Middleton v. Morcke and Lee

2007 BCSC 804 Middleton v. Morcke and Lee

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Middleton v. Morcke and Lee, 2007 BCSC 804 Date: 20070606 Docket: M045173 Registry: Vancouver Between: Carrie Middleton Plaintiff And Karen Morcke Defendant and Docket: M045174 Registry: Vancouver Between: Carrie Middleton Plaintiff And Myounghi Lee Defendant Before: The Honourable Madam Justice Stromberg-Stein Reasons for Judgment Counsel for the Plaintiff: C.R. Bacon Counsel for the Defendant: John Noble Date and Place of Trial: May 7 - 11, 2007 Vancouver, B.C. Background [1] The plaintiff, Carrie Middleton, was involved in two motor vehicle accidents: one on May 14, 2003, and the other on December 30, 2003. Both were relatively minor rear-end collisions and neither of the other drivers were injured. In the first accident, the impact was a significant thump; damage to the two cars totalled $7,500. The second accident involved a touching of bumpers; there was no monetary damage as a transfer of paint on the plaintiff's bumper was buffed off. Position of the Plaintiff [2] It is the position of the plaintiff that the accidents have impacted her life by changing her from a happy, vibrant, active young woman before the accidents, to a depressed, pained, restricted, limited person afterwards. The plaintiff seeks damages in the following amounts: general damages, $80,000; loss of earning capacity, $150,000; special damages, $9,044

(as agreed); wage loss, $370 (as agreed); and cost of future care, $15,000. Position of the Defendants [3] The defendants, Karen Morcke and Myounghi Lee, admit that the plaintiff was injured in the accidents and that she has experienced pain and has spent some money on her recovery. However, the defendants argue her ongoing complaints are due to her failure to mitigate her damages: on the physical side, by not exercising properly; and on the psychological side, by declining to follow medical advice by refusing to take biofeedback, group therapy or anti-depressant medication. It is the position of the defendants that the plaintiff should be awarded $30,000 for pain and suffering; $9,044 for special damages; $370 for past income loss; and $1,000 for cost of future care, limited to five prolotherapy sessions. The defendants submit there should be no award for loss of earning capacity or, in the alternative, that it should be less than $10,000. Global Assessment of Damages [4] Both parties agree a global assessment of damages is appropriate, since the second accident only aggravated the plaintiff's injuries received in the first accident. Both parties ask the Court to apportion a percentage of damages attributable to each accident for the purpose of Rule 37 (Offer to Settle) of the Rules of Court. In that regard, the defendants seek to apportion damages for the first and second

accidents at 75%/25%; the plaintiff seeks to apportion damages at 50%/50%. The Plaintiff's Pre-Accident Condition [5] Prior to the first accident, the plaintiff was a healthy woman with no disability or pain. [6] The plaintiff had no functional limitations before the first accident. She was physically active, participating in biking, hiking, golfing at the driving range, playing tennis, swimming and dancing. She worked part-time, went to school part-time, and had a serious boyfriend. She was an avid reader, helpful around the house and got along well with her family and friends. [7] The only active medical problems the plaintiff had before the first accident were asthma and eczema. She also suffered from migraine headaches in the latter years of high school and the first year of college. In late 1999, the plaintiff had some neck and upper back pain, attributed to a postural problem arising from her full-time work as a marketing assistant to a financial planner, which disappeared following a short course of physiotherapy and correction of her posture. X-rays taken on December 14, 1999, of the lumbar spine, sacroiliac joint and right ankle were normal. There were a few isolated incidents of emotional upset recorded in the medical records. The plaintiff had no active or problematic medical conditions at the time of the first accident. The Plaintiff's Injuries [8] On the day of the

first accident, the plaintiff's only symptom was a headache. The next day, she woke up with a stiff neck and back, which became more painful and stiff over the next few days, at which point she sought medical attention. [9] As a result of the first accident, the plaintiff was diagnosed with soft tissue injuries to her neck, and upper and low back. She had pain and discomfort in her left arm, left elbow and fingers, jaw pain, and headaches. [10] After the first accident, the plaintiff was prescribed muscle relaxants, painkillers, and anti-inflammatory medications. She attended physiotherapy, massage therapy, and exercise therapy. The plaintiff's injuries responded well initially. [11] The plaintiff was on the way to recovery from the first accident when the second accident occurred. The second accident essentially exacerbated her injuries suffered in the first accident. [12] Following the second accident, the plaintiff was prescribed muscle relaxants, painkillers, anti-inflammatory medications, as well as medications for sleep, anxiety and depression. She continued with physiotherapy, participated in an exercise program with a kinesiologist, had acupuncture, saw a naturopath and received prolotherapy and trigger point injections. [13] An x-ray of the lumbar spine and sacroiliac joints, dated March 9, 2005, was normal, as was an x-ray of the cervical spine dated October 17,

2006. [14] Dr. Manchanda, the plaintiff's medical expert and treating physician in relation to chronic musculoskeletal pain, diagnosed the plaintiff with chronic regional myofascial pain stemming from musculo-ligamentous injuries around her low back/sacroiliac joints, upper back and neck. He also diagnosed her with cervicogenic headaches. Dr. Manchanda referred the plaintiff to Dr. Hrabar, a doctor who specializes in psychosocial health, for management and treatment of her mood and depression. Dr. Hrabar diagnosed the plaintiff with a mood disorder and sleep problem. Summary of Injuries [15] The plaintiff testified that for about two months after the first accident the headaches were virtually constant, generally lasting several days and being of considerable severity. By the end of December 2003, they had improved, and the duration and severity had decreased. The plaintiff's headaches became worse after the second accident; almost as bad as after the first accident. The plaintiff currently gets headaches two to three times a week. The headaches affect her life by making it hard for her to work, and hard for her to focus at work and school. [16] The plaintiff testified that she endured constant neck pain and stiffness for three or four months following the first accident, which left her only able to look straight ahead, with throbbing pain, as well as pins and needles down the

front and back of her neck. By the end of December 2003, her neck had improved to the point where, if she found a comfortable position in which to hold her head, she would be okay unless she moved her head. After the second accident, the plaintiff testified that she was almost put back to where she was after the first accident. She has recently noticed improvement with prolotherapy, physiotherapy, acupuncture, and cortisone injections. [17] The plaintiff began to notice pain in her upper back within two or three days after the first accident. By the end of December 2003, her upper back had improved and she no longer experienced pins and needles, but she noticed a pulling sensation if she reached her arms out. She now feels tightness in those muscles, accompanied by an ache. She underwent trigger point injections, but the pain still bothers her with moving and sleeping. It is sometimes constant and aggravated by moving. [18] The plaintiff's mid-back pain was similar to her experience with her upper back. She felt stiffness, pins and needles, throbbing and aching. It improved and did not bother her all the time by the end of December 2003. Now, her mid-back does not hurt her constantly, but she still feels a pulling sensation. [19] The plaintiff's low back pain started in the summer of 2003. She felt weakness in the bottom of her back and had trouble keeping her balance. Sitting

and bending hurt. It would ache constantly for days. By the end of December 2003, her low back was still bothering her. Although she still gets pain, she can now sit for longer - about 20 to 30 minutes, compared to about 15 minutes before the prolotherapy. She has to continually cross and uncross her legs to sit this long without pain. Bending has become easier and she can now stand for 30 minutes without moving. [20] The plaintiff testified that her left arm began to bother her shortly after the first accident. It ached in her upper arm into her elbow and caused a pulling sensation in her fingers. She had a constant ache in her elbow, but her fingers only tingled when using and extending her arm. By the end of December 2003 the problem had improved, but it was still there. The plaintiff testified that her left arm is now better; she rarely gets pain, but she still gets the pulling sensation and a bit of tingling in her fingers. [21] The plaintiff testified that she had jaw pain within days of the first accident, that it was stiff and sore to chew, and that she noticed a popping sound, all of which would come and go. By the end of December 2003, she was aware of jaw pain when she was chewing or when she got upset. The jaw pain was made worse by the second accident and continues to bother her. Her doctor anticipates referring her to a dental specialist. [22] The plaintiff

testified that her sleep was disturbed as a result of the first accident due to pain. By the end of December 2003, her sleep had improved a bit. The plaintiff continues to have trouble sleeping, for which she uses a prescription for Trazodone a couple of times a week. Impact on Academic Performance [23] In addition to her physical and psychological condition, the plaintiff testified that her injuries had a detrimental affect on her schooling. She was unable to concentrate because of headaches; often she could not sit through classes; and she had difficulty with required readings because of her inability to sit and concentrate. She asked for extensions frequently; when these were not forthcoming she sometimes handed in incomplete work. [24] The plaintiff testified that she failed one course, Marketing Management, in the fall of 2003 because of her injuries. Her instructor was not very accommodating; nor was her group for a group project. She did very poorly on the midterm exam because she could not concentrate. She left some classes early, or skipped the second hour after the break. The plaintiff asserts that as a result of failing Marketing Management her graduation from the Marketing Management program was delayed. She claims she could have graduated after the Winter 2004 session, when she passed the Business Statistics Course on her second attempt. However, because she had

failed Marketing Management, and because she did not wish to take the course again with the same instructor, she did not retake it until the fall of 2006. [25] In addition, the plaintiff claims she has not been able to do as well as she would have liked at Simon Fraser University because of her inability to sit through long classes, concentrate and complete reading assignments, all of which she says have affected her grades. [26] Dr. Semrau, the defendants' forensic psychiatry expert, considered the plaintiff's complaint that her injuries interfered with her academic performance. He stated that she was an average student before the accident and devoted considerable energy to her employment during studies. He took into account these factors and the general tendency for studies to become more demanding at more advanced levels, commenting on the difficulty in determining the extent to which her symptoms have impacted her academic performance. He did acknowledge that it was plausible that pain, difficulty sitting, and impaired concentration and memory would have significant negative effects on academic performance. Subsequently, Dr. Semrau had an opportunity to review Ms. Middleton's academic transcripts and concluded she had a decrease in academic performance for two semesters following the accident, but then recovered her academic ability as shown by her increased grades in the

fall of 2004, her highest levels of achievement in her academic career. [27] I agree with the defendants that the educational transcripts placed into evidence in this case tell the whole story. The plaintiff was a marginal-to-average student from the earliest date for which there are records; and she continues to be a marginal-to-average student after the accidents. There is little appreciable difference in her pre-accident and post-accident performance, other than for two semesters following the first accident. [28] Further, Ms. Middleton has been a less than dedicated student for her entire post-secondary career, meandering from program to program, changing programs twice before settling on Marketing Management, and then switching to a Communications degree program at a different institution prior to completing her Marketing Management diploma. Both before and after the accidents, she has taken as little as one course per semester up to as many as four courses. She abandoned the pursuit of her diploma entirely for two and a half years in the middle of the program, because she preferred working over attending college. She ultimately took over seven years to complete a two year diploma program. [29] It has now been ten years since Ms. Middleton graduated high school, and she just recently obtained her Marketing Management diploma. She recently took off the entire Winter 2007

semester to focus on this trial, even though the semester and exams finished in April, prior to the commencement of the trial. She made her part-time jobs her priority in order to maintain her health benefits, and because she enjoyed her job in the family-like atmosphere at IKEA. Her parents required her to be in school to continue living in the family home where she was "financially taken care of" and received free room and board in a comfortable, loving, supportive environment. [30] It is impossible to conclude on the evidence that the accidents caused any significant delay in the plaintiff's education, as she has displayed no consistent educational path, nor a sense of urgency or commitment to her post-secondary education at any time since she graduated from high school. General Damages [31] The plaintiff relies on the decision of Foran v. Nguyen, 2006 BCSC 605, where $90,000.00 was awarded for general damages, and Heartt v. Royal, 2000 BCSC 1122, where the plaintiff was awarded $60,000.00 for general damages. The defendants seek to distinguish these cases on the basis that here the plaintiff's condition is improving, not worsening, and here there is a failure to mitigate on the part of the plaintiff. [32] The defendants rely on the following authorities: Littlewood v. Prendergast, 2004 BCSC 1321 ($28,000 for general damages); Krogh v. Swann, 2005 BCSC 761 ($30,000 for

general damages); Masoodi v. Dennis et al, 2000 BCSC 825 ($30,000 for general damages); Eaton v. Regan, 2005 BCSC 3 ($37,500 for general damages); and Hicks v. GMAC Leasco Limited et al, 2001 BCSC 1091 ($35,000 for general damages). [33] Ms. Middleton suffered soft tissue injuries to her neck and back, jaw, and left arm. She has suffered headaches from the time of the accident to the present. She has been diagnosed with chronic myofacial pain. She has developed depression and has been diagnosed with Major Depressive Episode. She is restricted in all her daily activities at home, at school, and at work. In addition, she has curtailed her recreational activities. The accidents have impacted her sleep, mood, motivation, energy level, memory and concentration. The accidents also impacted on her relationships with her family and friends, and on her employment and education. She received many forms of treatment including medications, physiotherapy, kinesiology, massage therapy, acupuncture, naturopathy, prolotherapy, and trigger point injections. [34] It is the opinion of her doctors that she will continue to experience some degree of pain indefinitely and it is unlikely she will ever return to the health she enjoyed prior to the accidents. Dr. Manchanda described the prognosis as uncertain. He did not expect a 100% recovery. He allowed that she would be able to work full-time in

light physical employment, like her job at IKEA. He felt she would not be able to participate in employment that required her to do heavy physical activity due to the risk of re-injury. He anticipated ongoing pain to a significant degree in the future, and probably for a long time, but not permanently. He said the plaintiff would be at a higher risk of re-injury. It is the opinion of both Dr. Manchanda and Dr. Semrau that the plaintiff continues to be depressed. Mitigation [35] It is the plaintiff's position that she has made a reasonable and credible effort at rehabilitation, which has included 106 physiotherapy treatments, 15 painful, intrusive prolotherapy treatments, two sessions of cortisone injections and regular bi-weekly home exercise with an exercise ball and therabands. She submits there is no credible evidence that she should have done more exercise or more treatment for depression, or that doing anything more would have helped her in any significant way. The plaintiff says her primary problem was pain due to her injuries and it was appropriate to focus on her pain, not her depressive reaction to her pain. [36] The defendants argue the plaintiff did not take reasonable steps to mitigate or reduce the loss she suffered as a consequence of the accidents in that she failed to take prescribed medical treatment for depression and did not exercise as she should have. [37]

The plaintiff is required to act reasonably to mitigate or lessen her loss and whether she did act reasonably is a question of fact. If the plaintiff did not act reasonably, no damages are recoverable for any loss the plaintiff could have avoided through reasonable action. On this issue, the burden of proof rests upon the defendants to demonstrate on a balance of probabilities that the plaintiff did not act reasonably. The plaintiff is not held to a high standard of conduct in mitigation; the law is satisfied if the plaintiff takes steps that a reasonable person would take in the circumstances to reduce the loss. Mitigation of Psychological Injuries: Depression [38] The plaintiff acknowledges that she has suffered from depression since the accidents. The defendants acknowledge that her depression was caused by the accidents. [39] The plaintiff's injuries have had a serious impact on her mood. She has been diagnosed with a mild form of Major Depressive Episode. Both Dr. Manchanda and Dr. Semrau are of the opinion that the plaintiff's depression was caused by her pain and disability since the accidents. Dr. Semrau was of the view that a diagnosis of pain disorder does not appear to be warranted for Ms. Middleton. However, it was likely that the experience of pain substantially aggravated Ms. Middleton's depression, as well as contributed to other difficulties, including sleep

problems, fatigue, memory and cognitive difficulties. [40] On December 30, 2005, Dr. Manchanda referred the plaintiff to Dr. Hrabar. The plaintiff saw Dr. Hrabar only four times: January 3 and 10, February 21, and March 7, 2006. The treatment plan was to first improve the plaintiff's sleep cycle by putting her on Trazodone, and then putting her on the anti-depressant Celexa. Dr. Hrabar also recommended that the plaintiff take biofeedback as a means of treating her depression. [41] The plaintiff did not return in one to two weeks as directed by Dr. Hrabar on January 10, 2006. There is no explanation for the plaintiff not returning for almost six weeks. There is no record of any complaints by the plaintiff with respect to taking Celexa, and the dosage was increased to 20mg. [42] The plaintiff's last visit to Dr. Hrabar was on March 7, 2006. Dr. Hrabar's notes indicate that the plaintiff complained of feeling restless and "still" having difficulty concentrating. The plaintiff reported having quit Celexa three days prior to the appointment. Dr. Hrabar advised the plaintiff to restart Celexa, and to take biofeedback and group therapy. [43] The plaintiff testified that she discontinued Celexa because it "made everything worse", and that she communicated these complaints to Dr. Hrabar, but Dr. Hrabar did not take her seriously. [44] Dr. Semrau testified that there are over twenty

anti-depressants available, and if the plaintiff had complained of significant problems with the drug, Dr. Hrabar would undoubtedly have tried a different anti-depressant, which is the standard treatment protocol for depression. [45] Rather than restarting Celexa or requesting a different anti-depressant, the plaintiff simply disregarded the recommendation to resume Celexa and never returned to Dr. Hrabar. [46] Dr. Manchanda testified that had the plaintiff told him that she was not comfortable seeing Dr. Hrabar, he himself would have dealt with her depression. The plaintiff never told Dr. Manchanda that she was unhappy with Dr. Hrabar, and there is no indication in Dr. Manchanda's notes or reports that he was even aware the plaintiff had discontinued treatment for her depression. [47] The plaintiff denies the defendants' suggestion that she has failed to mitigate her loss by not following through with the treatments for depression recommended by Dr. Hrabar, maintaining that her actions were perfectly reasonable in focussing her time and energy on healing her physical complaints, which had the effect of reducing her depression. It is the position of the plaintiff that treating her depression would not have solved the underlying problem of the injuries she suffered in the accidents, whereas treating her injuries would help in solving the problem of her depression. She relies on

Dr. Semrau's evidence that the prescribed anti-depressant likely provided no help; that she was right to pursue treatment for her injuries to lessen her pain and hence her depression; and that both group therapy and biofeedback are less likely to work if they are not supported by the patient. [48] The plaintiff chose to disregard Dr. Hrabar's advice to undertake biofeedback and group therapy; she testified that neither was explained to her, so she "really didn't understand what they were". The plaintiff testified at trial that her reason for not pursuing group therapy was that she did not want to be around other depressed people. Further, the plaintiff told Dr. Semrau that she did not follow the recommendations of Dr. Hrabar as she felt she did not need group therapy or biofeedback, which seemed "too drastic a way to deal with not being happy all the time". [49] I agree with the defendants' comment that this is a case of a patient thinking that she knows better than her health practitioners. In cross-examination when asked why she did not pursue group therapy and biofeedback, the plaintiff stated "I didn't have time to do all that". This response indicates that the plaintiff's priority was not her recovery. [50] Dr. Manchanda agreed that a person who has a mood disorder will experience more pain and fatigue than a person who does not have a mood disorder, because pain is

moderated by the brain. [51] Dr. Semrau's opinion is that the plaintiff needs to resume psychological and prescription anti-depressant therapies, with a likelihood of significant symptomatic and functional improvement to be expected. He concluded that the plaintiff's decision to abandon anti-depressant treatment and to not undertake psychological therapy for her depression has likely negatively impacted her symptomatic and functional recovery in the following ways: 1. intensification of depressive symptoms; 2. prolongation of depressive symptoms; 3. likely increase the difficulty and duration of subsequent anti-depressant treatment; 4. likely increase the risk of future depressive episodes; 5. likely reduce general, educational and occupational motivation and performance; and 6. likely aggravate pain experience and interfere with physical symptoms and functional recovery. [52] Dr. Semrau testified that none of the medications the plaintiff has taken, with the exception of Celexa, were prescribed in dosages designed to treat depression. He endorses Dr. Hrabar's recommendations that the plaintiff pursue group therapy and biofeedback. In his opinion, the plaintiff's condition requires both physical and psychological treatment. In his opinion, while it is good that she is benefiting from prolotherapy, she would get more rapid and more complete benefit by using group therapy and

biofeedback as well. [53] The defendants have established a failure to mitigate on the part of the plaintiff with respect to treatment for depression. The evidence supports the conclusion that the plaintiff's depression would be significantly improved by this time, if not resolved, had the plaintiff pursued recommended treatment for depression. This is a case where the plaintiff has unreasonably failed to adopt any of Dr. Hrabar's recommendations with respect to treating her depression. Of note, this trial commenced about sixteen months after treatment for depression should reasonably have been pursued by the plaintiff. Mitigation of Physical Injuries: Exercise [54] The defendants submit that the plaintiff has failed to pursue an adequate, active exercise program. Instead, she has unreasonably relied almost exclusively on passive therapy modalities, such as prolotherapy, acupuncture and physiotherapy. The evidence adduced demonstrates the value of exercise to aid quick recovery for the plaintiff's type of injuries. In addition, exercise has a positive effect in alleviating the symptoms of depression. The medical evidence establishes there is an overlap between pain and depression; there is a connection between a person's mood and their perception of physical pain. For someone like the plaintiff, an exercise program is a key part of her recovery, not a recreational activity that

she may discontinue if she does not find it enjoyable. The evidence establishes that the plaintiff put minimal effort, at best, into an exercise regime. [55] The plaintiff has failed to follow the advice of her treating health professionals with respect to maintaining a regular exercise program. The defendants are entitled to a deduction in her damages to account for the fact that her recovery from her injuries would have been faster and more complete had she maintained a regular exercise program. Assessment of General Damages [56] In my view, general damages are appropriately assessed at $60,000 and apportioned at 60% to the first accident, 40% to the second. However, the plaintiff has failed to mitigate her damages by not treating her depression and not engaging in an exercise regime. In the circumstances, an appropriate reduction for such failure to mitigate is 40%; therefore, damages are awarded at $36,000. Loss of Opportunity and Capacity [57] The plaintiff has continued to work since the accidents, missing only three days of work due to the second accident. The plaintiff has been very successful in her IKEA career, both before and since the accidents. Her performance reviews show that she likes IKEA and IKEA likes her. She has no intention of changing jobs. To date, the plaintiff's actual earnings at IKEA have not been impacted by her injuries. Accommodations have been

made by her co-workers to allow her to continue working without performing all the physical tasks required and by giving her breaks. She did not apply for a position as Small Business Coordinator when that position became vacant because it was a full-time position and she did not feel that she would have the flexibility to take time off, either when she was having a bad day or to attend school. Her manager, Graham Pascal, testified that despite any physical or psychological limitations the plaintiff may currently exhibit, he would be happy to hire her as a co-ordinator or manager if she applied for such a position, and he encouraged her to apply for a full-time co-ordinator position in the past year. [58] Full-time work is available to the plaintiff at IKEA and in the past she has worked full-time in the summer months. [59] Richard Carlin, a vocational consultant, suggests the plaintiff's position at IKEA may be more precarious than she realizes. While she has received performance reviews that range from the merely positive to the positively glowing, his opinion is that her ability to work at that level has only been made possible by the fact that she has had very understanding and sympathetic supervisors who knew her before she was injured and who are willing to make allowances for her injuries. Should those people leave the store location where she works, she may find herself

with a supervisor who does not know her and is less willing to accommodate her disabilities. [60] In fact, the plaintiff has worked at IKEA for four years since the motor vehicle accidents with stellar results. [61] Mr. Carlin suggested an assessment of the long-term consequences on the plaintiff's earning capacity was best left to a labour economist. No such assessment was done. [62] In the plaintiff's submission, the case of Andres v. Leslie & Swackhamer, 2005 BCSC 1096 ("Andres"), best mirrors the plaintiff's facts. In Andres, Lander J. referred to Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, [1995] 3 W.W.R. 728 (C.A.), in which the following passage from Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at 356 (S.C.) is relied upon: The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether: 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. The plaintiff is less marketable or attractive as an employee to potential employers; 3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of

earning income in a competitive labour market. [63] The plaintiff argues she is less marketable due to her injuries. She says she is unable to do physical work and may not be able to work full-time, and as a result she suggests job opportunities may be lost to her. She is less valuable to herself as she does not have the confidence to apply for full-time work. On behalf of the plaintiff it is submitted that she faces the real and substantial risk that she will end up, at IKEA or elsewhere, among managers and co-workers who will not be so accommodating, with negative employment implications. The plaintiff seeks an award for damages for lost future earning capacity in the amount of $150,000. [64] The defendants argue the fact that a plaintiff may suffer pain in the course of her employment (as opposed to experiencing disability), can be accounted for in the award of general damages, rather than by making an award for loss of earning capacity: Radford v. Drobot, 2005 BCSC 293. [65] The fact that a plaintiff did not lose any income prior to trial as a result of the accident is a significant factor that must be considered in assessing a loss of income earning capacity: Yount v. Prospect Electric Ltd., 2005 BCSC 322 at para. 26, citing Vaillancourt v. Molnar, 2002 BCCA 685 at para. 72. [66] The defendants submit there is inadequate evidence in this case to support an award for loss

of future income or loss of earning capacity. There is no functional capacity evaluation before the court to establish that the plaintiff is not capable of undertaking any particular type of employment, or performing certain employment tasks. Dr. Manchanda suggests that she should avoid employment that requires certain types of physical requirements, but Dr. Manchanda did not test her capacity to perform these types of physical duties. Dr. Manchanda felt the plaintiff will likely be able to work full-time in light physical employment. [67] The vocational report from Richard Carlin opines on the range of opportunities available to a person with a Marketing diploma, but the plaintiff informed Mr. Carlin and testified at trial that her intention is to complete a degree in Communications. Despite giving the opinion that completing her degree will "provide her with a better opportunity for obtaining employment within her physical tolerance levels", Mr. Carlin offers no evidence regarding the range of job opportunities available to a person with a degree in Communications. The plaintiff called no evidence to establish what positions she intends to seek with a degree in Communications. There is no evidence of the physical requirements or remuneration of those positions. It may well be the case that the physical requirements and remuneration are no greater (and may be less than) her

current position at IKEA, or management positions she could pursue at IKEA. [68] Given her work experience before and after the accident, her educational path, and her aptitudes and interests as tested by Mr. Carlin, it is clear that the plaintiff's career path, absent the accidents, would have led her to light employment throughout her life. [69] There is no medical evidence that the plaintiff's condition is permanent. Her lower back pain improved with the aid of prolotherapy. She has already realized significant improvement at just short of the halfway point of a course of prolotherapy to her neck. Physiotherapist Lisa Price testified that the plaintiff has continued to make slow improvement. This improvement has been achieved without maintenance of a regular and consistent exercise program, and without a proper course of treatment for her depression. [70] The claim for loss of opportunity to operate an event planning business with Rachel Salloomi is too speculative to warrant compensation. There is no reliable evidence to support or quantify the claim. [71] An award for loss of earning capacity, or impairment of the plaintiff's capital asset, should be very modest in the circumstances of this case where the plaintiff has successfully worked both full and part-time since the accidents and has only missed three days of work due to her injuries. There is no evidence the

plaintiff's injuries will appreciably affect her ability to work in any field which she might reasonably be expected to pursue. [72] The following cases, relied on by the defendants, indicate that the appropriate range is $2,000 to $10,000: Littlewood v. Prendergast, ($2,000); Cannone v. Tang, [1999] B.C.J. No. 811 (QL) (S.C.), ($7,500); Krogh v. Swann, ($10,000); and Hicks v. GMAC Leasco Ltd.,($10,000). [73] In my view, an appropriate award in the circumstances of this case is $10,000. Future Cost of Care [74] Dr. Manchanda recommends that the plaintiff continue to be as active as possible and continue working. He plans to continue with prolotherapy treatments. He expects the plaintiff will not heal completely even after these treatments and will likely have periodic flare-ups of pain. He expects she may need more prolotherapy treatments in one to two years and will need ongoing physiotherapy. He recommends regular aerobic exercise, preferably on a daily basis. [75] No evidence has been led as to the extent of, or cost of, such future care. The plaintiff's symptoms have waxed and waned. According to Dr. Manchanda, it is unlikely the plaintiff will be symptom free for an indefinite period of time. [76] The plaintiff submits an award for cost of future care should be $15,000, based on what she has expended over the past four years ($10,000). The defendants submit there should be

no award for cost of future care; alternatively, any award should be $1,000 for four anticipated prolotherapy treatments. [77] Having regard to a significant failure to mitigate, I agree with the position of the defendants that any award should be modest. In the circumstances, I award $1,500 for cost of future care. Conclusion [78] In summary, damages are awarded as follows: General Damages: $36,000 Assessed 60%/40% to first and second accidents, respectively Lost Capacity: $10,000 Special Damages: $9,044 (agreed) plus Court Order Interest Past Wage Loss: $370 (agreed) plus Court Order Interest Cost of Future Care: $1,500 Total: 56,914 Costs [79] If the parties cannot resolve the issue of costs, they may make written submissions within 30 days. "The Honourable Madam Justice Stromberg-Stein"