Sharma v. MacDonald

2017 BCSC 2121 Sharma v. MacDonald

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sharma v. MacDonald, 2017 BCSC 2121 Date: 20171122 Docket: M152855 Registry: Vancouver Between: Kritika Sharma Plaintiff And Robert George MacDonald and Annie Harriet MacDonald Defendants Before: The Honourable Madam Justice Maisonville Reasons for Judgment Counsel for the Plaintiff: K.J. Sadler D. Abichahine Counsel for the Defendants: E. Haupt S. Zandnia E. Kotsaboikidis Place and Dates of Trial: Vancouver, B.C. May 1-5, 8-9, 2017 Place and Date of Judgment: Vancouver, B.C. November 22, 2017 introduction [1] On August 26, 2013, the plaintiff, Kritika Sharma, was driving her Chevrolet Cavalier motor vehicle northwest on King George Boulevard in Surrey, B.C. As a consequence of a construction zone near the intersection with University Drive, a flag person held up a "Stop sign" and the plaintiff came to a stop behind another vehicle. At that time, she was rear-ended by the truck owned by the defendant, Annie Harriet MacDonald, and driven by the defendant, Robert George MacDonald. The force of the impact was so strong that the plaintiff's vehicle was pushed forward and struck the vehicle in front of her (the "Accident"). She was wearing a seatbelt but was thrust forward and back on each impact. [2] As a consequence of the collision, the plaintiff claims damages for personal injuries, including injuries to her head, back, neck,

left shoulder and jaw. She also complains of pain and suffering in the form of sleeplessness, headaches, dizziness, nausea, loss of concentration, lightheadedness, anxiety, stress reaction, and loss of enjoyment of life. The plaintiff also claims damages for loss of earning capacity and loss of past earnings as a consequence of the defendant driver's negligence. [3] The defendants have admitted liability for the Accident. issues [4] Because liability has been conceded by the defendants, the issues remaining for determination are: i) the nature of the injuries caused by the Accident; ii) causation for the injuries; iii) loss of earning capacity and past loss of earnings; and iv) special damages relating to an in trust claim by the plaintiff's mother in relation to care of the plaintiff. the facts Prior to the Accident [5] The plaintiff had just turned 23 years old when the Accident occurred, and was 26 years of age when she gave evidence at trial. [6] The plaintiff was born in India. She immigrated with her family to Canada in May of 1999. [7] At the time of the Accident, the plaintiff was residing with her family, including her mother, father, and her older sister. [8] The plaintiff had attended North Surrey Secondary School, and following graduation from it, she went to Simon Fraser University ("SFU"). [9] She learned English while at Air Force School in New Delhi, India,

where all of her schooling had been taught in English. [10] The plaintiff's only health concerns prior to the Accident were that when she was in Grade 10, at approximately 15 years old, she fell and fractured her left wrist. She wore a cast for three weeks on that occasion. She also had complained of neck pain when she was at university some years prior to the Accident but testified that was postural and had been resolved. Nothing prevented her from working, however, and she was not in any pain prior to the Accident. [11] Her goal in school was to get a general science or kinesiology degree in order to be a physiotherapist or a registered nurse. [12] Prior to the Accident, the plaintiff was healthy and fit with no physical or psychological limitations, and has kept an active lifestyle. She studied hard in school and would help out her family with chores doing yard work such as mowing the lawn and raking leaves. She would also help with indoor cleaning, washing dishes, preparing food, and vacuuming. [13] The plaintiff's family physician, Dr. Parmjit Sohal noted that, prior to the Accident, the plaintiff had not been treated for pain in her cervical spine, neck, shoulder or arms, although he did note that she had had an X-ray of her cervical spine which the plaintiff had testified was a result of neck pain from studying while in improper posture. The plaintiff testified that that

pain had subsided with postural changes before the Accident. [14] Prior to the Accident, the plaintiff regularly attended social functions with friends. She also travelled and had volunteered once in Ecuador to assist the locals in building houses, lifting bricks and mortar in the process. [15] Before the Accident, the plaintiff enjoyed dance, yoga, pilates, golfing, basketball, swimming, and camping. She participated in the Terry Fox Run. She also volunteered in a nursing home with patients who suffer from degenerated brain disorders such as Parkinson's disease and Huntington's disease. She would take the patients to go for walks and play bingo. [16] Placed into evidence was the plaintiff's curriculum vitae, which outlined her various volunteering activities. She volunteered at the daycare centre of the Surrey Memorial Hospital as an auxiliary gift cart attendant and at the hospital's Penny Savers Thrift Shop. She also volunteered with the BC Cancer Society. [17] The plaintiff had also in the past worked as a retail sales associate at The Gap and La Vie en Rose. [18] Of all of those who testified, they described the plaintiff prior to the Accident as a happy, active, and adventurous young woman. [19] At the time of the Accident, the plaintiff was working as a temporary cashier at the university bookstore at the SFU's Burnaby campus. Her employment with SFU began in 2011. She

worked without issue and made herself available to work during late August and January respectively. These are the bookstore's busiest time of the year prior to the Fall Semester begins in September and the Spring Semester commences in January. [20] On the day of the Accident, the plaintiff was on her way to work. The Accident [21] On August 26, 2013, the plaintiff was driving northbound on King George Boulevard just before University Drive when a flag person directed her to stop with their "Stop sign" at the construction zone. The plaintiff was holding onto the steering wheel but was not aware that there was going to be an impact when her vehicle was struck by a truck from behind. On impact, her head hit her headrest twice very hard. She tried to embrace her body and protect herself by holding onto the steering wheel. She sustained two impacts: first, when she was hit from behind, and second, when her vehicle was forced into hitting the vehicle in front of hers. [22] After the collision, she sat in her vehicle in shock. She was approached by the woman who was in the vehicle in front of her and was asked how she was. The plaintiff said, "that hit was really hard". She then asked that 9-1-1 be called to get help. The flag person then approached the plaintiff and the two other drivers and asked them to move their vehicles. [23] The fire department crew arrived and came to her

vehicle's window. She was much shaken up and told them that her head hurt. After the firefighters looked at her car, they indicated to her that it was fine for her to drive home but said to her that she should go see a doctor that very day. She was not in a good state to drive. She felt really shaken up, and was literally shaking. Her entire upper body felt tense and was really tight with a lot of pressure. She was anxious and kept repeating to herself, saying "I am okay". [24] At the time of the Accident, the plaintiff was on her way to the Scott Road skytrain station where she would normally park her vehicle and take the skytrain to work at SFU. After the Accident, she drove home instead. After the Accident [25] It was an uneventful drive home and her mother was at home when the plaintiff arrived. The plaintiff's mother became very worried and started crying, asking the plaintiff to sit down in a chair at first and later on told her to lie down. [26] The plaintiff's physical feelings continued to get worse in terms of tightness. The pain in her head and her upper body worsened, getting tighter and stiffer. [27] The plaintiff felt as if there was too much light in the living room so her mother told her to go lie down in her room. The plaintiff did for an hour but she felt nauseous. The plaintiff's mother tried taking the plaintiff to see a doctor at a walk-in medical clinic

nearby her house. However, the receptionist at that medical clinic said that they were too busy to take her in so they called her family physician, Dr. Sohal and they went to see him instead. [28] The plaintiff said that Dr. Sohal assured her, gave her some medication, and told her to rest up and not go to work. Dr. Sohal also wanted the plaintiff to undergo physiotherapy and massage therapy treatments. [29] The plaintiff continued to attend Dr. Sohal. [30] The plaintiff complained to Dr. Sohal in October 2013 of ongoing headaches, neck pain, and upper back pain. She also told Dr. Sohal that she felt lightheaded and that she would experience pain in her entire body. [31] Dr. Sohal prepared a Form CL-19 Medical Report for the Insurance Corporation of British Columbia ("ICBC"), indicating that his objective findings were that the plaintiff had a painful range of motion in her neck, and tenderness on the cervical spine and trapezius muscles. [32] Dr. Sohal noted that the plaintiff's subjective complaints were of pain to her neck, upper back, and low back. [33] From October 2013 to June, 2014, the plaintiff attended physiotherapy treatment for injuries sustained in the Accident at the SFU's Centre for Students with Disabilities ("CSD"). [34] From September 2013 to June 2014, she also attended the painPRO North Surrey City Centre for massage therapy. [35] At the time of the

Accident, the plaintiff was in her fourth year of studies at SFU. She thought that she was beginning to feel better but when attending classes, the pain was intense. She would also experience a lot of pain if she started to engage in any activity. [36] The plaintiff continued her studies at SFU but found the pain to be very intense. In the fall of 2013, she was unable to attend lectures and sought assistance from the SFU's CSD. With the help from CSD, she was able to listen to lectures at home. The plaintiff does not believe that her grades suffered, but said she tried very hard. [37] The plaintiff was not able to drive after the Accident because she could not turn her head to shoulder-check and she felt pressure on her head. She did not believe it was safe. [38] In November 2013, the plaintiff resumed classes starting once a week, twice a week, and then three times a week. She had help from a friend who would drive her to school. She began to sit-in in lectures but she still found it very difficult. [39] By the end of the semester, the plaintiff was back to full-time attendance at SFU and in January 2014, she was attending regularly but she was still in acute pain. [40] The plaintiff would not carry a backpack but rather had a bag with rollers on it. She also had a cousin, Sonal Kaushik, who was attending SFU at the time and the plaintiff would frequently ask to stay over at

her cousin's place as she lived on the SFU campus. The plaintiff did graduate on time, however, and her marks remained steady. [41] In August 2015, the plaintiff attended four acupuncture sessions at the Guildford Health Centre in Surrey, B.C. [42] In fact, in December 2013, the plaintiff commenced looking for a nursing program. She felt that her marks were not the best but had grades that were high enough to get into the program. She felt that she was physically capable but testified that she had no exact idea what the physical requirements were for being a nurse. The plaintiff ultimately applied for nursing school, as referred to later in these reasons for judgment. [43] The plaintiff graduated from SFU in the spring of 2014. She was accepted into the nursing program at the University of Alberta. Following a visit to her family back in India, she moved to Edmonton, Alberta during the summer of 2014 for the commencement of the Fall semester. [44] While she was attending nursing school in Edmonton, she attended at the Glen Sather Sports Medicine Clinic at the University of Alberta for physiotherapy treatment. From October 2014 to November 2015, she also attended there for massage therapy treatment. [45] After she commenced nursing school at the University of Alberta, the plaintiff was apprehensive about the physical intensity of nursing. She felt stressed psychologically during

her first year of studies as at the same time, she had to overcome her physical problems. To her, it was important to get a career as she had a lot of student loans. Her parents were helping her out but she felt the pressure to get into a school and to graduate. [46] In April 2014 after the Accident, the plaintiff returned to the SFU bookstore and worked there in preparation for the University's summer semester. She was offered a full-time job, but she did not take the offer because she just wanted to work there on a temporary basis. She was not sure if she could work full-time. She explained that the bookstore requires physical activities. The plaintiff testified that she was not able to work as many shifts following the Accident, and her pattern of work was less than before. Finally, the plaintiff did not feel that she was able to continue working at the SFU bookstore that summer. Her last shift with the bookstore was on May 9, 2014. [47] The plaintiff testified that she did not work because of her pain and her condition. For the two weeks that she did work during that period, she had trouble standing and could not do what she used to be able to do at the bookstore's shipping and receiving department, even with light duties. [48] The plaintiff's academic performance at the SFU and the University of Alberta were placed into evidence. [49] It is apparent that she was not

performing as well as she would have hoped when she commenced at SFU. However, by the end of her four-year studies, she was doing far better. [50] At the University of Alberta, she obtained good grades as a nursing student. She testified that it was not until the first year in nursing school that she slowly started to feel better. [51] At the commencement of her nursing school studies, her mother travelled to Edmonton to assist in setting her up. She also helped the plaintiff to buy her books and bring them home for her. The plaintiff found tasks such as lifting heavy books to be difficult on her own. [52] The first year of her studies in the nursing program involved mainly theory. It was not until the end of that year then she had to do a practicum. [53] At the practicum, she was able to shadow and learn. She worked shorter shifts during that time. [54] Psychologically, the plaintiff started off doing well. However, sometime between 2013 and 2015, she started to feel as if things were not going to get better. She was eating well, stretching and going to physiotherapy, but she began to feel that her ongoing pain was starting to affect how she was feeling. [55] The plaintiff testified that she had hopeless feelings, and felt that she was going to stay the same physically and would have to live with her episodes of pain forever. She felt that nothing helped. She tried medication

but she could not tolerate anything that would render her sleepy and cause her to miss class. [56] The plaintiff struggled at first to be motivated. She testified that had the Accident not occurred, she would have worked during this time period in order to make additional money. Her parents had to help her with paying for her food and rent. [57] The plaintiff continued to feel sharp and jabbing pain, always having pain in her upper back and neck. On occasion, she would have flare-ups affecting her head, neck and shoulders, and down to her lumbar spine. The plaintiff still, today, feels pain and testified that the pain never completely goes away. [58] Initially after the Accident, she also suffered nausea, but that was gone after a few days. She felt lightheaded for a short period of time after the Accident and as well experienced loss of concentration. She was unsure as to when that went away. [59] The plaintiff also had trouble sleeping. While her sleep has improved, she always has trouble with it and even now it takes time for her to fall asleep. The plaintiff testified that she was a deep sleeper before the Accident. [60] Respecting her jaw, she testified that it is fine now. She noticed that she had difficulty for a couple of months but she has no concerns now. [61] The plaintiff continues to have stress reaction when she is in a vehicle. When being driven, she has

experienced tensing up and felt tightness as if it was the day of the Accident. She feels that she continues to suffer from stress reaction when she observes reckless and dangerous driving on the road. [62] In 2015, the second year following the Accident, her pain continued with her back, neck, and back and front of her shoulder. She sustained tingling, numbness, and weakness in her arm. [63] In terms of her psychological state, the plaintiff was unhappy and felt depressed when she started in the nursing program. After sitting in classes, she had to deal with pain. She had trouble carrying grocery bags and even opening doors. The plaintiff said that she did not make any new friends and, instead of having any social life, she stayed home. [64] In terms of her recreational activities, she was good at playing basketball before the Accident, although she was not on a team. Following the Accident, she experienced a lot of pain but, nonetheless, she continued playingit. She felt the need to still participate and tried to shake off her pain. [65] Following the Accident, the plaintiff testified that she initially did no exercise. She now jogs and has started running outdoors, but not to the extent that she did before the Accident because it causes pain. The plaintiff said she would jog for 15 to 20 minutes, three times a week, and starts off with walking. She also tries yoga to

decrease her pain level. [66] She has travelled since the Accident, including going to India in 2014, Las Vegas in 2015 and Mazatlán, Mexico in April 2016. [67] She testified about her mother coming out to Alberta to help her set up when she started in the nursing program. The plaintiff said that before the Accident, she had assisted her father in home chores such as cooking and yard work. However, at the time that she moved to Alberta, she could not do much chores and her mother was of great assistance to her. Her mother's assistance enabled her to focus on her studies. [68] In 2010, her father had to move away for a job and the plaintiff said that she was responsible for looking after the washroom and the laundry in the family home. After the accident, she could no longer do these kinds of chores and in terms of other cleaning activities, including cleaning the bathtub, the plaintiff testified that she tried doing them but when she felt the pain, she stopped. She said that it hurts if she holds her head looking down. [69] The plaintiff is still optimistic that she can do a good job as a registered nurse. [70] In the summer of 2015, she started her theory and clinical components in the nursing program. She was shadowing another nurse. [71] By 2016, in her second year in the nursing program, there was a curriculum change. She had to complete her preceptorship in pediatric

nursing which involves working closely with another nurse as well as shadowing nurses. The plaintiff said she shadowed two nurses at that time. [72] To help her own psychological state in her second year of studies, she began to build better social relationships and started to focus on feeling better. [73] During her preceptorship, she began to understand that being a registered nurse requires a lot of heavy physical work. Many hospitals now require twelve-hour shifts, and she found that after working for that amount of time, she would go home in pain and with a headache. [74] Because pediatrics encompasses patients up to 18 years of age, the patients can be fairly heavy. The plaintiff has been required to, for example, lift a 15-year old child who weighed 68 kilograms. [75] During her preceptorship, the plaintiff's mother stayed in Edmonton with her and helped her with household chores so that she could rest up. The plaintiff began to become very concerned that she would not be able to work as a registered nurse. [76] Following her nursing program, the plaintiff returned to British Columbia to look at employment opportunities and applied to Fraser Health Authority ("FHA"). She was successful in securing a spot in pediatrics, the field in which she completed her preceptorship. [77] She has spoken to her current manager and by the time of trial, she explained that she was having

issues and that she was unable to perform on her third and fourth day of work in a row. After working three to four days in a row, she finds her back and neck pain would get worse as the day progressed and she would experience pain shooting down her arm. [78] The plaintiff did not explain this when she was applying for job at FHA. Since then, she has gone to see the occupational therapist at the hospital. [79] When questioned as to why she has not done anything further recently, the plaintiff indicated that she had a lot on her mind at work, including the stress of the trial. She also responded that she was going to be seen by a rheumatologist shortly who will further assess her arm on the referral of her family doctor. [80] Regarding certain clinical records of her new family doctor, Dr. Benjamin Baby, in which the plaintiff had expressly denied experiencing low mood or anxiety, the plaintiff answered in cross-examination that she did not know what the physician was talking about or that comment could simply be something that was perceived by the physician. The plaintiff testified that she has indeed experienced low mood and anxiety. [81] In re-examination, it was noted, as set out in the clinical records of Dr. Salim Esmail, that the plaintiff had agreed with the statement that she felt less capable, confident, and useful because of her arm, shoulder ,and hand problem on a

four out of five number scale. Civilian Witnesses [82] A number of witnesses were called to testify to the plaintiff's condition both before and after the Accident. Pradeep Sharma [83] Pradeep Sharma, the plaintiff's father, testified to his daughter's life both before and after the Accident. He testified with the assistance of a Hindi interpreter. [84] He said that the plaintiff was living with the family in the same house and she would assist around the home, helping with vacuuming and other household chores. [85] Socially, the plaintiff's father said that she was very active and managed her time well. [86] Academically, she was a bright student and volunteered extensively in high school, including volunteering for the Terry Fox Run. She also enjoyed many activities outside of school, including camping and hiking. [87] Mr. Sharma said that the plaintiff's health, in general, was good. [88] Mr. Sharma said that the plaintiff would sometimes complain of pain in her neck and shoulders after studying. Mr. Sharma said that before the Accident, the plaintiff had a job at the university bookstore. He knew that when she was in high school, she wanted to become a doctor. [89] On the day of the Accident, the plaintiff came home saying that she was not feeling well. Her face appeared yellow and she was shaking. Mr. Sharma testified that he called the family doctor. Shortly afterwards,

he took the plaintiff there. The plaintiff was complaining of pain in her neck, arms and shoulders. Ultimately, the plaintiff had to spend many hours in physical therapy, and he would drive her to the therapy sessions and would wait for her in the car. [90] Following the Accident, Mr. Sharma said that the plaintiff's energy level was not the same. She would stay at home in her room. Sometimes he would ask her for help but he noted that she seemed sad and helpless. After the plaintiff was accepted into nursing school in Edmonton, Mr. Sharma went to Edmonton to assist in setting her up, and he recalls doing things for her such as going to the grocery store to get 5 gallon jugs of drinking water as it would be too hard for the plaintiff to carry. Mrs. Sharma also went and helped in setting her up. Mr. Sharma testified that his daughter was going through a lot of pain. Mr. Sharma felt that the plaintiff needed the extra assistance from her mother because of her condition. She could not study well or look after herself. [91] Following her receiving her nursing degree and after securing work as a registered nurse, Mr. Sharma testified that the plaintiff came back to live at the family home again in Surrey, B.C. She had different pain at this time though. Mr. Sharma noted that she was complaining of her right arm and right shoulder pain that she had never experienced before. [92] Mr.

Sharma testified that before the Accident, the plaintiff was strong, determined and had energy. Now it is just "not the same". [93] Under cross-examination, Mr. Sharma was asked about the family chores and he indicated that both his daughters are expected to help around the house, but the plaintiff would complain about having pain when asked to do so. [94] Mr. Sharma does not recall his daughter's condition getting much better over time. He was not aware that her grades at school had actually improved after the Accident. [95] Mr. Sharma was only vaguely aware that the plaintiff may have been accepted to nursing school in Vancouver. He did not believe she had been accepted to the University of British Columbia and was not sure about the British Columbia Institute of Technology. However, he recalls that his daughter thought highly of the University of Alberta's nursing program. Mr. Sharma testified that the plaintiff drove to the University of Alberta to start school. Anita Sharma [96] Mrs. Sharma, the plaintiff's mother, testified that before the Accident, her daughter was a normal school girl and was healthy and happy. [97] She testified that the plaintiff was a volunteer, was on student council, and she did sporting activities. Mrs. Sharma also said the plaintiff would go camping with friends and family, and that she never complained about pain in her neck area or

shoulders. [98] Mrs. Sharma learned about the Accident when her daughter came home, looking scared and shaken up, and told her that she had been involved in a motor vehicle accident. Mrs. Sharma wanted her to lie down and rest up but she was suffering from pain so she talked to her husband, Mr. Sharma, and they went to see her family doctor, Dr. Sohal, who examined her. [99] Mrs. Sharma noted that her daughter does not usually complain but a look at the plaitniff's face Mrs. Sharma would know that she was in pain. [100] Mrs. Sharma testified that she travelled to Edmonton quite a few times because the plaintiff needed help and was not able to do a lot of activities due to her neck and shoulder pain. Mrs. Sharma would stay with the plaintiff for a while and would even carry her books home for her. Had her daughter not had those difficulties, Mrs. Sharma testified that she would not have travelled to Edmonton as many times as she did. [101] Mrs. Sharma noted that the plaintiff complains about her headaches. [102] Mrs. Sharma was asked about the number of times she went to Edmonton. She said that the first time she went there was by car as they were helping the plaintiff move there. Following that, she would mostly fly out there to visit her. Mrs. Sharma said that one time she stayed in Edmonton for up to about 20 to 25 days. Mrs. Sharma indicated that she would go to Edmonton

when her daughter needed help. When they went grocery shopping, Mrs. Sharma would carry the groceries. Mrs. Sharma does not drive but the plaintiff would drive or they would mostly walk to the grocery store. Mrs. Sharma recalled that during the periods of time when her daughter was preparing for school exams, she could not sit for long periods of time. The plaintiff would study at home but would have to change her position and would ask her mother if she could massage her. Mrs. Sharma was aware that her daughter went to Mexico in April 2016 and she said that she and Mr. Sharma, paid for the plaintiff's trip. [103] In cross-examination, Mrs. Sharma was asked about some of the activities that they had enjoyed as a family and whether they had tried doing them since the Accident. Mrs. Sharma noted that since the Accident, they had gone camping only once, but that it was not "tent camping". [104] Mrs. Sharma was also aware that the plaintiff attended her sister's bachelorette's party in Las Vegas in 2015. The plaintiff's sister paid for the plaintiff for this trip. It was a three-day trip and they slept on air mattresses on the floor. Yuvika Aulakh [105] Mrs. Aulakh, the plaintiff's sister, was called as a witness. [106] She is older than the plaintiff by three-and-a-half years. They have always lived together in the family home until Mrs. Aulakh got married and moved out to live

with her husband. She was aware that the plaintiff was in a motor vehicle accident. [107] Mrs. Aulakh testified that before the Accident, her sister was always sociable, funny, and she had involved in sports and other activities, and had many friends. Mrs. Aulakh said that the plaintiff would engage in many recreational activities such as walks, hiking, and camping as a family. They travelled to Europe together for two weeks, and while there, they would walk for hours and the plaintiff never complained of any physical injuries. [108] Mrs. Aulakh is also a registered nurse. She graduated from nursing school and commenced working at FHA in September 2010. Following her orientation, she then went on the casual roster. She worked in the high acuity unit which is a step down from the intensive care unit (the "ICU"). She took a course which was sponsored by FHA to assist her in that work. Mrs. Aulakh later on applied for both part-time and full-time positions. Subsequently, she obtained her current full-time registered nurse position with the Surrey Memorial Hospital where she works in multiple units, including its ICU. [109] Mrs. Aulakh had talked to the plaintiff about becoming a registered nurse. She was aware that the plaintiff had narrowed down her focus to becoming a physiotherapist or a nurse. Mrs. Aulakh was well aware that the plaintiff wanted to work in the health care

system and while she was studying at SFU, they had numerous discussions about the application process. [110] Mrs. Aulakh testified that working in the ICU is different from the work that the plaintiff does. The plaintiff is focusing on becoming a pediatric nurse. Mrs. Aulakh said that the ICU occasionally demands immediate health resuscitation assistance as part of code blues being called where a patient has gone into arrest. Sometimes, a nurse will not have a partner and the situation is urgent requiring that the nurse to run with a backpack and the crash cart in order to prepare the patient for treatment that is necessary in such circumstances. She said that the porters who might assist are not always readily available. [111] Mrs. Aulakh counselled the plaintiff in her application process with FHA following her graduation and in doing so, she considered the plaintiff's physical limitations from the Accident and suggested to her that certain nursing roles would not be suitable for her, such as, for example, working in emergency or ICU due to the physical requirements. [112] Ms. Aulakh was asked if she felt that the plaintiff was able to do the kind of work necessary to be in the ICU. She answered that she was concerned about her not being able to due to her pain. She was aware that at present, the plaintiff will work a number of days in a row and then will have the days off in

between to rest in order to be able to carry on with the next round of work. [113] When she was cross-examined about how the plaintiff was when they were in Las Vegas, Mrs. Aulakh testified that on the first day, the plaintiff was excited and happy to be there. The second day, however, the plaintiff was tired and needed rest. Mrs. Aulakh said that the plaintiff had never done that on any of their travels before, including their trip to Europe. [114] When Mrs. Aulakh was asked about the recreational activities that they would do prior to the Accident, she referred to hiking. Following the Accident, however, they would have to discuss the intensity of the hikes before going and whether the plaintiff would be able to carry on. [115] Mrs. Aulakh testified that on one of the hikes they did, the plaintiff was unable to carry her backpack despite the backpack only contained only a bottle of water and a towel. [116] Mrs. Aulakh also testified that immediately following the Accident, the plaintiff would often retreat to a room and, at one point, had difficulty lifting her neck to eat. She found the plaintiff was psychologically withdrawn, scared, and physically in pain all the time. Sonal Kaushik [117] Ms. Kaushik is the plaintiff's cousin. They are close in age with Ms. Kaushik being three years younger than the plaintiff, and they went to SFU together. She also lived on the SFU

campus. [118] Ms. Kaushik said that before the Accident, they would go together on hikes and other outdoor activities. She joined the plaintiff on their trip to Ecuador to build homes for one month. Ms. Kaushik learned about the Accident because the plaintiff had spoken to her about it. [119] Before the Accident, Ms. Kaushik and the plaintiff would go camping with their families at Golden Ears. Ms. Kaushik's father had a boat and they would take it out onto Elbow Lake, B.C. [120] Ms. Kaushik noticed that the plaintiff was struggling and in class, she would often stroke her neck. Ms. Kaushik did not see the plaintiff when she was in Edmonton, but would see her for a day when she came back to British Columbia for visits. Now that the plaintiff has moved back to Vancouver, B.C., Ms. Kaushik says that she spends more time with the plaintiff but still not as often as they used to. [121] Ms. Kaushik lived on the SFU campus and was just a two-minute walk from the university. The plaintiff would often stay with her and lie on a futon which was more comfortable for her than sitting at a desk. [122] Ms. Kaushik recalled their trip to Las Vegas for the plaintiff's sister's bachelorette's party where they stayed at the Palazzo Hotel. The plaintiff stayed in a separate room. She would not stay out with the rest of the party because she had to rest early. past employment Karen Cavezza [123]

Karen Cavezza worked in the SFU Human Resources Department. Ms. Cavezza testified that the plaintiff worked in the SFU bookstore from 2011 to 2014 and that she was a temporary employee. [124] Ms. Cavezza testified that the SFU bookstore has a seniority system and, having worked there since 2011, the plaintiff had acquired seniority and could have more input as to her shifts. [125] The plaintiff was paid $16.44 per hour throughout her employment, except in 2014 when her earnings were increased to $17.10 per hour. Ms. Cavezza testified that the plaintiff's gross earnings in the 12 months prior to the Accident were $6,860.51. [126] Ms. Cavezza was aware of the plaintiff's excellent performance reviews at the SFU bookstore. post-accident employment The evidence of Gloria Mak [127] Ms. Mak is employed at the Surrey Memorial Hospital as a patient care coordinator and oversees the pediatric unit. She has been working with pediatrics at FHA since 2005. [128] Ms. Mak testified that part-time and full-time "lines", that is, shifts running back-to-back, become available when the nurse changes roles or retires. Ms. Mak testified that when assessing candidates for replacing a line, the number of hours that each casual status nurse has worked is taken into consideration. If a candidate has logged more hours, that candidate is more likely to succeed in the application. [129] Ms. Mak confirmed

that there are 25 lines in pediatrics at Surrey Memorial Hospital, 13 being full-time and 12 part-time. When there is an opening, casual employees are regularly called upon first when a line employee is unable to attend a shift. There is a significant amount of work available. [130] Ms. Mak recalled reaching out to the plaintiff after other employees suggested that the plaintiff was struggling at the end of consecutive shifts. Ms. Mak said that the plaintiff confirmed to her that she was in discomfort and in pain due to her the Accident. Ms. Mak was concerned as to whether the plaintiff would be able to meet the demands of the job. [131] Ms. Mak also testified to the nurses' pay scale. She said that the nurses receive incremental pay raises according to their collective bargaining agreement and that the plaintiff, at the time of trial, was a Level 1 registered nurse and, consequently, her salary started at $33.32 per hour plus pay in lieu of benefits. Ms. Mak said that the plaintiff now earns $33.94 per hour. [132] The Court was told that the levels increment from Level 1 to 9 and are incremented on the nurse's anniversary date of employment. [133] When asked about the roles of a pediatric nurse, Ms. Mak testified that many of the roles are physically challenging. In particular, pediatric nurses are responsible for caring for child patients, including feeding, bathing,

diaper-changing, changing IVs, repositioning, helping mobilize patients into wheelchairs, and generally assessing patient needs. Often, the patient will have to be picked up, and as pediatric patients include older children who can weigh as much as an adult, the roles of a pediatric nurse can be physically challenging. [134] In cross-examination, Ms. Mak was asked about the physical demands of the job as a pediatric nurse and she noted that there are patients who are described as "total care patients" who require more frequent repositioning. There may be suction required for their secretions and the nurse must check on them more often. As well, getting the patients in and out-of-bed is a priority because otherwise they could develop bedsores. [135] Ms. Mak testified that there is no duty to accommodate for casual employees. However, if the nurse has a permanent position, there will be a duty to accommodate. [136] Casual employees have to work 975 hours to be entitled to have benefits. plaintiff's expert evidence Dr. Parmjit Sohal [137] The plaintiff's family physician, Dr. Sohal, was called as a witness but not tendered as an expert. Instead, he outlined when he had seen the plaintiff. [138] The first time he saw the plaintiff following the Accident was on the day of the Accident, August 26, 2013, and he diagnosed her as having cervical strain, headaches, and tenderness in the

neck. [139] Dr. Sohal noted on all her visits that the plaintiff was persistently complaining of having neck pain. He agreed that it was strain and said that on the ICBC's Form CL19 dated November 1, 2013, he indicated that the plaintiff was prevented from working full-time from the period of the Accident through to early November 2013. [140] Dr. Sohal was cross-examined on whether the plaintiff was experiencing any jaw problem and he said he had not made a note of that. Dr. Joanne Pouchet [141] Dr. Pouchet was called as a witness. She is a dentist and specialist in periodontics. She obtained her degree in dentistry at Tufts University in Boston, Massachusetts. [142] Dr. Pouchet had been treating the plaintiff since February 2012. She had an opportunity to see the plaintiff to check for her periodontal and gum recession issues. During her treatment prior to the Accident, there was no indication that the plaintiff had temporomandibular joint disorders or jaw muscle problems, but in 2013 to 2014, she was having jaw problems and was complaining of headaches. [143] It was put to Dr. Pouchet in cross-examination that she did not record this pain but Dr. Pouchet testified that she did recall the plaintiff mentioning about the jaw pain on her right side. [144] When pressed on this issue, Dr. Pouchet indicated that it was her error not to record that right-sided jaw pain but replied

that it did not take away from the fact that the plaintiff indeed had the pain and that she does remember the plaintiff coming in complaining of pain. Dr. Jonathan P. Hawkeswood [145] Dr. Jonathan P. Hawkeswood was called as an expert witness. He gave expert opinion evidence in the area of physical medicine and rehabilitation, his specialty. [146] Dr. Hawkeswood set out in his report of November 28, 2016 the following: Ms. Sharma described exquisite sensitivity over the base of the neck, corresponding to the C7 or T1 vertebral levels. She was very tender in this region to application of light pressure (but not in other areas associated with myalgia). This probably coincides with a degree of central sensitization / pain 'wind-up' phenomenon. Ms. Sharma also complained of numbness affecting the right arm on a persistent basis. The physical examination identified asymmetric tightness affecting the right-sided scalene musculature. There was provocation of arm symptoms with the Allen's and Adson's maneuvers. Her symptoms are suggestive of a functional thoracic outlet syndrome (TOS), which is a common term used for TOS in the absence of vascular or electrodiagnostic abnormalities. Ms. Sharma also suffers from post-traumatic headaches. She complained of headaches beginning in the occiput and radiating anteriorly to the frontal region. No specific triggers were identified. No classic

migraine features were reported. These headaches take place every two to three days. I cannot exclude the possibility of medication overuse/rebound-type headaches in view of her frequent analgesic use. On the balance of probability, I find it more likely than not that Ms. Sharma suffered a mild concussion on account of the subject accident. She described classic post-concussive symptoms such as light sensitivity, a need to lie down, nausea and feeling generally unwell. These symptoms lasted about two days and then settled. I do not believe she has any lingering cognitive problems on account of the subject accident. Ms. Sharma described anxiety and depression-type symptoms following the MVA. Her anxiety relates mostly to being in vehicles. Her suspect issues with pain, sleep disruption, social isolation (particularly early on post-MVA), a lack of physical activity and getting behind in school have all contributed to some degree of mood disturbance. She struck as having ongoing mild anxiety. For further clarification or a more comprehensive mood assessment, I defer to a psychiatrist. [147] Dr. Hawkeswood was questioned about a passage of his report in which he noted that the plaintiff had experienced anxiety and depression features since the Accident. Dr. Hawkeswood wrote that, in terms of anxiety, the plaintiff felt uncomfortable in vehicles and particularly when others were

driving and changing lanes as this can re-trigger thoughts about the Accident, and cause her pain symptoms to get worse. [148] Dr. Hawkeswood wrote that the plaintiff has had episodes of low mood and mild depression since the Accident on account of being at home, frustrations with her inability to be socially active, and pain bringing her down emotionally. He indicated under cross-examination that this was not a medical opinion per se but was rather comments that had been provided to him by the plaintiff. [149] Respecting the thoracic outlet syndrome, Dr. Hawkeswood was asked in cross-examination how he came to that determination. He said it was his diagnosis made on clinical judgment: That's my judgment and is my diagnosis. Dr. Salim Esmail [150] Dr. Esmail testified by way of video and was qualified as an expert capable of giving opinion evidence in the area of general medicine orthopedics. [151] In his September 10, 2015 report, Dr. Esmail identified the Accident as the cause of the plaintiff's persistent neck pain and was of the opinion that she suffered damage to the zygapophyseal joints. [152] Dr. Esmail noted that the plaintiff had a previous neck problem but that her medical records did not disclose any ongoing issues in that regard. He also noted the presence of numbness in the plaintiff's arm on assessment. [153] He testified that he would not be surprised if other

doctors diagnosed the plaintiff as having thoracic outlet syndrome and that if the symptoms do not resolve after two years, the patient will have to begin to work towards pain management, and complete recovery will be unlikely. [154] In Dr. Esmail's opinion, the plaintiff's neck injury would prevent her from doing regular nursing employment on a long-term basis. He recommended a functional capacity evaluation to clarify her abilities and disabilities. He recommended this because evaluations can take longer than what is performed in a medical consultation and, accordingly, can likely provide greater insight into the plaintiff's functional capacity as a nurse. Dr. Kulwant Riar [155] Psychiatrist Dr. Riar assessed the plaintiff on November 2, 2016 and prepared a report dated February 4, 2017. While being assessed, the plaintiff began to cry when she was discussing the Accident. [156] Dr. Riar diagnosed the plaintiff with somatic symptom disorder, apprehension and anxiety in certain traffic situations, general anxiety disorder and major depressive disorder as result of the Accident. He noted that while he did not consider her to be disabled at the time of the interview, certain aspects of her life were limited or restricted due to her ongoing disorders, and "[a]ny further stress or deterioration in her anxiety or depression can compromise her functioning making her disabled." He

also noted that she had done everything suggested to her in terms of treatment but that she was still in pain on a daily basis. He recommended 14 to 16 one-hour sessions of cognitive behavioural psychotherapy at approximately $150 a session. [157] In his report, Dr. Riar wrote: 46. On the emotional front, she had developed some apprehension and anxiety in certain traffic situations, but she did not experience symptoms of posttraumatic stress disorder or any specific anxiety disorder to driving or traffic. Subsequent to the accident, she has experienced anxiety and depressive disorder. I believe that her anxiety disorder can be characterized as Generalized Anxiety Disorder and her depression as a Major Depressive Disorder. The symptoms of these disorders were worse in 2014 and 2015 and then started to settle. At the time of my interview with her, they were lingering around in mild to moderate intensity.

47. On the issue of causation of her somatic symptom disorder, I believe that the accident in question was the main cause to bring this disorder on, but subsequent anxiety, depression, her personality profile and other stressors like her school, moving away from home all played a significant part in aggravating and perpetuating her somatic symptom disorder.

49. As far as psychiatric intervention, she should be referred to a psychiatrist for treatment of her anxiety and depression with psychotropic medication as well as psychotherapy in the form of cognitive behaviour approach. If that is not available, then her family doctor should start her on antidepressant medication and she should see a psychologist for 14 to 16 one hour sessions for cognitive behavioural psychotherapy. As you are aware, psychological services are not covered under MSP and cost about $150 an hour.

51. As far as her psychiatric prognosis that is for the next four to six months, I believe that it is guarded but with the abovementioned intervention her functioning can be improved and the course of her illness can be changed. As [for] her long-term prognosis, I tend to believe that she would likely achieve remission from her present symptoms of anxiety and depression, but it is difficult for me to say when. Once her anxiety and depression is under control, she remains vulnerable for experiencing anxiety and depression in the future and this has to do more with her constitution and genetic vulnerability rather than any effects of the accident. Louise Craig [158] Ms. Craig was called as a functional capacity evaluation expert. She conducted a functional capacity evaluation of the plaintiff and her report dated November 5, 2016 was entered into evidence. [159] Ms. Craig had the plaintiff perform a number of tests designed to measure her ability to carry on with repetitive movements as well as her strength. [160] The key test was called the "repetitive movement test" and the results of that test showed a 26% decline in the plaintiff's shoulder strength and a 30% decline in her plank. [161] Ms. Craig testified that it was unlikely that the plaintiff's level of pain from performing nursing duties would decrease over time. [162] She has evaluated a number of nurses in the course of

her career, and is aware that nursing duties involve physical demands. Ms. Craig testified that based on her past experience with re-testing patients after treatments, the maximum percentage of improvement to the plaintiff's symptoms with treatment is only 10%. [163] Ms. Craig testified that while the plaintiff will be able to fulfil the duties of a pediatric nurse, it is unlikely that she will be able to tolerate regular duties on a full-time basis, and she should therefore consider working part-time. [164] With respect to treatment, Ms. Craig recommended the plaintiff to undergo 12 to 18 physiotherapy sessions and 12 to 24 supervised exercise sessions with a kinesiologist. She also recommended that the plaintiff attend yoga classes once a week on a long-term basis, and participate in pilates classes on a weekly basis for 6 to 12 months. [165] Ms. Craig noted the plaintiff to be limited in performing heavier household tasks, such as seasonal cleaning and heavier or repetitive garden and yard care. defenDANTs' expert evidence Dr. Jonathan Hummel [166] The defendants called Dr. Jonathan Hummel, an orthopaedic surgeon to testify at trial as defence's expert. [167] Dr. Hummel examined the plaintiff on January 20, 2017. At his examination of the plaintiff, he found the plaintiff to have neck and upper back pain. He also found the plaintiff to have pain in her right arm and

tenderness at the root of her neck, more so on the right side than the left. [168] Dr. Hummel wrote in his report as follows: The diagnosis is a soft tissue injury to her neck. This is possibly resulting in symptoms reminiscent of a thoracic outlet syndrome. On clinical examination today, however, there were no positive findings with regard to her thoracic outlet. It is my understanding that she will be seeing a rheumatologist the week after this evaluation. Based on my evaluation, it is my opinion that the patient most likely has a diagnosis of disputed thoracic outlet syndrome. Generally speaking, and in more simple terms, it is much more likely that patients who present with disputed thoracic outlet syndrome will tend to have a propensity for this in terms of being vulnerable. While it is not clear if this is a true thoracic outlet syndrome, and she has had EMG studies that were negative, suffice to say that between 80 and 90 percent of patients who have disputed thoracic outlet syndrome will respond to a program of therapy, posture, core strengthening, etc., and will do well. No further intervention will be required. Based on my evaluation, it is my opinion that the plaintiff will be able to continue to work. She is working in nursing on a part-time basis in Surrey at this time. It is my opinion that it is possible that from time to time she might have exacerbations of her

complaints, and it is possible that she might have some minor restrictions in place. if she works on her strengthening and conditioning it is likely that she will not require any further time off in the future. It is my opinion that based on my evaluation she does not have any obvious positive clinical findings for thoracic outlet syndrome other than her described history. This would put her in the group of disputed thoracic outlet syndrome The patient, as mentioned, has an 80 to 90 percent chance of settling down within a year of the accident. The diagnosis has not been fully completed at this time. However, from the description of the history, it is possible. On my examination, however, I found no evidence of any thoracic outlet syndrome with either regular or evocative tests. [169] Dr. Hummel had found that there was no other explanation for the plaintiff's pain other than the trauma of the Accident and that she was truthful and honest in her presentation. He was asked to simply state his diagnosis. He testified at trial, in line with his report, that the plaintiff had soft tissue injuries and symptoms reminiscent of thoracic outlet syndrome. He testified that his report which states the plaintiff has "disputed thoracic outlet syndrome" means that the pathway of the nerves and blood vessels from one's neck to one's arm which passes through three distinct anatomical areas,

the syndrome implies that there is some degree of compression of the vascular or nerve structures passing through this canal. The brachial plexus which consists of nerve roots as they come out of the spine also passes through this area, the brachial plexus has two parts the nerve function to your hand and the sensory function. There are two parts of thoracic outlet syndrome, vascular and neurogenic. Vascular compression is venal or arterial nerve compression is what he terms "disputed" or intermittent. It does not mean that it is not there. "It is definitely there" Dr. Hummel stated. It is simply that it does not manifest on every examination of the patient. He testified in general that 90% of thoracic outlet syndrome is neurogenic. The rest is out of the vascular arterial 1% venous 3-5%. He found no evidence of vascular thoracic outlet syndrome with the plaintiff. From the plaintiff's history, he diagnosed intermittent thoracic outlet syndrome. There is no definitive test for this, he testified. While there are tests that look to see if one can compress the vascular side the test was not reliable on its own to make a diagnosis. Another different test looks for a sudden significant worsening but, he emphasized, negative tests do not prove the syndrome does not exist and positive do not prove it either. He made his diagnosis on the plaintiff's physical presentation, her posture

and symptoms being wider than a true neck injury alone might show, in addition to her body type of tall and slender. He based his opinion respecting body type on it being the predominance of women who have this syndrome together with her posture displayed which would pull muscle. [170] In his report as noted above, Dr. Hummel noted that the plaintiff "has an 80 to 90 percent chance of settling down within a year of the Accident". [171] As pointed out by the plaintiff, Dr. Hummel's examination took place well over two years after the Accident. Clearly, however, the plaintiff did not recover within one year of the Accident, since the time Dr. Hummel examined the plaintiff two and a-half-years after the Accident, she still had significant symptoms. It is, accordingly, difficult to give this statement of Dr. Hummel much weight. He did note that there was still exploration of her condition occurring given the ending review by the rheumatologist. Dr. Hummel also testified the plaintiff "is likely to respond to a program of posture, strengthening, and certain exercises which will allow her to stretch out her shoulders". Credibility and reliability of evidence [172] The factors to be considered in assessing credibility were summarized by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186; affirmed 2012 BCCA 296, as follows: [186] Credibility involves an assessment of

the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 OW.N. 202 (Ont. H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356). [173] Of note is that if the plaintiff's account of changes in their physical, mental or emotional state resulting from the Accident is not persuasive, then any hypothesis upon which an expert report rests will be undermined: Samuel v. Chrysler

Credit Canada Ltd., 2007 BCCA 431 at paras. 15 and 49-50. [174] Plaintiff's counsel argues that the plaintiff and the witnesses called by her should be found credible. It is submitted that the plaintiff tried genuinely to provide accurate testimony and did so in a candid and forthright manner. Very few mistakes were made, and they were minor mistakes which were easily explainable as being due to human error. [175] The defendants, in contrast, argue that the plaintiff did not tell her doctor about certain complaints of pain that she had. For example, when she attended Dr. Sohal, there was no note of any jaw pain or anxiety at the time immediately after the Accident. [176] The defendants argue that when the plaintiff returned to work at the SFU bookstore in April 2014 for a short period of time, it was solely for the purpose of obtaining spending money for her trip to India. [177] The plaintiff agreed that prior to the Accident, she had never worked five days in a row, nor had she worked a seven-hour shift or full-time at any point during her employment with the SFU bookstore. The plaintiff testified in direct examination that she had improved considerably from the first to the second semester of the 2013-2014 academic year, and that in the spring of 2014, she was off to attend the University of Alberta as she believed she would be physically able to do the job of a registered

nurse. Thus, she was feeling more up to working at that time. [178] The defendants further submit that the stress the plaintiff suffered was as a result of her student debt, her trying to get into a good program, and the pressure from her family, rather than being related to the Accident. [179] The defendants do not dispute that the plaintiff suffers numbness and tingling feelings and that this is one of the major symptoms of thoracic outlet syndrome, as noted by Drs. Hummel and Hawkeswood. However, it is noted that the plaintiff was able to complete her nursing studies and even when she was doing her preceptorship, she still claimed that she believed she could physically handle a full-time position as a registered nurse. [180] It was at this time that she came back to British Columbia and applied for the position at Surrey Memorial Hospital. As noted, she then saw a new family doctor, Dr. Baby, and during this period of time she returned to see Drs. Hawkeswood, Epstein, and Riar. The defendants submit that during this period of time, the plaintiff's evidence became less credible. [181] The plaintiff testified that when she took the position at the Surrey Memorial Hospital, she believed that she could physically do the job and that she was not lying that she could do the job on the application form. However, the reports she gave to the specialists at the time complained of

chronic pain, jaw pain, headaches and emotional injuries. She described her headaches, jaw pain and emotional injuries to Drs. Epstein, Riar and Hawkeswood but not to Dr. Baby. [182] She started her work at Surrey Memorial Hospital in December 2016, completing her orientation of 150 hours at the end of February 2017 At the time of trial, she was working as a casual employee in the pediatric in-patient unit at the Surrey Memorial Hospital. However, since the time of commencing full-time work, she had only worked one four-day set, two three-day sets and had only had one conversation with her employer, Ms. Mak, respecting her limitations. [183] The defendants also rely on the questionnaire submitted to Dr. Esmail by the plaintiff in which, when examined, the plaintiff stated that she was able to do most things. [184] Overall, despite relatively minor discrepancies pointed out by the defendants, I find the plaintiff to be credible, and her evidence to be reliable. Her evidence was helpful in understanding the nature and extent of her injuries, as corroborated by the experts who testified at trial. [185] The defendants did not seriously dispute the credibility of any of the plaintiffs' experts, but noted that the opinion of their own expert, Dr. John Hummel should be preferred in that he found that the plaintiff has not yet been properly diagnosed with thoracic outlet syndrome and,

instead, recommended that this be done. [186] As referred to later on in these reasons, I find that Dr. Hawkeswood's diagnosis of thoracic outlet syndrome is accurate. [187] Respecting the lay witnesses and family members called by the plaintiff, the defendants do not dispute that the plaintiff was hurt directly after the Accident. The defendants do, however, ask that an adverse inference be found respecting the plaintiff's failure to call Michelle Noble, who was at one time the plaintiff's unit manager. I note that Ms. Noble, by the plaintiff's testimony, was on maternity leave and, therefore, was not able to come testify, and that a replacement was called instead. Accordingly, I draw no adverse inference in respect of her absence. [188] As liability is admitted, I turn to causation. causation Applicable legal principles [189] Causation is not to be determined by scientific precision; the defendant's negligence need not be the sole cause of injury, but it must be part of the cause and beyond de minimis: Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 13, 14 and 17: [13] Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.). [14] The general, but not conclusive, test for

causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441. [17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a "fire ignited in a wastepaper basket is caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth". As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. [Emphasis in original.] [190] The general test is the "but for" test, which requires the trier of fact to consider whether, but for the defendant's negligence, would the plaintiff have suffered the injury. [191] The "but for" test recognizes that compensation for negligent conduct shall be made where

there is a substantial connection between the injury and the defendant's conduct: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21 to 23: [21] First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute. [22] This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities." [23] The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors

unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J. [192] If the "but for" test is not workable, there is a material contribution test as noted by Chief Justice McLachlin in Clements v. Clements, 2012 SCC 32: [46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada: (1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for" the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is not required. (2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities

against anyone. [193] Accordingly, in Blackwater v. Plint, 2005 SCC 58, the Supreme Court of Canada held that causation must be established on a balance of probabilities on either test before damages may be assessed. Discussion [194] Here, the plaintiff argues that all of her injuries, including thoracic outlet syndrome, were caused by the tortious act of the defendants. [195] The defendants, in turn, dispute the plaintiff's complaint of psychiatric injuries, specifically major depressive disorder and somatic symptom disorder, arguing that the plaintiff made little in the way of complaints to her treating physicians on the symptoms of anxiety and depression. The only detailed complaint she made was to Dr. Riar who did his examination three years after the Accident. In the alternative, the defendants argue that Dr. Riar agreed in evidence that the plaintiff had a major depressive order or somatic symptom disorder to begin with, prior to the Accident. The defendants also rely on the denial of low mood and anxiety of the plaintiff in her visits to Dr. Baby in the fall of 2016. [196] Further, and in the alternative, the defendants argue that these symptoms manifested while the plaintiff was in Edmonton and resolved upon her returning home after graduating from the nursing program. [197] Respecting the jaw pain, the defendants argue that it is not related to the Accident and,

alternatively, the plaintiff's evidence at trial should be accepted, which was that "the issue had resolved after a couple of months". [198] Relating to the credibility and causation issues, I find that the defendants are responsible for the plaintiff's neck, back, and arm issues. In my view, the plaintiff has established on a balance of probabilities that she suffers from thoracic outlet syndrome, as concluded by Dr. Hawkeswood, and that this injury was caused by the defendants' negligence. [199] With respect to anxiety, I accept that the plaintiff suffers from anxiety in relation to driving. However, with respect to her low mood and depression, I find that it is more likely than not that this was a consequence of the plaintiff's move to Edmonton to attend university as her low mood and depression issue had alleviated when she returned home to the Lower Mainland. [200] I am also mindful of the fact that low mood and depression was not a complaint reiterated by the plaintiff prior to her move to Edmonton. She did not suffer from a major depressive syndrome, nor from a somatic symptom disorder. [201] I do find that, however, that the plaintiff was of low mood and was depressed as a consequence of the pain that she sustained from her injuries, but not to the extent as suggested by the plaintiff. As was established by Dr. Riar, had the plaintiff suffered a major depressive

incident, it would be unlikely that she would recover on her own without intervention, Damages [202] There is no issue with respect to mitigation of damages. The plaintiff has undertaken every treatment recommended to her in order to enjoy better health and better recovery from the Accident. Non-pecuniary damages [203] Regarding non-pecuniary damages, I find that the plaintiff enjoyed a full life before the Accident and had no issues with respect to her neck and back. Nor did she have a tingling feeling in her arm or numbness of her right arm. [204] I find that, as she testified, the plaintiff did not have to rest after having performed her regular activities. I also find that she did not experience headaches or low mood symptoms prior to the Accident. [205] I do find, however, that the plaintiff has been steadily improving. I note that she enjoys playing basketball. I note that she now works without significant limitations. I note that she has gone back to a number of her pre-Accident activities. She is not as socially isolated now that she has returned home from Edmonton. [206] I accept that the plaintiff still suffers from numbness and tingling feelings in her right arm, and from some neck and back pain. However, the pain she has now is not like the pain immediately following the Accident. The plaintiff is able to work to the extent she testified to. While I appreciate that she must rest afterward, she is not disabled from working. Law on non-pecuniary damages [207] The rationale for non-pecuniary damages is set out in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.

229. Justice Dickson, as he then was, noted that the money awarded in the non-pecuniary damage heading is there "because it will serve a useful function of making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in a direct way." [208] As well, in Milina v. Bartsch [1985] B.C.J. No. 2762 (S.C.), Justice McLachlin, as she then was, discussed the purpose of non-pecuniary damages, finding at para. 262: Damages for pain, suffering, loss of amenities and other non-pecuniary losses are awarded for the purpose of providing substitute pleasures and amenities to make the life of the injured person more bearable. In assessing such damages the court must consider the individual situation of the plaintiff and the extent to which money can provide solace, as well as the limitations established by the Supreme Court of Canada " [209] In Stapley v. Hejslet, 2006 BCCA 34, leave to appeal ref'd [2006] S.C.C.A. No. 100, the Court of Appeal outlined the factors that should be considered at para. 46: [46] The inexhaustive list of common factors cited in [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes: a) age of the plaintiff; b) nature of the injury; c) severity and duration of pain; d) disability; e) emotional suffering; and f) loss or impairment of life; I would add the following factors,

although they may arguably be subsumed in the above list: g) impairment of family, marital and social relationships; h) impairment of physical and mental abilities; i) loss of lifestyle; and j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54). [210] In determining and assessing the nature and severity of an injury, further factors are considered as noted in Buttar v. Brennan, 2012 BCSC 531 at paras. 24-25: [24] In a case such as this where there are little, if any, objective findings except some minor degenerative changes in the neck, back and knee, the following should be taken into account by the trier of fact: · the assessment of damages in a moderate or moderately severe soft tissue injury is always difficult because the plaintiffs are usually genuine, decent people who honestly try to be as objective and factual as they can. Unfortunately every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages Price v. Kostryba (1982), 70 B.C.L.R. 397 at 397 (S.C.); · the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery (Price at 399); · an

injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence -- which could be just his own evidence if the surrounding circumstances are consistent -- that his complaints of pain are true reflections of a continuing injury (Price at 399); · the doctor's function is to take the patient's complaints at face value and offer an opinion based on them. It is for the court to assess credibility. If there is a medical or other reason for the doctor to suspect the plaintiff's complaints are not genuine, are inconsistent with the clinical picture or are inconsistent with the known course of such an injury, the court must be told of that. But it is not the doctor's job to conduct an investigation beyond the confines of the examining room Edmondson v. Payer, 2011 BCSC 118 at para. 77, aff'd 2012 BCCA 114; · in the absence of objective signs of injury, the court's reliance on the medical profession must proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1127 at para. 73; · in a case of this kind care must be taken in reaching

conclusions about injury alleged to have continued long past the expected resolution. The task of the court is to assess the assertion in light of the surrounding circumstances including the medical evidence. The question is whether that evidence supported the plaintiff's assertion and, if not, whether a sound explanation for discounting it was given Tai v. De Busscher, 2007 BCCA 371 at para. 41. [25] In light of the above, an assessment of the plaintiff's credibility is critical: The test must reasonably subject his story to an examination of its consistency with the probabilities which surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357. Discussion [211] Numerous cases were put before the Court with respect to the appropriate range for non-pecuniary damages in this case. [212] The plaintiff suggests that the appropriate range of an award of non-pecuniary damages is $100,000 to $120,000, citing my decision in Wahid v. Caporusso, 2016 BCSC 1743. In that decision, the plaintiff enjoyed a high quality of life before the accident, including games, soccer, running and playing with her nephews

and nieces. She was a member of law enforcement, an occupation which was physically demanding. The plaintiff continued working with pain and at the time of trial, she was suffering from chronic pain syndrome. [213] Considering that the plaintiff had suffered six years of chronic pain because the case proceeded to trial six years after the accident, I awarded her $100,000. [214] Here, the plaintiff also relies upon Justice Dardi's decision in Midgley v. Nguyen, 2013 BCSC 693, where the plaintiff sustained a mild cervical and thoracic spine injury, and suffered from ongoing pain in his right hip. As a result of his injuries, the plaintiff suffered "years of significant pain, suffering and loss of enjoyment of life" (para. 224). In Midgley, Dardi J. awarded the plaintiff $110,000 in non-pecuniary damages. [215] The defendants submit that the award of non-pecuniary damages should be in the range of $70,000 to $80,000, given the nature of the injury and impact on the plaintiff's life, both at work and recreationally. [216] The defendants also rely on other cases to establish a non-pecuniary award in the range of $40,000 to $85,000. I find that those cases are not similar to the circumstances of the case at bar. The case before me is more akin to that of Wahid and Midgley. [217] In all of the circumstances, I award the plaintiff $100,000 in non-pecuniary damages. past loss of

earnings [218] In Sendher v. Wong, 2014 BCSC 140, Justice Verhoeven set out a review of the legal principles regarding past loss of capacity and set out the following in paras. 158-163: [158] The award for past loss of earning capacity is based on the value of the work that the plaintiff would have performed but for her accident injuries. The award is properly characterized as a loss of earning capacity: Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106, at para. 153; X. v. Y., 2011 BCSC 944, at para. 185. [159] The plaintiff need not establish the actual loss of earnings on a balance of probabilities. What would have happened prior to the trial but for the accident injuries is hypothetical, just the same as what may happen in the future, after the trial. [160] In Smith v. Knudsen, 2004 BCCA 613, at para. 29, Rowles J.A. stated: What would have happened in the past but for the injury is no more "knowable" than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events. [161] However the plaintiff must establish on a balance of probabilities that there is a causal connection between the accident injuries and the pecuniary loss claimed; mere speculation is insufficient:

Smith v. Knudsen para. 36; Athey, at para. 27; Perren v. Lalari, 2010 BCCA 140, at para. 32; Falati v. Smith, 2010 BCSC 465, at para. 41, aff'd 2011 BCCA 45. [162] Just as in the case of the assessment of future loss of earning capacity, in the case of past loss of earning capacity, if the plaintiff establishes a real and substantial likelihood of the pecuniary loss asserted, the assessment of damages to be awarded as compensation depends upon an assessment of the degree of likelihood of the particular loss, combined with an assessment of the value of the loss. [163] In cases where it is appropriate to proceed with an assessment of the value of the loss, s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, stipulates that a person who suffers loss of income is only entitled to recover the net income amount as damages: X. v. Y., [2011 BCSC 944] at para. 187; Lines, at paras. 152-186. See also Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30, which sets out: [30] Thus, in my view, a claim for what is often described as "past loss of income" is actually a claim for loss of earning capacity; that is, a claim for the loss of the value of the work that the injured plaintiff would have performed but was unable to perform because of the injury. [219] The court has the discretion to decide which period of time should be used to determine net income loss, and should be

mindful that the plaintiff is to be put in the position he or she would have been in had the accident not occurred: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at paras. 181 to 186. [220] The plaintiff claims that she lost income during the summer of 2014, and during the course of the 2013-14 school year. She calculates these lost wages at $4,573. [221] The plaintiff's evidence was that she tried working for two weeks in April 2014 but stopped because of the pain. The defendants' position is that the plaintiff's evidence on this point does not hold up. It was suggested to the plaintiff that she worked those two weeks simply to earn spending money for her family trip to India, which she denied. [222] The defendants argue that the plaintiff would not have been a registered student as testified to by Ms. Karen Cavezza, who said that students work according to a priority system, and a non-registered student would have to be on the regular CUPE seniority list or pool of workers. The defendants say that the plaintiff would no longer get the priority status offered to registered students because she was no longer a registered student. [223] This was in opposition to the evidence of the plaintiff, who indicated that she was still a registered student, which evidence I accept. I find that she would have obtained some work shifts during the school year and during the summer, which

would have reflected the kind of hours she had worked prior to the Accident. I also take into account that she took the family holiday to India that summer. [224] The plaintiff also testified that had she not been injured, she would have worked part-time during nursing school as she had done at SFU. Accordingly, the plaintiff calculates a loss of $13,721.02 over the two-year period based on what she earned in the 12 months prior to the Accident. [225] I find that, on a balance of probabilities, the plaintiff lost wages as a result of the injuries she sustained because of the Accident. In all, I find that there was a real possibility that the plaintiff would have worked part-time during the course of her nursing studies in Edmonton, and also would have obtained some part-time employment at the SFU bookstore in 2013 and 2014. [226] Consequently, I make an award of $8,000 in this regard. loss of FUTURE earning capacity [227] The plaintiff's future loss of earning capacity are surround the fact that the plaintiff wishes to continue working full-time as a registered nurse but she also wishes to be able to do so without having to spend the periods of time between work merely recovering. [228] A future or hypothetical possibility will be taken into consideration as long as it is real and substantial possibility, and not mere speculation: see Athey at para. 27 as well as Morlan v.

Barrett, 2012 BCCA 66 at para. 38. [229] Ms. Craig suggested that the plaintiff consider working part-time only. She is currently working as a casual which allows her to be selective with her shifts. [230] I have found on a balance of probabilities that the plaintiff has thoracic outlet syndrome and ongoing soft tissue injury pain and headaches. Accordingly, I find that the plaintiff's earning capacity has been impaired by her injuries and I must now consider what compensation should be awarded for the resulting financial loss that will accrue over time. [231] In Pololos v. Cinnamon-Lopez, 2016 BCSC 81, Justice Voith summarized the legal principles with respect to loss of earning capacity at para. 133: The relevant legal principles are well-established: a) To the extent possible, a plaintiff should be put in the position he/she would have been in, but for the injuries caused by the defendant's negligence; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185, leave to appeal ref'd [2009] S.C.C.A. No. 197; b) The central task of the Court is to compare the likely future of the plaintiff's working life if the Accident had not occurred with the plaintiff's likely future working life after the Accident; Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32; c) The assessment of loss must be based on the evidence, but requires an exercise of judgment

and is not a mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18; d) The two possible approaches to assessment of loss of future earning capacity are the "earnings approach" and the "capital asset approach"; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari, 2010 BCCA 140 at paras. 11-12; e) Under either approach, the plaintiff must prove that there is a "real and substantial possibility" of various future events leading to an income loss; Perren at para. 33; f) The earnings approach will be more appropriate when the loss is more easily measurable; Westbroek v. Brizuela, 2014 BCCA 48 at para.

64. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court should endeavour to use factual mathematical anchors as a starting foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37. g) When relying on an "earnings approach", the Court must nevertheless always consider the overall fairness and reasonableness of the award, taking into account all of the evidence; Rosvold at para. 11. [232] As noted by the Court of Appeal in Rosvold v. Dunlop, 2001 BCCA 1 at para. 18: [18] The assessment of damages is a matter of judgment, not calculation. Only Mr. Rosvold's optimism and willingness to embark on a new and untried line of endeavour distinguish him from the 47-year old longshoreman who in otherwise very similar circumstances was awarded $695,000.00 based on the loss of an annual earning capacity of $49,000.00: Mazzuca [v. Alexakis, [1994] B.C.J. No. 2128 (S.C.)]. When account is taken of all the evidence and the corrected pre-trial annual earning capacity, while having due regard for the trial judge's confidence in Mr. Rosvold's ability to start a successful business, I consider an appropriate award for loss of future earning capacity would be $300,000.00. I would vary the award for future loss accordingly and the award for past loss to $125,000.00. Accordingly, the assessment of damages is a matter

of judgment, not calculation. [233] The standard of proof for evaluation of hypothetical events that may affect an award of damages for future loss of earning capacity is simple probability rather than balance of probability: see Athey at para. 27: [27] Hypothetical events (such as how the plaintiff's life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, [1985] 1 S.C.R.

146. For example, if there is a 30 percent chance that the plaintiff's injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.). [234] As well, the Court of Appeal in Rosvold noted at para. 9 that "[p]ossibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are real and substantial possibility and not mere speculation." [235] Pursuant to Rosvold, at para. 10, other factors arising from the evidence are considered, including: 1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment; 2. whether the plaintiff is less marketable or attractive as an employee to potential employers; 3. whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and 4. whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market. The plaintiff's position [236] The plaintiff's position is that she will work only part-time in the

future. Currently, the plaintiff earns $32.94 per hour. The plaintiff's collective bargaining agreement stipulates that a nurse's evening shift premium is 70ȼ per hour. Effective April 1, 2006, the night shift premium is $3.50 per hour. Additionally, an employee shall be paid a weekend premium of $2.30 per hour for each hour worked between 11 p.m. on Friday and 11 p.m. on Sunday. Effective April 1, 2001, an employee shall be paid a super shift premium of $1.00 per hour for each hour worked between 11 p.m. Friday and 7:30 a.m. on Saturday, and between 11 p.m. on Saturday and 7:30 a.m. on Sunday. The premium shall be in addition to night and weekend premiums. It is submitted that these premiums should be factored into the plaintiff's future loss of earning capacity. The plaintiff has also lost the opportunity to earn overtime pay it is submitted. Regular part-time employees get the two times overtime rate: 1. For all hours worked over four consecutive extended (8 hour +) shifts; 2. For all hours worked over six consecutive standard (7.2 to 8 hour) shifts; 3. For all hours worked over five consecutive shifts where three or more are extended shifts; 4. For all hours worked over six consecutive shifts where four or more are standard shifts; and 5. For all hours worked over 216 straight time hours over the course of three bi-weekly pay periods. [237] The plaintiff submits as well

that she will miss the opportunity of evening shift premiums, night shift premiums and overtime pay. She relies on the testimony of Ms. Mak and Mrs. Aulakh that a nurse is less likely to be promoted if they work fewer hours. In the plaintiff's submission, the evidence establishes that the Accident has limited the number of hours that she can work. [238] The collective bargaining agreement states that between April 1, 2015 and February 1, 2019, nurses shall receive a 5.5% raise, regardless of level. It is submitted that a raise of 5.5%-6.5% should be considered, in addition to post-2019 economic variable calculations when factoring in the plaintiff's loss of earnings. [239] It is submitted that the plaintiff will (and would have faster, but for the Accident) move up to higher levels. The plaintiff testified that she declined shifts due to her pain. Each higher level is consistent with a pay increase. Pay will also increase according to the number of years that a nurse has been employed. For casual employees, a nurse must be employed 1,950 hours to move from a First Year to a Second year (and so on to Nine Year, which is the maximum). Ms. Mak and Mrs. Aulakh testified that when a casual employee begins work on a "line", the number of hours worked as a causal is transferred into a date, the "Anniversary Date". Each year, on the Anniversary Date, the employee will move up a Year.

It is submitted that the plaintiff is disadvantaged in two ways: (i) in the ability to compete for "lines"; and (ii) in the ability to move up in "years". [240] The plaintiff attempted to perform full-time duties between January 4 and January 7, 2017. She testified that after experiencing great pain and fatigue, the plaintiff did not take any further full-time rotations. All subsequent regular duty shifts have been broken into two or three consecutive shifts, not four. It is submitted that the plaintiff will possibly find a suitable part-time "line" within three years. Part-time work is described as a fraction of full time work, and is ascribed a full time equivalent ratio ("FTE"). For example, full-time work has an FTE of 1.0. Full time employees work an average of 36 hours per week calculated over the length of the rotation. Part-time work has an FTE of 0.51. Regular part-time employees are those who are regularly scheduled to work a minimum of fifteen hours or equivalent per week but less than the full hours. [241] After two years as a casual employee at Level 1, earning $32.94 per hour with a 1.5% union increase, the plaintiff calculates the following for her lost earnings once she works on a part-time "line" until the age of 65: i. one year as a First Year at Level 3, earning $32.94 per hour with another 1.5% union raise; ii. one year as a Second Year at Level 3, earning

$34.20 per hour with another 1.5% union raise; iii. one year as a Third Year at Level 3, earning $35.46 per hour with a 1.5% union raise; iv. one year as a Year Four at Level 3, earning $36.73 per hour with a 1.5% union raise; v. one year as a Fifth Year at Level 3, earning $38.01 per hour with a 1.5% union raise; vi. one year as a Sixth Year at Level 3, earning $39.27 per hour with a 1.5% union raise; vii. one year as a Seventh Year at Level 3, earning $40.54 per hour with a 1.5% union raise; viii. one year as an Eighth Year at Level 3, earning $41.74 per hour with a 1.5% union raise; ix. one year as a Year Nine at Level 3, earning $43.24 per hour with a 1.5% union raise; x. a promotion to Level 4, and seventeen years as a Year Nine, earning $48.00 per hour with a 15% union raise. [242] Calculating the part-time earnings working 20 hours a week for 52 weeks, accounting for the evening shift premiums, night shift premiums, and special shift premiums, or overtime pay that the plaintiff will and will not receive, the plaintiff arrives at $1,295,441.98 for loss of future earning capacity. [243] The plaintiff submits that the matter can also be looked at by calculating the average salary of a full-time nurse salary at $76,029 divided by two as the plaintiff can only work part time and multiplied by 39 (the number of years that the plaintiff will work before retiring at age 65), in

which case the figure arrived at is $1,482,565.50. [244] The plaintiff consequently claims $ 1,000,000 to $1,500,000 under this head of damage. The defendants' position [245] The defendants submit that the plaintiff in this case should be entitled to an amount roughly one to one-and-a-half times what would have been full-time earnings which would allow for that same period for her to engage in a specified focused treatment plan under the guidance of a medical practitioner, be that a physiatrist, a neurologist or an orthopedic surgeon who specialises in the treatment of thoracic outlet syndrome. [246] The defendants argue that a capital asset approach should be the preferred analysis and that one to one and-one-a half years equivalent in wages would be an the appropriate figure. [247] The defendants anchor this submission in the fact that the plaintiff has not yet worked a full year, in fact she stated that she only finished her orientation to the end of February. There is no evidence of how many shifts she has actually turned down or have in fact been offered to her or will be offered to her in the near future. The plaintiff has stated that she turns down shifts, but when asked directly about her previous week's schedule, the plaintiff struggled to recall what shifts she had worked the week prior to testifying. The Plaintiff testified that she has applied for a part-time line,

but no evidence was put forward as to what other positions may be available either currently or in the near future. Ms. Mak noted that pediatric emergency positions are always open but she was unable to comment further on what kind of roles would be available or whether they would be suitable for the plaintiff. The plaintiff had only just informed her supervisor Ms. Mak very recently (April) of her issues. Ms. Mak was unable to say what roles would be suitable for the plaintiff. As well, Ms. Mak testified accommodations can be made to permanent employees but not to a casual employee. Ms. Mak did not testify of what, if any, accommodation would or could be made for Ms Sharma when she became permanent. The defendants submit that if, as Dr. Hummel postulates, she follows a specific treatment plan and does in fact experience some recovery, she may be able to work 75% or possibly even 100% FTE. [248] The defence argues furthermore, there are many likely roles in the future for the plaintiff including that there may be a supervisory or less physical role that she would be able to perform full time, as she moves up the seniority ladder, such as the Outpatient Clinic which is considered to be a desirable position. [249] The defendants submit consequently that it is not clearly established that the plaintiff will forever remain only capable of working 50% of the time. The plaintiff had

testified that "I can do my job well, on first and second day I can do it very well, but not on the third and 4th day, if I get called for a 4 hours shift I can do it well, I can do my job." This, the defendants argue, is proof that the plaintiff can work three days in a row. With further rehabilitation, targeted rehabilitation, it is in the defendants' submission that is more likely than not that the plaintiff could quite easily find herself being able to do a full three days and then potentially four day in a row and full time hours. [250] For all these reasons, the defendants submit that the capital assets approach, with one to one and-a-half years wages to guide the figure, is a more appropriate approach to analyze any future loss of earning capacity. In addition no economist report has been provided, which would assist in the earnings approach. Discussion [251] The evidence before the Court demonstrated that being a nurse is a difficult job and that the plaintiff had selected pediatric work as a field that she felt she could manage. Nursing is a highly demanding profession, requiring care and attention to patients who must be treated even though they may weigh more than the plaintiff or who may fall or have any other kind of incident. It will be necessary for the plaintiff to move them from time to time. Even in pediatrics, there are some adolescents who weigh as much as

adults that the plaintiff must ensure are positioned properly. [252] I find, as a consequence of the Accident, that the plaintiff has been rendered less capable of earning income from all types of employment, including all types of nursing. This renders her less attractive and less marketable to potential employers, and she will be unable to take advantage of all job opportunities which might have otherwise been available to her had she not been injured. [253] The plaintiff is also less valuable to herself given that she must spend long periods of time recovering in between her work. [254] Turning to the injuries, Dr. Esmail opined that she had likely suffered occult damage to the zygapophyseal joints of the cervical spine and damage to the inter-spinous ligaments, resulting in complaints of pain. Dr. Esmail stated in his report: The issue of her long term employment career occupation should be addressed as I believe the neck injury will likely prevent her from doing regular nursing type of employment on a long term basis. [255] Dr. Hawkeswood opined in his report that the plaintiff "should be able to pursue a career in pediatric nursing", but he expected "that full-time employment will probably lead to worsened pain symptoms, inclusive of both headaches and neck pain." He found that "more likely than not that Ms. Sharma will miss an occasional sick day on account of injuries

sustained in the subject accident - above and beyond any anticipated future neck pain absent the MVA." Dr. Hummel, called by the defence, also agreed that the plaintiff likely has intermittent thoracic outlet syndrome. [256] In respect of her emotional health, the plaintiff was severely anxious when she was in Edmonton. However, I find that this anxiety was related to her being away from her family while studying nursing at that time. I find that her emotional state has returned to normal since her return to the Lower Mainland. However, she was also suffering from anxiety while being driven, as a consequence of the Accident, and she would experience stiffness in her neck and would tense up in her upper body. Her anxiety was still happening when Dr. Hawkeswood saw her in November of 2016. [257] She related to Dr. Riar that her biggest problem was that the Accident had caused her pain and restrictions and now she has numbness in her right arm which she is worried about. [258] Dr. Riar believed that the plaintiff has somatic symptom disorder where pain is a prominent feature and, at the time of his interview with her, her symptoms were of mild to moderate intensity. He also believed that she had general anxiety disorder and major depressive disorder, symptoms which were worse in 2014 and 2015, after which they started to settle. Dr. Riar said that the depressive disorder, while

lingering at the time of his interview with her, was mild to moderate. As noted earlier in these reasons, Dr. Riar wrote that her condition can improve if she seeks cognitive behavioural psychotherapy. [259] Dr. Esmail recommended that she undergo functional capacity evaluation. Ms. Craig in her functional capacity assessment opined that the plaintiff demonstrates the capacity to partially meet the physical demands of her job but she does not have the strength capacity for lifting, pushing, and pulling or the capacity to sustain a stooping head forward position to meet the full scope of her duties. [260] Ms. Craig opined that by pursuing a career in pediatrics, the plaintiff's work duties involved lighter physical demands than that of regular bedside nursing, but that the plaintiff will still be likely to assume postures and complete tasks that are aggravating to her neck. [261] The plaintiff has a long-term goal of becoming a nurse practitioner that she discussed with Louise Craig, which would be more in keeping with her current functional capacity. However, long periods of work and intensive sitting also result in symptom aggravation, and she will require breaking and pacing as well as optimal ergonomics to manage her symptoms if she assumes this role. [262] Ms. Craig felt that the plaintiff should be assessed by a physical and mental medicine and rehabilitation specialist

for treatment to address her persistent neck and upper back pain and to determine if medical intervention was required. [263] As noted previously, Dr. Hummel, the orthopaedic surgeon called by the defendants, opined that the plaintiff would be able to continue to work, despite some limitations. [264] I am satisfied that the plaintiff has proven on a balance of probabilities that she suffers from thoracic outlet syndrome which is causing numbness and a tingling feeling to her right arm, as testified to by Drs. Hummel and Hawkeswood. [265] While the plaintiff sustained initial jaw problems, I find that those have resolved. I find that she continues to suffer injuries to her head, neck, shoulders and back, and suffers ongoing difficulties with sleeplessness, headaches, dizziness, and some depression and anxiety, all as a result of the Accident. [266] It is important to note, however, that the plaintiff has continued to work s a casual employee and that her employer was not aware of her requiring any accommodation for her work except for on one occasion according to Ms. Mak, and was not aware of her having difficulties performing her work function. [267] Given the two possible approaches to assessment of loss of future earning capacity, being the "earnings approach" and the "capital asset approach" referred to above in Pololos, I find that the capital asset approach is more

appropriate in this case where the losses are not truly measurable in a pecuniary way in such a way that is not dependent on numerous presumptions and not demonstarted yet by the plaintiff given she had just started her employ: see also Perren v. Lalari, 2010 BCCA 140 at para. 12: [12] These cases, Steenblok [v. Funk, (1990), 46 B.C.L.R. (2d) 133 (C.A.)], Brown [v. Golaiy (1985), 26 B.C.L.R. (3d) 353], and Kwei [v. Boisclair (1991), 60 B.C.L.R. (2d) 393] illustrate the two (both correct) approaches to the assessment of future loss of earning capacity. One is what was later called by Finch J.A. in Pallos v. [Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.)] the 'real possibility' approach. Such an approach may be appropriate where a demonstrated pecuniary loss is quantifiable in a measurable way; however, even where the loss is assessable in a measurable way (as it was in Steenblok), it remains a loss of capacity that is being compensated. The other approach is more appropriate where the loss, though proven, is not measurable in a pecuniary way. An obvious example of the Brown approach is a young person whose career path is uncertain. In my view, the cases that follow do not alter these basic propositions I have mentioned. Nor do I consider that these cases illustrate an inconsistency in the jurisprudence on the question of proof of future loss of earning

capacity. [268] In all of the circumstances, I find that the plaintiff has suffered a loss of future earning capacity. However, I am mindful of the various contingencies that may arise, including the possibility that the plaintiff will seek part-time work to raise a family or to pursue further study, and the potential positive impact of future treatment. I am mindful as well that defence expert, Dr. Hummel, had recommended the plaintiff to attend further treatments and that she be seen by a surgeon. I am also mindful that the plaintiff's condition is still being explored. Further, should the plaintiff obtain a line of employment, it is then that she could be accommodated. [269] Bearing these contingencies in mind, I award the plaintiff $280,000 for loss of future earning capacity.

COST OF FUTURE CARE [270] For the cost of future care, the plaintiff is entitled to be compensated based on what is reasonably necessary to restore her to her pre-Accident condition. The award should be based on what is reasonably necessary on the medical evidence to preserve and promote her mental and physical health. [271] I note that Dr. Riar in his report suggested cognitive behavioural therapy. [272] The plaintiff also requires further physical and massage therapy in the opinions of Drs. Hawkeswood and Esmail. Dr. Hummel recommends a targeted approach to deal with her intermittent thoracic out syndrome. [273] I award the plaintiff $10,000 in this regard. IN-TRUST CLAIM [274] With respect to the plaintiff's mother, Mrs. Sharma, who travelled to Edmonton to assist the plaintiff when she started her studies in Edmonton, the claim that is being made is for $454.67. Mrs. Sharma concedes that on other occasions, she went there just to visit her daughter. I allow this claim in the amount of $454.67 given that she helped the plaintiff establish herself in Edmonton to get her started off with her studies. special damages [275] Special damages have been agreed between the parties at $4,180.87. summary of the claim [276] I award the plaintiff the following damages: a) Non-pecuniary damages: $100,000.00 b) Past loss of earnings: $8,000.00 c) Loss of future earning capacity: $280,000.00 d) Cost of future care: $10,000.00 e) In-Trust Claim (to the plaintiff's mother): $454.67 f) Special damages: $4,180.87 Total $402,635.54

COSTS [277] If the parties are unable to agree on costs, they may contact the Registry within 60 days to arrange to address costs. "Maisonville J."