Napoleone v. Sharma,


2008 BCSC 1539

Date: 20081112
Docket: M102498
Registry: New Westminster


Gisella Napoleone



Jaspal Sharma


Before: The Honourable Madam Justice Bruce

Reasons for Judgment

Counsel for the Plaintiff

T. Spraggs

O. Wilson

Counsel for the Defendant

S. Avram
N. Radac

Date and Place of Trial/Hearing:

October 20, 21, 22, & 23, 2008


New Westminster, B.C.


[1]                This is an action for damages arising out of a motor vehicle accident that occurred on January 7, 2006 in Surrey, BC. Ms. Napoleone was driving her eight year old daughter to a soccer game when she was rear ended by Mr. Sharma. There is an admission of liability; however the quantum of damages is in dispute.

[2]                The issues surrounding quantum of damages are as follows:

1.          What injuries were caused by the accident and what, in any, remain symptomatic?

2.          Did Ms. Napoleone suffer from one or more pre-existing conditions that would have been symptomatic regardless of the accident?

3.          Has Ms. Napoleone failed to properly mitigate her damages?

4.          What is the past loss of wages and is Ms. Napoleone entitled to an award for future loss of earning capacity?

5.          What special expenses are recoverable and whether monies paid by Ms. Napoleone’s private insurer should be deducted?

6.          Is Ms. Napoleone entitled to an award for loss of housekeeping services?


[3]                The parties made submissions concerning the admissibility of the evidence of Dr. Rondeau who is Ms. Napoleone’s family physician. Also in issue is a CL-19 report the doctor completed for ICBC about six weeks after the accident. The defendant’s counsel conceded that Dr. Rondeau’s clinical records were admissible because she cross-examined Ms. Napoleone at large on these records. She also agreed that Dr. Rondeau’s evidence concerning his observations about Ms. Napoleone’s condition, as well as any necessary clarification of his clinical notes, was admissible. The dispute centred upon the medical opinions contained in the CL-19 and as elaborated upon in Dr. Rondeau’s viva voce testimony.

[4]                The defendant’s objection is based upon the failure of the CL-19 to qualify as a medical/legal report. The CL-19 does not contain a statement of the expert’s qualifications, the facts upon which the opinion is based, and the reasoning behind the opinions expressed. In particular, the defendant is opposed to Dr. Rondeau’s statements that Ms. Napoleone suffered from post traumatic stress disorder and that she may have myofacial pain syndrome.

[5]                Ms. Napoleone’s counsel argues in favour of the admissibility of Dr. Rondeau’s opinion evidence despite the inadequacies in the CL-19 report. It is apparent that for several months before trial counsel made efforts to persuade Dr. Rondeau to provide a medical/legal report. He brought on a motion to seek an order for the production of a report but was unsuccessful. The learned Master did order the clinical notes disclosed and, when Dr. Rondeau supplied those records, they were copied and sent to the defendant’s counsel. Counsel also gave notice that it intended to rely upon the opinions expressed in the CL-19 report.

[6]                Clearly both parties’ positions have merit. There was nothing further Ms. Napoleone’s counsel could have done to secure a report from Dr. Rondeau that complied with the Rules of Court. On the other hand, Mr. Sharma’s counsel had no notice of the nature of Dr. Rondeau’s opinion and an adjournment of the trial at this late stage would not have been appropriate.

[7]                I heard Dr. Rondeau’s evidence in a voir dire subject to a ruling on its admissibility. In my view, apart from his observations of Ms. Napoleone’s symptoms and his chronology of events, his testimony had very little probative value. First, Dr. Rondeau did not diagnose Ms. Napoleone as having myofacial pain syndrome. This was simply a question in his mind when he completed the CL-19 form about six weeks after the accident which was far too soon to make such a diagnosis. Second, although he observed some signs that she suffered from post traumatic stress disorder, there was also no definite diagnosis of PTSD at the time the CL-19 was completed. It is also my view that the diagnosis of such psychological conditions may well be outside the expertise of a family physician. Accordingly, the weight that could be applied to the opinion evidence of Dr. Rondeau is very limited.

[8]                In these circumstances, it is appropriate to exercise my discretion in favour of the defendant and exclude Dr. Rondeau’s opinion evidence. The CL-19 does not meet the minimum requirements for a medical/legal opinion and it would prejudice Mr. Sharma if I were to admit the evidence despite its deficiencies. On the other hand, even if I were to admit Dr. Rondeau’s opinion evidence, it adds little to the plaintiff’s case.


[9]                Ms. Napoleone was 45 years old at the date of the accident and was working part-time as a crossing guard and a noon hour supervisor at the local elementary school near her home in Surrey. Ms. Napoleone’s primary occupation was and continues to be a homemaker and mother to her two children. Ms. Napoleone’s daughter was eleven years old at the time of the accident; she also had a son who was thirteen in January 2006.

[10]            Ms. Napoleone is a high school graduate and the only post secondary education she has is a legal secretary course that did not lead to any form of certification. Before becoming a homemaker, Ms. Napoleone worked as a secretary for the Royal Bank for about fourteen years. She left that job in or about 1995 after losing a child at birth and became a full time stay-at-home mom. Between 2000 and 2004 she operated a small day care with four boys as her only charges. In the spring of 2005 she began working part-time at the school. She worked five hours per week doing noon hour supervision and earned $19.45 per hour, including 10% for holiday and sick pay. She also worked two hours per day, three days a week, as a crossing guard at $10 per hour. In the fall of 2008 Ms. Napoleone gave up the crossing guard position because her daughter had graduated to high school. She took on additional hours as a high school noon hour supervisor to replace the crossing guard hours. Apart from these changes, however, Ms. Napoleone is currently doing the same type of work, for the same number of hours, as she did at the time of the accident.

[11]            The rear end collision occurred when Ms. Napoleone was at a complete stop near an intersection. Mr. Sharma was driving a flat bed truck and the impact of the collision caused substantial damage to the Pontiac Grad Prix driven by Ms. Napoleone. The vehicle’s rear end was completely pushed into the back seat and its value was written off as a total loss by ICBC. The force of the collision also drove Ms. Napoleone’s vehicle into the path of oncoming traffic. She managed to push the air bag aside and drive the vehicle quickly to safety before being struck.

[12]            Ms. Napoleone’s upper body was pushed forward and then backward by the force of the collision. Her hands were on the steering wheel at the time of impact and the webs between the thumbs and forefingers struck the wheel. Ms. Napoleone’s first concern was her daughter who was by this time crying hysterically. She immediately called her husband by cellular telephone and he came to the scene a few minutes later. Ms. Napoleone was seen by the ambulance attendants, but did not accompany them to the hospital. She drove home with a friend who happened to see the aftermath of the accident and her husband took their son to his soccer game. There is no dispute that she was wearing a seatbelt.

[13]            Ms. Napoleone’s immediate symptoms included a stiff neck and lower back, pain in her pelvis, swollen hands, and legs that felt weak. The first night after the accident Ms. Napoleone slept badly; she had nightmares about her daughter being injured in the collision. She remained at home all day applying heat and ice to her back and neck. The following day she was very sore and stiff and the swelling in her hands had increased. Ms. Napoleone was also dizzy, confused and had a headache.

[14]            Two days after the accident Ms. Napoleone attended at her doctor’s office. Dr. Rondeau testified that upon palpation, Ms. Napoleone had muscle spasm and tenderness in her thoracic, cervical and lumbar spine, as well as her neck and shoulders and a reduction in range of movement from her neck to her lower back. She also had pain in her hands secondary to the accident and complained of dizziness and difficulty sleeping. He prescribed rest, pain killers and muscle relaxants and recommended that she stay home from work. Although Ms. Napoleone took the pain killers regularly for three or four months, and sporadically thereafter for about one month, she discontinued the muscle relaxant after a month due to an allergic reaction. After about five months on the pain killers, Ms. Napoleone began to take Advil for pain relief based on Dr. Rondeau’s recommendation.

[15]            Ms. Napoleone returned to see Dr. Rondeau complaining of multiple injuries to her neck, hands, shoulders, and back on January 16, 20, 24, and 31, 2006. Dr. Rondeau recorded she was having dizziness, sleep problems, aching hands and a stiff back and neck. In February 2006, after the swelling in her hands had gone, Ms. Napoleone attended a physiotherapy clinic on Dr. Rondeau’s recommendation.

[16]            Ms. Napoleone attended for physiotherapy twice per week. She received ultrasound treatments, massage therapy, and weight training. The physiotherapist taught Ms. Napoleone stretches for her neck and shoulders and back strengthening exercises that she continues to do about once or twice per week. The physiotherapy sessions ended in December 2006 because Dr. Bishop, a specialist engaged by ICBC to examine Ms. Napoleone, was of the opinion that this therapy was no longer necessary. Ms. Napoleone felt the physiotherapy had only helped a little and she would get headaches for a day or two after each session.

[17]            Ms. Napoleone continued to see Dr. Rondeau complaining of recurrent pain in her neck, hands, shoulders and back once per month until October 2006. Thereafter she made no further appointments until January 2008. Ms. Napoleone testified that she went to see Dr. Rondeau in 2007 when her children were ill and during these sessions she informally discussed her own condition. However, Dr. Rondeau did not record these visits as her appointments. When questioned why she stopped seeing Dr. Rondeau, Ms. Napoleone testified that the doctor was always behind schedule and she would have to wait for up to 1.5 hours to see him. This meant she missed work and was unable to take her children to their after school activities. She also testified that it seemed as if her condition had reached a plateau. All of her symptoms remained constant, except the dizziness and pelvic pain which went away after a few weeks. Dr. Rondeau gave her the same treatment advice and counselled her that the injuries would take time to heal. She also learned to live with the pain.

[18]            Ms. Napoleone returned to her jobs at the school in mid March 2006. While she continued to have pain in both her hands, mid and low back pain, stiffness in her shoulders and neck, as well as headaches, she was able to do the physical tasks of the job albeit with some difficulty and pain. The noon hour supervision job required walking and she was able to do this. Lifting the cones for her crossing guard job was too difficult and two students helped her with this task. Until she left the crossing guard job this fall, Ms. Napoleone would go home to rest between the morning and afternoon shift. Before the accident Ms. Napoleone was out doing errands and grocery shopping between shifts; she had no need to rest. She also had to call in sick after the accident unlike before being injured. Ms. Napoleone did not record her sick days and her evidence on this point varied between once or twice to three or four days.

[19]            Ms. Napoleone also went back to doing her volunteer job as the hot lunch program coordinator. This is a twice monthly program that involved shopping for food, preparing lunches, and cleaning up afterwards. After the accident Ms. Napoleone could not do any of the heavy lifting required and she had others prepare the food because her hands were too sore to do this work.

[20]            Currently Ms. Napoleone says she still has sharp pains in her hands which is constant; her back becomes painful once or twice a week after doing some light housework or if she sits or stands too long.  She experiences neck pain almost daily and shoulder pain three to four times per week. While the pain has subsided since the accident, it flares up if she does more strenuous household cleaning like washing the bathtub. The pains in her legs return once or twice per week particularly if she does a lot of walking or sits and stands for too long. She also testified that the leg pain is bad about twice per month. Ms. Napoleone still gets headaches in the back of her neck, but her evidence on how often was inconsistent. This varied between once every three weeks and once per week. She testified that these headaches are different from the migraines she has had since a child. The frequency of her migraines has varied over the years but currently Ms. Napoleone says they are irregular and she has not had one for six months.

[21]            Ms. Napoleone testified that her mood has changed since the accident. She is often cranky and frustrated with the pain and fatigue. Her sleep continues to be disrupted because of pain even with a special pillow purchased to help keep her comfortable. Ms. Napoleone becomes very emotional when she cannot do her pre-accident activities. She testified that before the accident she liked to cook for her family and took pride in her housekeeping. Now she does only light housework and relies on her husband and her children to do all of the heavy chores as well as the cooking. Ms. Napoleone testified that her hands become sore when she prepares food and she is often dropping things. Both her son and her husband testified that Ms. Napoleone has not done any housework since the accident because of her injuries. Mr. Napoleone testified that he and his son now do all the cooking and the regular cleaning tasks.

[22]            Dr. Hershler, an expert in physical and rehabilitative medicine, who interviewed Ms. Napoleone on March 11, 2008, indicated in his report that she does most of the domestic chores (housecleaning, cooking, shopping, and driving). Dr. Hershler also commented that Ms. Napoleone said she can do any activity she wishes, but will register pain while she does it and also experience delayed pain the next day. She also experiences pain in the webs of her hands when she cleans the stove, does any heavy mopping, or cleans the shower stalls. Dr. Hershler testified that Ms. Napoleone advised him that she had gone back to work but still had pain doing the activities associated with her job.

[23]            Ms. Napoleone saw Dr. Hershler at her counsel’s request for the purpose of obtaining a medical/legal report. Dr. Hershler’s report indicates a normal physical examination for the most part and no neurological signs of injury; however, the doctor detected sensitive tender points in the muscles on both sides of the neck and across the shoulders, as well as in the mid back region upon palpation. Dr. Hershler agreed that the pain experience is subjective; however, he believed examination by palpation can detect objective signs of pain that are reliable because of their consistency.  Dr. Hershler’s diagnosis is contained in the following passage from p. 5 of his report:

The history and physical findings are consistent with soft tissue injuries. The major tissue affected is muscle and the loci of these injuries are the neck, shoulders, mid-back and the web spaces of both hands.

There is no evidence of neurological injury. There is no evidence of any loss of range. Any weakness is related to pain. The headaches are probably on the basis of tightness in the neck muscles.

[24]            It is Dr. Hershler’s opinion that these injuries were caused by the subject accident. Although Dr. Hershler was unaware that over the years Ms. Napoleone has had back, neck, and shoulder pain episodes, he testified that unless she was symptomatic at the time of the accident it would not have a material impact on his opinion. He also testified that if a person has for years experienced frequent instances of back, neck and shoulder pain, it is likely this will continue into the future.

[25]            In regard to her past medical history, Ms. Napoleone testified that she had a car accident in 1990 and 1992. While she had a whiplash injury from the 1990 accident, this injury healed completely within a year. She also denied having any ongoing back, neck or shoulder problems at the time of the subject accident. Although Dr. Rondeau’s clinical notes indicate that over the years Ms. Napoleone has come to see him with complaints of back, neck and shoulder pain, there is no record of any such complaints after her visit on September 7, 2004, some 17 months before the accident in January 2006. Before this date Ms. Napoleone complained of neck, shoulder and mid-back pain in August 2002; however, there are no visits in between these dates. The only references to back and shoulder pain in Dr. Rondeau’s clinical notes before 2002 are from 1998.

[26]            Dr. Hershler’s report indicates that her prognosis for the future is guarded. Because she still has symptoms after two years he cannot be certain that she will ever be pain free. However, based upon his belief that her condition can be expected to improve, Dr. Hershler recommended that Ms. Napoleone obtain massage therapy treatments once per week for three months and thereafter monthly for six months. He also advised her to continue with her home based exercise program to strengthen her neck and back and to use a Jacuzzi in a nearby community centre to get the blood flowing in the injured areas. Lastly, he recommended that she walk daily to improve her conditioning.

[27]            In terms of a recovery period, Dr. Hershler opined that he, “expect[s] Gisella will continue to improve over time, but it is likely that she will continue to be symptomatic for at least another year, if not longer.” Dr. Hershler testified that within two to three years, about 80% of patients with chronic pain (lasting longer than 6 months) will improve to the point where the pain can be tolerated (at p. 6). About 10% of chronic pain sufferers will fully resolve after five years. Thus it is only about 10% that never fully recover.

[28]            Ms. Napoleone did not follow up on Dr. Hershler’s advice in regard to massage therapy until July 2008.  She had 11 sessions and then discontinued them in August 2008 even though they were loosening up her muscles and helping a bit. At this time her son had been diagnosed with a serious illness that required a costly medicine. The cost of the medicine, $884 per month, rendered it financially impossible to continue paying for the therapy sessions even though her extended health plan covered 80%. Ms. Napoleone testified that the family could not afford to pay the full amount up front and wait for reimbursement. While Ms. Napoleone continued with her home exercises, she did not walk each day apart from the walking she did while working at the school on noon hour supervision duty. Lastly, she did not attend public pools to use their Jacuzzi because of her belief that the water was unclean.

[29]            Ms. Napoleone was in another accident on December 10, 2007. While there was considerable damage to her vehicle and to the Rav 4 that she struck, Ms. Napoleone testified that she was not injured in this accident. She went to see Dr. Rondeau on January 8, 2008 and he recorded that while Ms. Napoleone had a slight aggravation of her existing injuries, by the time of this visit she had returned to her pre-accident condition.

[30]            In regard to future employment, Ms. Napoleone testified that before the accident she had a long standing plan to go back to full time or part-time work when her daughter began high school in September 2008. She was very keen to obtain a secretarial job with the Surrey school board. Ms. Napoleone testified that she had made inquires of people she knows who work for the school board and there were jobs available. Ms. Napoleone testified that because the pain in her hands now precludes her from typing, she does not qualify for clerical work any more.

[31]            At her discovery in May 2008, Ms. Napoleone said that she had not looked for other employment since the accident; that she was happy doing the noon hour supervision work at the school; and that she would probably stay on with this work in the future. When confronted with this inconsistency, Ms. Napoleone testified that since her son’s illness began in August 2008 the family’s finances have become a serious problem and she was forced to consider a full time job. However, despite the need for additional income Ms. Napoleone has not investigated jobs other than those involving clerical work for the school board. She testified that this is the only type of work she wants to do.

[32]            Ms. Napoleone also testified that her recreational activities are now restricted because of the injuries she received in the accident. While she enjoyed long walks with her husband before the accident, they have only recently started going out for the occasional short walk. The pain in her legs and lower back precluded any walking until recently. Ms. Napoleone’s evidence about walking is suspect. She has been walking as a regular part of her noon hour supervision job since mid March 2006, about two and one half months after the collision. Dr. Hershler’s report also indicates that as of March 2008 she was enjoying her walks and taking the dog out regularly.

[33]            In addition to her son and husband, Ms. Napoleone called two witnesses who testified about the changes they have noted in her physical and emotional state since the accident. Ms. Sawicki has been friends with Ms. Napoleone for ten years. She saw Ms. Napoleone a week after the accident and noticed that she was very stiff and did not move freely. This stiffness has continued to date and was particularly noticeable when Ms. Napoleone held up the crossing guard sign. She also noted a change in her mood. Ms. Napoleone went from being a happy, out going person to one who worried about her future, is in constant pain, and let all the little things bother her. Ms. Napoleone does not socialize as much now; she is tired and not up to their regular dinners out and coffee. Ms. Sawicki also observed a change in the duties Ms. Napoleone performed for the hot lunch program after the accident. She no longer did the shopping for supplies and could not lift the heavy pots used to make the lunches.

[34]            Tracy Hildebrandt also testified about the changes she noticed in Ms. Napoleone since the accident. Ms. Hildebrandt has known Ms. Napoleone for eleven years. She drove Ms. Napoleone home after the accident and observed that she was stiff, in pain, had a headache, and was emotionally distraught. Since then Ms. Napoleone has complained of pain in her hands, neck and back and of regular headaches. Emotionally, she has noticed Ms. Napoleone is easily agitated and does not participate in social activities as often any more. Ms. Hildebrandt testified that Ms. Napoleone was basically a supervisor for the hot lunch program after the accident because she was unable to lift the hot dog steamer.


[35]            Ms. Napoleone argues that as a result of the accident she suffered moderate to severe soft tissue injuries to her back, neck, shoulders and hands. Further, as a result of these injuries Ms. Napoleone experienced headaches, sleep disruption, pains and weakness in her legs, dizziness and mood changes. Applying the “but for” test, Ms. Napoleone maintains the evidence establishes on a balance of probabilities that there is a causal relationship between the accident and the injuries: Resurface Corp. v. Hanke, 2007 SCC 7 and Athey v. Leonati, [1996] 3 SCR 458. Ms. Napoleone argues there is no evidence of a pre-existing condition that interferes with the causal connection.

[36]            Ms. Napoleone argues the range of non-pecuniary damages is $75,000 to $115,000. This range is based upon Ms. Napoleone’s loss of enjoyment of life, including a reduction in her social life, her ability to care for her home and family, and the limitations on her recreational activities and work. A higher award, maintains Ms. Napoleone, is warranted because of the multiple injuries, the duration of her pain symptoms and their severity; the consequential sleeplessness, permanent loss of function, and the emotional stress of a potentially life threatening accident that endangered both Ms. Napoleone and her young daughter. Ms. Napoleone argues that the psychological distress caused by the accident prolonged her recovery from the physical injuries.

[37]             In support of this range of damages, Ms. Napoleone relies upon Deglow v. Uffelman, 2001 BCCA 652, Earnshaw v. Despins (1991), 45 BCLR (2d) 380 (C.A.), Heppner v. Zia, 2008 BCSC 782, Kroeker v. Jansen, [1995] 123 DLR (4th) 652 (C.A.), Lo v. Thompson, 2007 BCSC 1330, Pallos v. Insurance Corp. of British Columbia, 100 B.C.L.R. (2d) 260 (C.A.), Stapley v. Hejslet, 2006 BCCA 34, and Patel (Guardian at litem of) v. Ling, 2007 BCSC 1570.

[38]            Ms. Napoleone argues the evidence supports an award for housekeeping services in the range of $25,000 to $50,000. An award is warranted because Ms. Napoleone can no longer perform the household tasks she regularly performed before the accident and it is not relevant that her family has been doing the household chores in her place without compensation: Kroeker at para. 5 and 9.

[39]            In regard to past loss of wages, Ms. Napoleone seeks compensation for the two-and-one-half months of lost work hours as well as the sick days she had as a result of the accident. She calculates the loss as $1,592.50.

[40]            Ms. Napoleone argues that because she has been left with an ongoing residual injury that limits her employment opportunities, she is entitled to an award for loss of future earning capacity in the range of $75,000 to $180,000. Ms. Napoleone relies upon Dr. Hershler’s report and the evidence of Dr. Rondeau to support her argument that the chronic pain she suffers will likely continue into the future. The test to be applied to determining the future consequences of an injury is simple probability: Athey at paras. 27 to 29.

[41]            Ms. Napoleone maintains that the evidence supports all of the relevant factors in the assessment of loss of capacity: she has been left less capable from earning income from employment; she is less marketable as an employee; she has lost the opportunity to take advantage of secretarial jobs; and she is less able to earn income in a competitive labour market: Pallos at paras. 24 to 27. Ms. Napoleone also argues that a loss of earnings into the future is not a precondition to an award for loss of future earning power; it is the loss of ability to access all occupations previously available to her that is the relevant concern: Palmer v. Goodall (1991), 53 BCLR (2d) 44 (C.A.) and Earnshaw at p. 399.

[42]            Ms. Napoleone argues it is entirely logical that she would have returned to full time or part time work as her children entered high school and, further, that she would have returned to her work as a secretary. Given the family’s financial situation, and the recent illness of Ms. Napoleone’s son, it is far more likely that she would be forced to return to work. However, because of the residual back and hand injury, Ms. Napoleone is no longer able to perform secretarial work. To calculate this loss, Ms. Napoleone says it is reasonable to assess her loss at $20,000 per year until retirement at age 65.

[43]            Ms. Napoleone says an award for the cost of future care should be awarded based on Dr. Hershler’s opinion that further treatment will be needed in the form of massage therapy for the next two years. She also argues for an award to cover the costs of her Advil: Stone v. Ellerman, 2007 BCSC 969 and Klein v. Dowhy, 2007 BCSC 1151. Lastly, Ms. Napoleone claims special damages for Advil, an orthopaedic pillow, prescription medication, physiotherapy, and massage therapy in the amount of $1,708.43. This is the full cost without deduction for contributions by Ms. Napoleone’s extended health plan.

[44]            Mr. Sharma concedes that Ms. Napoleone suffered a mild to moderate whiplash injury in the accident, as well as an injury to her hands; however, he maintains there is no evidence to support a conclusion that she has any permanent disabilities that are related to the accident. In addition to the sparse medical evidence in support of a continuing disability, Mr. Sharma points to the subjective nature of soft tissue injuries and Ms. Napoleone’s exaggeration of her pain and loss of function as significant factors. See, Price v. Kostryba (1982), 70 BCLR 397 (S.C.) and Le v. Milburn, [1987] BCJ No. 2690 (S.C.). In particular, Mr. Sharma argues that Dr. Hershler’s evidence of Ms. Napoleone’s ability to do her job, go for walks, and do housework should be preferred where it is inconsistent with Ms. Napoleone’s testimony.

[45]            Mr. Sharma also argues that when considering an award of non-pecuniary damages, the court should consider the fact that Ms. Napoleone had a pre-existing history of pain in her back, shoulders, and neck. In addition, the court should consider that she has failed to mitigate by discontinuing the massage therapy sessions and by failing to soak in a Jacuzzi as recommended by Dr. Hershler. The other relevant factors, argues Mr. Sharma, include the fact that Ms. Napoleone went back to work without restriction two-and-one-half months after the accident, that she stopped seeing her doctor in October 2006, that she discontinued treatments in or about December 2006, and had a subsequent accident in December 2007 that was as serious as the accident in January 2006.

[46]            The range of damages for non-pecuniary loss, says Mr. Sharma, is between $11,000 and $19,000. In support of this range, Mr. Sharma relies upon Huynh v. Vo, 2006 BCSC 1736, Sidhu (Litigation Guardian of) v. Brassel, 2005 BCSC 347, McAvena v. Kabatoff, 2003 BCSC 629, Kanani v. Misiurna, 2008 BCSC 629, Vassone v. Wade, [1996] BCJ No. 1068 (S.C.), and Ross v. McWhinnie, 2008 BCSC 521.

[47]            Mr. Sharma agrees with the past wage loss from January 9 to March 10, 2006 as calculated by Ms. Napoleone; however, he disputes compensation for sick days because the evidence is not reliable. In regard to future loss of capacity, Mr. Sharma maintains there is no basis for an award because Ms. Napoleone has not suffered any permanent injury or loss of function: Pallos at p. 2. In addition, Mr. Sharma argues the calculation of future loss of capacity posed by Ms. Napoleone is not supported by the evidence. First, there is no cogent evidence that she intended to return to work full time or part-time in the clerical field. At the time of discoveries in May 2008 she planned to continue her work at the school as a noon hour supervisor. Second, there is no evidence before the court of the income earned by secretaries. Third, there is no evidence Ms. Napoleone had taken any steps to prepare herself for a return to clerical work when her daughter entered high school.

[48]            At most Mr. Sharma argues one year’s salary could be awarded to Ms. Napoleone based upon Dr. Hershler’s opinion that by that time she would be fully recovered: Vassone and Moyes v. Gerber, [1992] BCJ No. 828 (S.C.)

[49]            In regard to special damages, Mr. Sharma argues against compensation for the orthopaedic pillow and Advil because there is no evidence of their cost; he argues against gross recovery for the cost of massage and physiotherapy and maintains Ms. Napoleone has not proven the prescription receipts are all accident related. In regard to an award for housekeeping, Mr. Sharma argues there should be no award because of the lack of evidence of the cost and the number of hours required. He also maintains no award should be made because rehabilitation efforts will in future render Ms. Napoleone capable of doing this work: Heinze v. Dulay, 2008 BCSC 969 and Kartz v. Carlson, 2006 BCSC 716.



[50]            I am satisfied that Ms. Napoleone suffered a moderately severe whiplash injury as a result of the accident in January 2006 that involved her upper, mid and lower back, neck, and shoulders. In addition, I am satisfied Ms. Napoleone suffered an injury to the web spaces between her thumbs and forefingers on both hands when they struck the steering wheel upon impact. As a consequence of these injuries, I accept that Ms. Napoleone suffered muscle stress headaches in the back of her neck that were distinct from her migraine headaches.  Further, I accept that she had difficulty sleeping because of the pain from her injuries and, at least initially, because of the emotional distress caused by the serious nature of the accident.

[51]            There is also cogent evidence that as a result of these injuries Ms. Napoleone was incapable to performing her crossing guard job and her noon hour supervision work from January 9 to March 10, 2006. Further, it is apparent that the pain Ms. Napoleone suffered as a result of these injuries was significant enough to warrant frequent and regular appointments with Dr. Rondeau up until October 2006 and twice weekly physiotherapy treatments from February 2006 to December 2006.

[52]            After December 2006, however, there is no evidence that Ms. Napoleone sought medical treatment for her injuries. While Ms. Napoleone continued to do the exercises and stretches she was taught by her physiotherapist once or twice per week, she did not return to her doctor or seek other types of therapy until July 2008 when she began a course of massage therapy as recommended by Dr. Hershler. Moreover, Ms. Napoleone went to work and carried out her regular duties during this period with only limited discomfort as corroborated by the evidence of Ms. Sawicki and Ms. Hildebrandt. With her return to regular work duties, Ms. Napoleone was also capable of engaging in her only physical recreational activity: going for walks. As walking was a regular part of her job each day, it is likely that she was capable of returning to her pre-accident recreational walking soon after she returned to work.

[53]            The other aspect of Ms. Napoleone’s life that was affected by the accident is her ability to care for her family, to cook for them, and to clean her home. Because of the severity of her injuries, I find it is unlikely she was able to do any housework or cooking in the first few months after the accident. This conclusion is consistent with the time off work, the frequent and regular attendances at her doctor’s office, and the treatment sought by Ms. Napoleone. I am not satisfied, however, that Ms. Napoleone continued to be totally disabled from doing housework and cooking after December 2006. Her evidence and that of Mr. Napoleone and her son is inconsistent with what Ms. Napoleone advised Dr. Hershler in March 2008.

[54]            In my view, Dr. Hershler’s report is a more accurate reflection of Ms. Napoleone’s current ability to carry out household chores and to engage in other physical activities. She is capable of doing all her pre-accident activities; however, when she does some of the heavier household tasks, such as washing the bathtub or mopping the floors, she registers pain and then experiences delayed pain the next day. She also experiences pain in her lower back with prolonged walking, standing, and repetitive lifting. Dr. Hershler’s report contains no reference to dropping things.

[55]            In regard to the prognosis for the future, there is no medical evidence to suggest Ms. Napoleone’s condition will not improve or that she will unlikely experience a full recovery. Dr. Hershler recommended massage therapy, exercise, and Jacuzzi treatments because he believed Ms. Napoleone “will continue to improve over time.” While he also suggested Ms. Napoleone may be symptomatic for another year or longer, Dr. Hershler’s report gives no indication that she will have a permanent disability. The fact that his prognosis was “guarded” stems from an inability to be certain as to the recovery date and the extent to which she will recover. When one considers that only 10% of chronic pain sufferers never fully recover, there must be more cogent medical evidence to support a conclusion that Ms. Napoleone falls within this category of patient.

[56]            The authorities cited by the parties are helpful as a general guide in regard to the quantum of damages under this heading. However, each case must be decided upon its own facts. None of the facts in the authorities cited are identical to Ms. Napoleone’s circumstances. Considering these authorities as a guideline, the multiple areas affected by the whiplash injury, as well as the injury to her hands, the duration and severity of the pain suffered by Ms. Napoleone, the consequential impact on her sleep and the resulting painful headaches, the adverse impact on her emotional state, the limitations on her work functions and recreational activities, and her ability to do household chores, I find an award of $35,000 is appropriate. This award is based upon my assessment that until December 2006 Ms. Napoleone probably suffered significant pain and discomfort as well as functional limitations on her work, household chores, and recreational activities. Since that time her condition has improved to the point where, although she continues to have some pain, Ms. Napoleone is able to perform most of her household chores, is capable of managing her pre-accident employment, and is back to her normal recreational walking.

[57]            In addition, I am not satisfied that Ms. Napoleone suffered from a pre-existing condition that would have become symptomatic regardless of whether she was involved in the January 2006 accident. In other words, there is no evidence of a pre-existing and on-going back, neck, or shoulder disability that breaks the chain of causation. The last time Ms. Napoleone reported back pain to her doctor was in September 2004, well over a year before the accident. Before this date her reports of pain in the back, neck and shoulder areas were infrequent and separated by long periods when she was asymptomatic. Both Dr. Rondeau and Ms. Napoleone testified that she was healthy and pain free at the time of the accident and there is no evidence to support a contrary finding.

[58]            I am also satisfied that the accident Ms. Napoleone had in early December 2007 has had no continuing impact on the severity of her injuries or delayed her recovery. While the damage to the vehicles was significant, there is no evidence to support an inference that Ms. Napoleone suffered new injuries as a result of this collision or experienced more than a nominal aggravation of her existing injuries. Thus the December 2007 accident is not a factor that breaks the chain of causation or gives rise to a reduction in the award for non-pecuniary damages.

[59]            There is also no proof of a failure to mitigate. Ms. Napoleone followed the recommendations of her physician and engaged in a long period of physiotherapy. Although she delayed in commencing the massage therapy sessions, there is no evidence that this delay worsened her condition. I am also satisfied that it was reasonable for Ms. Napoleone to eschew attendances at public Jacuzzis because of her concern about cleanliness. I think many reasonable people would have the same reaction. While at first blush her decision to discontinue the massage therapy for financial reasons was somewhat questionable in light of the 80% coverage from her extended health plans, this overlooks the fact that she had to pay up front between $100 to $125 per week and then claim for reimbursement. For those on a limited budget this monthly cost of $400 to $500 is understandably beyond their means. This is particularly the case for Ms. Napoleone who was faced with a monthly prescription bill for her son of $884.


[60]            Mr. Sharma agrees that Ms. Napoleone is entitled to her wage loss in the amount of $1,474.15. He argues against any further compensation for sick days taken after her return to work. I agree. There is no evidence of the dates of the absences or the specific reason for the absences. There is no reliable evidence of the number of such absences. Ms. Napoleone’s evidence was inconsistent as to the number of days she reported sick. Thus I award $1,474.15 under this heading.


[61]            To warrant an award for future loss of earning capacity there must be some evidence that Ms. Napoleone suffers from a permanent physical disability that may have some impact on her capacity to work and earn income in the future. This precondition is clear from my reading of the Court of Appeal decision in Pallos. In this case, there is no evidence of Ms. Napoleone’s future prognosis apart from Dr. Hershler’s report from March 2008. Although it is Dr. Hershler’s opinion that Ms. Napoleone may take another year or longer to become asymptomatic, he does not suggest her pain will be permanent. A guarded prognosis, although registering uncertainty about the future, is insufficient to justify a conclusion that Ms. Napoleone will probably be disabled into the future. Indeed, Dr. Hershler believes she will continue to improve over time.

[62]            It is also apparent that Ms. Napoleone has continued to work at her pre-accident employment since March 2006 and has thus not lost any income since that time. In terms of future plans, in May 2008 Ms. Napoleone testified during her examination for discovery that she was content with her job at the school and was not seeking alternate employment. At trial Ms. Napoleone testified that she has had a long standing plan to return to a clerical position once her daughter entered high school in September 2008. She had investigated office jobs with the school board and had set her sights on a secretarial position. In cross examination, Ms. Napoleone explained the inconsistency in her evidence was due to the serious illness contracted by her son in August 2008. His illness and the cost of medication necessitated her return to more lucrative employment. In my view, Ms. Napoleone’s explanation is not entirely credible. Her son’s illness does not explain her reference to a long standing plan to return to secretarial work and there is no evidence that her son’s illness is permanent. Indeed, he had gone back to school by the time of the trial. The fact that Ms. Napoleone refused to consider any other type of job tends to cast doubt on her evidence that the family’s finances demanded that she obtain a better paying lob. Lastly, there is no evidence that before the accident Ms. Napoleone had taken any steps to re-qualify for secretarial work.

[63]            In my view, it is more credible that Ms. Napoleone would have continued with her job as a noon hour supervisor at the local schools regardless of whether she had been injured in the accident. It is simply not credible that she was planning a return to secretarial work in the future.

[64]            In addition, I am not satisfied that there is any medical evidence to support a conclusion that Ms. Napoleone would be unable to carry out the duties of a secretary. In particular, there is no medical evidence to support an inability to type because of hand pain or sit for long periods due to back pain. Because Ms. Napoleone’s evidence as to her functional capacities was inconsistent, and therefore unreliable, I am loath to accept her evidence without any supporting medical opinion.

[65]            Mr. Sharma cites authorities that have given limited awards for future loss of earning capacity based upon a fixed time period of disability. In this regard, it is apparent that, according to Dr. Hershler’s opinion, Ms. Napoleone is likely going to be symptomatic for another year and will thus suffer pain while she carries out her jobs at the schools. This eventuality may be compensated by a time limited award for loss of future earning capacity. The most recent income tax return in evidence is from 2006. In that year Ms. Napoleone earned $3,158 from her jobs at the school. Absent her 2007 tax assessment, I find this is the best evidence of what her income for the ensuing year might be. Accordingly, based upon the capital asset theory of loss, I find that for the next year Ms. Napoleone’s earning capacity will be adversely affected by her pain symptoms. Thus an award based on one year’s income in the amount of $3,158 is appropriate.


[66]            Based upon my conclusion that up until December 2006 Ms. Napoleone was probably unable to do her housework or cook for her family, I find an award under this heading for past loss of housekeeping services is appropriate. However, there is very little evidence to assess the quantum of such an award. There is no evidence of what Ms. Napoleone would have had to pay for housekeeping services if her family had not done this work for her. In addition, there is no evidence of how many hours Ms. Napoleone’s family contributed to household chores. Accordingly, I find only a nominal award is warranted. This award is based an assumption that a housecleaner would have to be paid the minimum wage and that at least three hours per week would have been spent by the family on chores that, but for the accident, Ms. Napoleone would have done herself. This results in an award of $1,248 for 2006.

[67]            In addition, I find that a similar nominal award is warranted for 2007 and 2008 up to the date of trial based upon Ms. Napoleone’s inability to do all her chores without experiencing pain as described in Dr. Hershler’s report. Thus based upon minimum wage for three hours per week Ms. Napoleone is entitled to an award of $2,208 for 2007 and 2008 up to the date of trial.

[68]            Lastly, an award for the cost of housekeeping over the next year should be awarded as a cost of future care. This award is based upon Dr. Hershler’s evidence that Ms. Napoleone will likely be symptomatic for the next year. The sum of $1,248 is appropriate based upon three hours per week at minimum wage. In total, I award $4,704 for loss of housekeeping services.


[69]            I am satisfied that all of the special expenses claimed by Ms. Napoleone are reasonable. Ms. Napoleone gave evidence about the cost of her orthopaedic pillow and the Advil she uses for pain relief and I accept her evidence as credible. The only real issue is whether the defendant should be responsible for the gross cost of the massage therapy and the physiotherapy sessions rather than the net cost after deducting the private insurer’s contribution.

[70]            Ms. Napoleone argues the defendant should not enjoy the benefit of Ms. Napoleone’s private insurance plans. Her family pays for this insurance and thus it is not entirely a windfall. Mr. Sharma argues that only a proven loss should be compensated. No authorities were cited by the parties to support their respective positions.

[71]            While in this case the amounts at stake are not substantial, this is an issue that may have considerable impact on other cases in the future. As a consequence, I am not satisfied it is appropriate to make an order in favour of either party without more extensive argument on this point. Consequently, I ask the parties to provide brief written submissions on this point within 30 days of receiving this judgment. I reserve jurisdiction to determine this issue upon receipt of these submissions.

[72]            I order that the defendant pay special damages in the amount claimed by Ms. Napoleone for Advil ($280.50), prescription medicine ($86.68), and $37 for an orthopaedic pillow. The net cost of physiotherapy and massage therapy (20% of $585 and $719.25) is ordered to be paid by the defendant with the gross cost issue to be determined following the parties’ submissions.


[73]            I have concluded that for one year following the trial Ms. Napoleone will remain symptomatic. Further, Dr. Hershler’s report indicates that she will have need for massage therapy treatments to help restore her pre-accident condition. He recommends twice weekly for three months and thereafter once per month for six months. Ms. Napoleone had eleven sessions between July and August 2008. Given the gap in treatments, I find she will likely need to start again with this therapy and to continue with the massage treatments for the full nine months as recommended by Dr. Hershler. Accordingly, I find an award of $1,228 is appropriate (18 sessions at $68.25). I also find the cost of Advil for the next year is compensable as a cost of future care. Based upon Ms. Napoleone’s costs to date, I find an award of $125 is reasonable.


[74]            In summary, I award the following damages to Ms. Napoleone:

1.         Non-pecuniary damages $35,000.

2.         Past loss of wages $1,474.15.

3.         Future loss of earning capacity $3,158.

4.         Special damages $665.03.

5.         Cost of future care $1,353.

6.         Loss of housekeeping services $4,704.

[75]            The parties may speak to the matter of costs if they are unable to come to an agreement. I retain jurisdiction to address this issue.

“Bruce J.”