissue injuries
to her neck and back as a result of the accident in 2011. However, I find that
her evidence, at best, establishes that by 2013, her symptoms with long periods
of sitting were that she could still experience some mild discomfort, some
headaches, neck pain, and back pain, but I do not know how long those periods
of sitting were before she felt discomfort. The evidence does not suggest that
the degree of discomfort was more than mild. The testimony was so thin that it
fell short of persuading me that this discomfort was significant and that it
caused her to delay her studies.
[66]
The plaintiff retained an expert, Dr. John le Nobel, a specialist
in physical medicine and rehabilitation, to examine the plaintiff. Counsel for
the plaintiff submits that Dr. le Nobel supports the conclusion that
the plaintiff suffered a delay in her studies because of her injuries. But it
was clear from his evidence that he simply was relying on the plaintiffs
advice to that effect. He, of course, did not examine her transcripts or have
the context of all of the other activities that she was doing, as we have at
trial.
[67]
No physician recommended that the plaintiff reduce her course load at
university due to her injuries. The plaintiff has known her GP since birth and Dr. Ho
did not suggest that she needed to reduce her course load or change career
paths.
[68]
It can be said that the plaintiffs expert, Dr. le Nobel, was
able to draw more information from the plaintiff than what she provided in the
witness stand. He drew a number of conclusions about her condition based on her
history, as she told it to him. As one example, Dr. le Nobel reported
that she told him her fitness level had decreased since the accident and she
had gained weight. He therefore attributed this to the accident, causing her to
be deconditioned and gain weight, which in turn caused her problems, including
knee problems.
[69]
But the plaintiff was not asked about this in the witness stand and did
not provide supportive evidence that she became less physically active or less fit
after the accident.
[70]
The plaintiff did not testify about knee pain or weight gain. Her weight
gain of a reported six pounds noted by Dr. le Nobel did not appear to
leave her at a weight more than a pound different than noted in Dr. Hos
pre-accident records as of January 2008.
[71]
A medical expert does not prove the truth of what a plaintiff says during
a clinical exam, only that the plaintiff has reported something. The plaintiff
generally has to testify at trial as to the truth of the symptoms and life
circumstances which she reported to the doctor. Here the plaintiff was not
asked the questions to elicit much information from her in the witness stand as
to the nature of her injuries and how they affected her in comparison to before
and after the accident.
[72]
The medical doctors who did testify did not themselves get entirely
complete information from the plaintiff, perhaps also because of her reticence
to talk. For example, Dr. le Nobel did not know that she had suffered
similar symptoms from the two prior motor vehicle accidents, which symptoms she
was still reporting to her physician as late as May 2010.
[73]
Likewise, Dr. Ho was under the impression that the plaintiff was
unable to resume dancing for more than one and a half hours a week after the
accident and had difficulty doing turns when dancing. In fact, by 2012, at
least, she was able to participate in two or three rehearsals of this length
per week, plus longer four-hour rehearsals in advance of dance performances. The
videos of her dance performances do not reveal difficulty doing turns, at least
in that style of dancing.
[74]
In cross-examination, the plaintiff was unable to remember her symptoms
from her 2005 motor vehicle accident, and whether she had some of the same
symptoms of headache, sore neck, shoulders, and back, as she complains of now. This
can in part be due to her young age at the time of that accident, but I note
she did see Dr. Ho in May 2010, just over one year before the subject
accident, when she reported some symptoms in those areas and similar to those
reported after the 2011 accident. She would have been approximately 18 at the
time she saw Dr. Ho in May 2010.
[75]
We know from Dr. Hos medical reports written in relation to the
prior accidents that some of the symptoms she has experienced after the 2011
accident are similar to those she experienced before: headaches and some neck,
shoulder, and back pain.
[76]
What is significant about the plaintiffs inability to remember whether
the symptoms she complains of now are similar to what she felt after the
previous accident is that she did not say that she knew or was certain that her
injuries now are much worse or that she feels much worse than she felt before. The
inference is that by the time of this trial, her injuries have come close to
resolving and what symptoms she might occasionally experience are fairly minor,
since they do not stand out in her mind, just as her pre-accident symptoms had
largely resolved and were fairly minor.
[77]
This inference is supported by the evidence of Dr. Ho, which I have
already touched on, namely that she was 70% improved in February 2013. He also
noted this in August 2013, and described her then as still experiencing
headaches and mild pain and stiffness, but that her range of motion had
improved. He noted that as of March 1, 2014, the plaintiff reported that her
back symptoms were much improved. This suggests that her mild pain and
stiffness was even milder by 2014, and potentially improved even more than by
70%.
[78]
It is worth noting that when Dr. Ho wrote his May 2010 report in
relation to the two prior accidents, which had occurred in 2000 and 2005, he
was of the view that the plaintiff was continuing to show some symptoms, but he
felt they would eventually resolve. His testimony at trial was to the effect
that because she did not come back to see him again until after the August 2011
accident, it is likely she was symptom-free.
[79]
I find an available and likely inference, on the whole of the evidence,
is that the earlier injuries were intermittent and indeed minor, but that the
2011 accident exacerbated them and this exacerbation has also subsided over
time.
[80]
The defendants fairly admit that the August 2011 accident likely
aggravated the plaintiffs pre-existing problems for a while.
[81]
In support of the conclusion that the 2011 accident injuries were not
serious and receded over time, the evidence has already been noted, namely: the
plaintiff did not lose any time at school or decrease her course load in 2011;
by January 2012, she was dancing three times a week; by February 2013, she
told her GP she felt approximately 70% better; her GP described her as
having mild pain and stiffness in August 2013, and as reporting being much
improved in March 2014.
[82]
Dr. Ho provided the opinion that since the plaintiff still has
persistent symptoms, her prognosis is guarded. However, his opinion is that he
does not anticipate any serious complications in the future as a result of the
injuries, and with further time and conditioning exercises, the symptoms might
further improve. He does note she is more prone to injuries of the affected
soft tissues in the future.
[83]
I return to the loss of earning capacity claim.
[84]
The plaintiffs claim for loss of earning capacity is that her injuries
delayed her graduation from university, and that there is a real and
substantial possibility her continuing pain symptoms will impair her ability to
pursue all potential careers or render her less attractive to prospective
employers.
[85]
As by now is probably clear, I am not persuaded on the evidence that the
accident caused the plaintiff to suffer a delay in completing her education and
a corresponding delay in accessing the jobs market.
[86]
The plaintiffs evidence as to her schooling, choice, and timing of
courses, and pre-existing academic aptitude was either absent or too vague to
persuade me that the reason she took five years to complete her degree was
because of the accident. Inconsistent with the notion that her accident
interfered with her schooling is the fact that the plaintiff did not fall
behind in her course load in the years immediately following the accident when
the effects from her injuries were more pronounced.
[87]
I have already addressed the fact that the plaintiff failed one course
in the term immediately after the accident and had to retake it. The failure of
this course did not prolong the time needed to obtain her degree, as she made
up the course right away.
[88]
The plaintiffs evidence that the accident caused her a one-year delay
in finishing university is also unconvincing in the face of all the evidence as
to the many activities she was involved in undeterred by any injuries. She was
enjoying many activities, including dancing, going on student exchanges, and
was starting to seek out forms of employment, paid and voluntary, in her latter
years of university. She also decided to add a minor in kinesiology in the
latter years of university.
Career Limitations
[89]
Likewise, the plaintiffs evidence as to her current career aptitude and
her future career choices was extremely thin.
[90]
The plaintiff claims a loss of earning capacity of $100,000, on top of
the claim for delay in her university completion. There is no evidence to found
this claim.
[91]
Other than working one day for Elections Canada, the plaintiff has not
been employed since graduating from university in the spring of 2015. She has
not sought out employment in a field related to her degree.
[92]
At trial, the plaintiff testified that she has recently started to look
into two possible alternative careers, making initial inquiries about taking
courses in nursing or medical sonography. She has not yet reached the stage of
deciding she is interested in these careers. It was illustrated in
cross-examination that she had not taken a serious look at these courses in
advance of completion of her university degree, and so any delay now in
becoming enrolled in these courses, should she qualify, is for that reason.
[93]
Counsel for the plaintiff argues that these potential future careers
will not be available to the plaintiff because of her physical limitations.
[94]
With respect, the evidence is far from establishing any real possibility
that the plaintiff would have found these careers of interest to her and would
have qualified for the required training absent the accident. There is no
evidence from a medical or vocational expert stating that there is a real
possibility that the plaintiff would be unable to perform those jobs because of
her injuries, nor is this a common sense inference that can be drawn, given the
paucity of evidence.
[95]
The defendants argue there is no expert evidence which links the plaintiffs
injuries to a loss of possible career choices that would otherwise have been
possibly pursued by her or available to her.
[96]
In response, counsel for the plaintiff points to certain excerpts from Dr. le Nobels
reports.
[97]
In his report dated March 4, 2014, at para. 23, Dr. le Nobel
wrote:
Tiffany Leong is deconditioned, based
on her account of reduced activity level and reduced activity tolerance over
the past two years, seven months and more. She is less capable of carrying out
her hours of study and her recreational dance and fitness, than was the case
before August 6, 2011.
[98]
In his report of June 4, 2015, at page 1.4, Dr. le Nobel wrote:
Tiffany Leong is deconditioned, based on her reduced activity
level and reduced activity tolerance and weight gain over the past three years,
nine months and more. She has had limited exposure to supervised active
rehabilitation.
Tiffany Leong is less capable
with her avocational tasks and recreational athletics. She is less efficient
with her study. In these respects she is disabled.
[99]
Dr. le Nobels conclusions were based on a history told to him
by the plaintiff that was not led in evidence at trial, namely that she was
unable to exercise as much due to her injuries and became deconditioned. He
also based his conclusion on his understanding that she suffered a number of
symptoms, but several of these she did not testify about at trial. Dr. le Nobel
notably did not give the opinion that the plaintiffs condition and symptoms
reduced her earning potential.
[100] The weight
of Dr. le Nobels opinions were seriously undermined at trial due to
the factual assumptions of his opinions being undermined, specifically because:
first, the plaintiff did not tell him she had previous symptoms similar to
those experienced after the 2011 accident; and second, the plaintiff did not
testify at trial as to the truth of many of the things she apparently told Dr. le Nobel.
I find therefore that Dr. le Nobels evidence does not support a
conclusion that the plaintiff has suffered a loss of earning capacity.
[101] I have
considered carefully the plaintiffs very young age and the fact that she has
not yet settled into a career path. Her claim should not be prejudiced by the
fact that, due to her young age, she has no employment or career history to
point to. But equally, her claim cannot be based on speculation.
[102] The plaintiff
does have a partial work history post-accident.
[103] The plaintiff
said she lost some time at work at a chocolate factory due to pain, but she did
not provide sufficient details to support this. There was no evidence as to the
date this occurred, no description of the pain, and whether there was some
event that triggered a stronger pain reaction than usual and how it was that it
rose to a level that it kept her at home or delayed her from coming to work. She
has advanced no claim for past income loss.
[104] I conclude
there is insufficient evidence from which I can draw the inference that the
plaintiff fits into any of the four categories identified in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at para. 8. The evidence does not support a
conclusion that there is a real and substantial possibility that the plaintiff
is less capable overall from earning income in all kinds of employment, unable
to work in jobs that were previously open to her, less marketable to employers,
and less valuable as an employee due to her injuries.
[105] This case
is unlike cases where the injuries seriously impact a plaintiffs life, in
contrast to a case like Guthrie v. Narayan, 2012 BCSC 734 at para. 29,
one authority relied upon by plaintiffs counsel. Here the plaintiffs pain and
discomfort to the extent caused by the accident are of such a minor nature
that I am not persuaded there is a possibility these symptoms will affect her
earning capacity.
[106] I
therefore conclude that the plaintiff has failed to prove a claim for damages
for loss of earning capacity.
[107] There is
no claim for past wage loss or for future care costs.
Mitigation
[108] Before I
turn to non-pecuniary damages, I will deal with the issue of mitigation.
[109] The
defendants argue that the plaintiff was given some recommendations for exercise
which she did not completely follow, and there remains a possibility that if
she had done so, her symptoms would have resolved to an even greater degree.
[110] I am not
persuaded that the plaintiff failed to mitigate. She was a full-time student
and was doing some activities, as well as following medical advice to engage in
physiotherapy and take painkillers and anti-inflammatory medicine at times. She
went to the Karp Rehabilitation Clinic as well.
[111] Not every
patient will have the discipline and stamina to follow every piece of advice on
exercise and treatment, but that does not mean they are unreasonable.
Non-pecuniary Damages
[112] I turn to non-pecuniary
damages, which the plaintiff is entitled to for her pain and suffering.
[113] In the immediate
aftermath of the accident, the plaintiffs symptoms were no doubt worse than
they are now and included headaches, back and neck pain, and sleep loss.
[114] Because of
her injuries, the plaintiff has been required to undergo numerous treatments,
including physiotherapy, a rehabilitation clinic, and pain medication. One of
these medications was a prescription pain medication, Celebrex.
[115] The
evidence reveals that the plaintiff has had an active life since the accident,
commensurate with her age, travelling on student exchanges, backpacking in
Europe, taking fun trips to Las Vegas, and taking part in dance activities that
she enjoys. She has engaged in some recreational sports activities with
friends, including canoeing and kayaking, taking part in a five-kilometre run,
and going snowboarding one weekend. Despite falling when snowboarding, her only
complaint was of stiff thighs, and she did not complain of an exacerbation of
her injuries.
[116] The
plaintiff did not testify that after engaging in these activities she paid for
it in terms of increased pain and exacerbation of her symptoms, with the
exception of what I have already mentioned, in terms of finding the plane trip
to Europe difficult and having some pain when backpacking.
[117] The
plaintiff did not testify that she had to turn down any recreational activities
with her friends or opportunities to travel due to her injuries.
[118] The
plaintiff does say that she used to sleep on her side and now is restricted to
sleeping on her back.
[119] I accept
that the plaintiff still occasionally suffers from an exacerbation of
neck and back pain and headaches caused by the 2011 accident, and there is
a reasonable chance this will continue. The whole of the evidence leads me to
conclude that this pain and symptoms are mild.
[120] I conclude
that the plaintiffs pain and suffering caused by the accident has minimally
interfered with her life, and if she has any remaining symptoms fluctuating
from time to time, in the spectrum of pain they will be more on the mild
discomfort end rather than the severe disability end of the spectrum.
[121] Counsel
for the plaintiff seeks non-pecuniary damages of $75,000. However, this is
based on his position that the plaintiffs injuries are more serious than I
have found on the facts. Even considering the plaintiffs young age, I consider
that award would be disproportionate, given the minor nature of her injuries
and the fact she can continue to engage in a wide range of activities that give
her enjoyment in life.
[122] The
defendants submit that an award of $30,000 to $40,000 in non-pecuniary damages
is appropriate.
[123] This case
is much like Nair, in which $30,000 was awarded in non-pecuniary damages.
[124] Taking
into account the plaintiffs injuries, given her young age, and given the fact
that so little is known about her future career path, I award $40,000 in non-pecuniary
damages. I am satisfied that this award will adequately compensate her, should
she choose a career that puts additional stresses on her body.
[125] With this
award, the plaintiff will be able to make some purchases to help her reduce
discomfort. For example, she might in the future decide to buy a desk that
allows for standing or sitting, so that she can shift positions and not end up
sitting in front of a computer for too many continuous hours. There may be
other aids that will assist her in changing position and reducing discomfort
from long sitting which, although not medically necessary, will increase her
enjoyment of life and minimize any flare-ups of pain.
Special Damages
[126] The plaintiff
claims special damages of $2,096.60.
[127] I find
that the amounts the plaintiff spent on anti-inflammatory or pain medication
and physiotherapy was medically justified. These expenses total $1,625.
[128] I find
there was not medical justification for the other expenses she incurred.
Conclusion
[129] In
conclusion, the plaintiff is awarded $40,000 in non-pecuniary damages, and
$1,625 in special damages.
[130] That
concludes my reasons.
[DISCUSSION]
[131] THE
COURT: The parties are at liberty to seek a further hearing before me on
costs, if they so desire.
The Honourable Madam Justice S. Griffin