IN THE SUPREME COURT OF BRITISH COLUMBIA
Larlee v. Shier,
2008 BCSC 1610
Registry: New Westminster
Luke Randall Shier
Before: The Honourable Madam Justice Morrison
Reasons for Judgment
Counsel for the Plaintiff
Donald J. Kennedy
Counsel for the Defendant
Mark C. Killas
Date and Place of Trial:
October 30-31, 2008
New Westminster, B.C.
Barnes v. Richardson, 2008 BCSC 1349
Gibbs v. Skemp,  B.C.J. No. 680 (S.C.)
Iliopoulous v. Abbinante, 2008 BCSC 336
Jackman v. All Season Labour Supplies Ltd. et al (20 January 2006), New Westminster M091815 (S.C.)
Kahle v. Ritter, 2002 BCSC 199
Paller v. Paller, 2004 BCSC 977
Prevette v. Cusano, 2001 BCSC 489
Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)
Cox v. Bounthavilay, 2007 BCSC 1199
Bohnke v. Venderveldt, 2006 BCSC 75
Densch v. Kirkpatrick, 2007 BCSC 277
Steward v. Berezan, 2007 BCCA 150
Love v. Lowden, 2007 BCSC 1007
Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.)
Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.)
Pallos v. Insurance Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.)
 This is the plaintiff’s claim for damages arising out of a motor vehicle accident that occurred in Delta on August 24, 2005. The plaintiff’s vehicle was rear-ended by the defendant’s vehicle. Liability has been admitted.
 The plaintiff, Janice Larlee, now 62, was 59 at the time of the accident. She was driving her 2002 Mazda four door hatchback south on Highway 99, heading home from work, when she stopped for the bumper to bumper traffic ahead of her. The defendant’s vehicle, a 1993 GMC Jimmy, was unable to stop and rear-ended her vehicle. Damages to the plaintiff’s vehicle were $8,673, and $2,915 to the defendant’s vehicle. The force of the collision was such that the seat assembly was broken in the plaintiff’s vehicle.
 The plaintiff claims for past wage loss in the amount of $6,805.59, non-pecuniary damages in the range of $50,000 to $60,000, cost of future care in the amount of $5,000, and loss of future earnings of $10,000.
 The parties have agreed on special damages in the amount of $2,273.81. The defence agrees to past wage loss in the amount of $4,730.72, but does not agree with regard to any time lost in 2008.
 The defence submits that non-pecuniary damages would be more appropriate in the range of $15,000 to $25,000, that the injuries are not permanent, and there has been no loss of future earning capacity.
 The plaintiff gave evidence, as did her husband, Bob Larlee. Also testifying were Dr. Bradley Kehoe, qualified as an expert in chiropractry, and also in the treatment of soft tissue injuries. The plaintiff’s family doctor, Dr. Robert McKenzie, was also testifying as an expert witness, in family medicine, with expertise in the diagnosis and treatment of soft tissue injuries from motor vehicle accidents.
 The defence called no evidence.
 Mrs. Larlee works in the health care industry. She obtained her Bachelor of Science and Nursing degree from the University of Alberta and her Master of Business Administration from City University in Seattle. For the past 24 years she has worked for the Vancouver Coastal Health Authority, and is presently the Director of Primary Health Care Network. Up until August 1, 2008, she was also a Director of Mental Health and Addiction for the City of Vancouver. She works in the Richmond area.
 At the time of the accident, on impact, she immediately suffered pain in the left neck and shoulder area. Also her wrists, and her knee hit the dashboard. She bruised that knee and her left elbow; those injuries healed within two or three weeks.
 On the second day after the accident, the plaintiff went to see her family doctor for the pain in her left neck and shoulder, as well as her knee and elbow. She was waking every two or three hours because of the pain. She also had headaches. However, the headaches resolved themselves several months after the accident, as did her back pain.
 The pain that has not resolved itself to this point in time is the pain in Mrs. Larlee’s left neck and left shoulder areas. She testified that those areas are painful every day. Along with her pain, she also is suffering from anxiety whenever she is in a car. The anxiety is less if she is driving herself, but if she is a passenger, the only way she can often cope with it is by sitting in the back seat of the car and looking out the side window. This anxiety persists, although it has lessened somewhat as time has progressed.
 Prior to the accident, Mrs. Larlee enjoyed good health. She was used to working long hours, and she was passionate about gardening. Some years earlier, she had been active in sports such as skiing and windsurfing, although she had not windsurfed since 1991, or skied very much for the last 15 years.
 Mrs. Larlee lives with her husband, who is retired, in their single family home. She has been a lifelong piano player, and also plays the accordion.
 The main complaints of the plaintiff are that she has suffered significant, ongoing, chronic and permanent left neck and shoulder pain, and continuing anxiety, all caused by the motor vehicle accident. She has kept working throughout, for the most part. She has continued to work long hours, and at the same time has, on the advice of her doctor, tried a number of different kinds of therapy. She has gone for two different kinds of physiotherapy, massage therapy, acupuncture, and has sought the services of a kinesiologist, a certified personal trainer. She also went once for counselling to a psychologist with regard to her anxiety. She applies ice and heat to alleviate her pain, and uses medications, with apparently limited results.
 Dr. McKenzie, the plaintiff’s family doctor, testified that Mrs. Larlee had no prior neck or shoulder pain, and when asked if she could make a full recovery, his reply was “guarded”. At the point of trial, he said he would say no. He also believed that her personal trainer was the most helpful to her at this point in time.
 In Dr. McKenzie’s opinion letter of April 4, 2008, he stated in part as follows:
... it is my view that Mrs. Weaver (now Mrs. Larlee) suffered a soft tissue injury to the neck and lumbar spine as a result of her motor vehicle accident. It is important to note that she had no previous injury to the neck and lower back and no symptoms prior to her accident.
With treatment Mrs. Weaver has improved. There is room for further improvement. She still experiences recurrence of symptoms in periods of stress, most notably with increased physical activity and sitting for prolonged periods working at the computer. At this time it is not known if she will make a full recovery though it is hoped that with further diligence with her exercise program that she will get to a point where she is near her pre-accident level of functioning though she may be more susceptible to a recurrence of her symptoms in times of physical stress.
It is recommended that she continue with an active exercise program as her sessions with a personal trainer were of most benefit. ... It is also recommended that she see a psychologist to deal with residual symptoms of driver and passenger anxiety. She also may benefit from limited chiropracty treatments in times of symptom flare ups in the future.
 Mrs. Larlee testified that in May of 2008 she suffered a flare up beyond her usual pain, and that she was “suddenly flat on my back.”
 Dr. Kehoe, the chiropractor, began treating Mrs. Larlee on November 30, 2005 up to November 23, 2006, and then in the month of October 2008, she again went to see him because of a flare up of her symptoms.
 Dr. Kehoe testified that he has treated hundreds if not thousands of soft tissue injuries throughout his career as a chiropractor. He testified, “She can function, but she’ll continue to experience levels of pain.” In his medical report of July 30, 2008, filed as an exhibit, Dr. Kehoe observed that Mrs. Larlee “...complied with recommendations and maintained a positive attitude throughout her care. While her job is stressful it appears fulfilling and rewarding.”
 In his conclusion, Dr. Kehoe stated: “My prognosis for a complete return to pre-accident condition is guarded to unlikely, however the progress accomplished back in 2006 suggests a permanent disability is also unlikely.” He believes further chiropractic care would be of greater benefit to her.
 Following the accident, Mrs. Larlee also went to PEARS, this being a prevention program available through her employment to assist employees to come back to work more quickly. In addition to seeking counselling from a psychologist, she also spoke on a more informal basis to some of the psychiatrists with whom she works with regard to her anxiety problems. She continues to do walking and weights on her own, and continues to treat with ice and heat as well as medication for the pain.
 Prior to the accident, the plaintiff did almost all the housework, including the vacuuming. Now she does much less, and her husband does most of the vacuuming. She is unable to garden as she did before. She has not been able to play the accordion at all since the accident. She and her husband have taken only one vacation since the accident. She testified that any use of her left arm results in pain. Her pain is worse at the end of the day. Much of her work involves emails throughout the day, and she says that work is particularly painful for her.
 For the first year following the accident, she found herself at the end of each work day in constant pain and fatigued. She would come home, and lie down. She still has the constant pain, and finds that the ice, heat and medications do not help much. She does much less gardening, very little vacuuming, and plays the piano only on occasion. She and her husband are considering getting a housekeeper to assist with the housework.
 Mrs. Larlee describes the pain that she continues to suffer as starting at the base of her brain, then on the left side of her neck and shoulder, and then radiating down. She stated that when she gets up in the morning, the pain is there. It is daily. It is ongoing.
 The plaintiff has no plans to retire. In the event that there is an amalgamation of health districts and her position might result in her being offered a package, she stated she would still continue to work, looking for work closer to her home. She does not want to retire and has never made any plans to do so.
 Bob Larlee testified that he and his wife have been married for 20 years. Prior to the accident his wife was in good health, she was active and vibrant. She was totally involved in gardening and music, so much so that her activities were “exhausting” for her husband. She never had previous problems with her neck and shoulder. Nor did she ever have anxiety in the car. She was a relaxed passenger, and never complained. She also did most of the housework, including the vacuuming.
 After the accident, Mr. Larlee testified that minor tasks became a problem for his wife, because of her neck and back problems, that this was chronic, although she would always try. He does the vacuuming now. If his wife does do some housework, it results in chronic neck and upper back pain for her.
 When asked if they enjoyed a social life before the accident, Mr. Larlee said, “Absolutely!”. He described his wife playing the piano and the accordion, which is now no longer the case. That if she sits at the piano, it is a chore for her and she plays infrequently. Also, “Gardening was her passion. It handled her stress.” After the accident, he testified that she gardens infrequently, and when she does do some, she is tired and in pain.
 Active holidays occurred before the accident; since the accident, only one holiday has been taken. This was to Hawaii, where Mr. Larlee said they did nothing but sit by the pool, instead of their usual activities.
 Before the accident, he said if his wife had a long day at work she would come home and garden. After the accident, he observed fatigue, and her chronic neck and back pain. He said that this has “totally changed our lifestyle, upside down.” After work, his wife slumps in a chair. She can only use so much medication, plus heat and ice. With regard to their intimate life, he said it has affected that as well.
 As for his wife’s anxiety in the car, that has also been an absolute change. His wife often has to sit in the back seat because her anxiety level is so high. She would grab the handle on her side of the car, and be braking. He testified that he is always fearful of getting her upset. He sees his wife in pain “constantly”, and has seen no improvement in the last year.
 The defence has raised the issue of credibility, particularly with regard to the more recent flare ups experienced by Mrs. Larlee. However, it should be noted that there was no evidence called by the defence, no surveillance evidence, no inconsistent prior evidence, and no evidence to contradict the evidence offered by the plaintiff, or the medical evidence.
 I found both Mr. and Mrs. Larlee to be extremely credible. In testifying, Mrs. Larlee was very low key, and never given to embellishing her evidence. There was a sadness to the evidence of both the plaintiff and her husband. They both described in telling detail the changes to Mrs. Larlee and the change in their lifestyle since the accident.
 Mrs. Larlee has persevered with her work and her career, which she obviously finds rewarding; it is her social and family life that has suffered more. She has availed herself of every possible treatment, showing a positive attitude.
 With regard to time off work, in 2005, Mrs. Larlee took 11.4 sick days, for a total of 85.5 sick hours due to the accident. There were no sick days taken in 2006 and 2007. However, in 2008, she took 5 sick days for a total of 37.5 hours. A note from her on a document states, “I had relapse about two weeks ago. Flat on my back for this time. Saw Dr. McKenzie once I could drive to Richmond. ... left back muscle spasm and pain subsided yesterday (May 27/08) as did left neck pain.” That was apparently a note to her work that was filed in evidence.
 The defence argues that this period of sick time off in 2008 was not related to the accident. That when the plaintiff said that she was “flat on back”, this was something that had not occurred before and involved a different area. That there is no medical evidence linking this injury in May 2008 to the motor vehicle accident.
 I accept the evidence of Mrs. Larlee that this did amount to a flare up of the injuries from the accident. As for the phrase, “flat on back”, within the context of her evidence, I took this to be her figure of speech to describe her level of pain and discomfort. The evidence of the plaintiff throughout has been the chronic pain in her left neck and shoulder, which radiates downward, being the main and persistent cause of her problems since the motor vehicle accident. As Dr. Kehoe testified, the plaintiff can function, but “she’ll continue to experience levels of pain.”
 That Mrs. Larlee is no longer able to give her “famous” accordion renditions at birthday parties for friends and family because of her continuing pain is yet another corroboration of the quiet but very credible and impressive evidence of both Mr. and Mrs. Larlee.
The Position of the Plaintiff
 Counsel for the plaintiff contends that the flare ups are consistent with the rest of the plaintiff’s evidence as well as the medical evidence before the court. That would bring the 37.5 hours of time missed and sick time claimed in the Spring of 2008 within an appropriate claim for past wage loss, bringing the claim to $6,805.59, rather than the $4,730 agreed to by the defence.
 A number of cases were cited for non-pecuniary damages by counsel for the plaintiff where similar soft tissue injuries occurred. The claim of the plaintiff is for significant and chronic permanent pain to the area of her left neck and shoulder. It is also for her continuing anxiety and the problems that that presents.
 In Barnes v. Richardson, a decision in 2008 of Madam Justice Martinson, $100,000 was awarded for non-pecuniary damages, but that was reduced by 15% to $85,000. In Gibbs v. Skemp, a 1998 decision by Madam Justice Bennett, non-pecuniary damages of $55,000 were awarded, although reduced by 10%. The plaintiff in that case did not follow treatment. There was little property damage in that case, and the trial occurred three and a half years after the motor vehicle accident.
 $50,000 in non-pecuniary damages were awarded by Mr. Justice Bernard in Iliopoulous v. Abbinante in 2007. The plaintiff in that case did not miss much work, and there appeared to be little treatment.
 In Jackman v. All Season, $40,000 was awarded in what is often referred to as a no crash, no cash type of case. It was a three vehicle rear ender, with $316 damage to the rear bumper of the plaintiff’s vehicle. The plaintiff was someone who did heavy work, installing pool covers, and he appeared to have a 100% recovery.
 In Kahle v. Ritter, $50,000 in non-pecuniary damages was awarded five years post-accident. The plaintiff could still do pre-accident activities and work, but the plaintiff’s enjoyment was diminished by pain. In Paller v. Paller, chronic pain affected the plaintiff’s enjoyment of life, and $60,000 was awarded in 2004 by Mr. Justice Wilson for non-pecuniary damages. Finally, Mr. Justice Williamson, in Prevette v. Cusano, awarded $50,000 for chronic pain.
The Position of the Defence
 With regard to the May 2008 problems and sick time of the plaintiff, counsel for the defence argues there is no medical evidence linking this to the motor vehicle accident. That the onus is on the plaintiff to establish that complaints of pain are a true reflection of injury caused by the motor vehicle accident and not some other cause.
 In assessing the medical evidence of the plaintiff, counsel for the defence points to the fact that the plaintiff showed a full range of motion of the neck and lumbar spine two days after the accident, and four months after the accident, a normal range of motion was also indicated. Further, that the chiropractor, Dr. Kehoe, stated in his evidence that he did not believe Mrs. Larlee would be unable to do her job because of her injuries. And that that, in fact, has been the case.
 The defence submits that the plaintiff has minor to moderate soft tissue injuries to her neck and back. That there was a substantial improvement in her condition as early as September 2005. The plaintiff has continued to function at a very high level at a challenging job, often working ten hours a day. Mrs. Larlee discontinued chiropractic care in November 2006, and the defence asks the court to conclude that this signified that further treatments were not required.
 The defence acknowledges that the plaintiff missed work in August and September 2005 as a result of injuries sustained in the accident. But the defence does not accept the time off in May 2008 as being referable to the accident. Counsel argues there should be no loss of future earning capacity.
 On the issue of non-pecuniary damages, counsel for the defence has referred to a number of authorities in support of his contention that the appropriate range would be $15,000 to $22,000, and that $20,000 would be an appropriate award.
 The oft-cited case of Price v. Kostryba, the decision of McEachern C.J.S.C., as he then was, in 1982 was cited. In that case, there was a moderate whiplash injury, and, “little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.” Those are the cases that posed difficulties. In this present case, however, there is objective evidence of continuing injury and continuing complaints and manifestations of pain persisting for an extended period of time. It might also be interesting to calculate what an award of $6,000 in 1982 would amount to in today’s dollar.
 In Cox v. Bounthavilay, a decision in 2007 by Madam Justice Baker, an award of $20,000 in non-pecuniary damages was given three and a half years post-accident. The plaintiff in that case missed some days at work at the beginning, but the complaints were largely resolved within one year. The range in that case was estimated to be $10,000 to $35,000.
 In Bohnke v. Venderveldt, Madam Justice Sinclair Prowse in 2006 awarded $20,000 when injuries were resolved 14 months after the accident. At the time of trial, the plaintiff only occasionally had headaches, and pain in her chest and left shoulder.
 Mr. Justice Blair also awarded $20,000 in Densch v. Kirkpatrick in 2007. This involved a minor collision. The plaintiff was a bartender/gardener. He kept working without complaint, delayed seeking treatment, and took no medications. Not all the plaintiff’s claims were accepted or believed in that case.
 In Steward v. Berezan, the award of $90,000 was not appealed. $60,000 was awarded by Madam Justice Gropper in 2007 in Love v. Lowden. In that instance, the level of pain was noticeable but not moderately severe and not debilitating.
 As noted by the defence, the plaintiff did discontinue her chiropractic treatments with Dr. Kehoe after November 23, 2006, but Dr. Kehoe observed at trial that he had not discharged her. She was also doing other treatments, and continuing to see her family doctor.
 When Dr. McKenzie was cross-examined on the plaintiff’s range of motion as noted in his records, he testified full range of motion can be done, albeit with pain, and slowly.
 I am satisfied, based on all the evidence, that the plaintiff has succeeded in proving her claims for special damages in the amount of $2,273, past wage loss in the amount of $6,805, and cost of future care in the amount of $5,000. On the latter category, both Dr. McKenzie and Dr. Kehoe refer to the benefit that the plaintiff may receive from continued chiropractic treatments as well as a continued rehabilitation program with a registered personal trainer. I accept unconditionally the evidence of Mrs. Larlee and her husband that her pain continues to be significant and chronic, and her anxiety continues to cause problems; all of which results from the accident of August 24, 2005.
 In my view, there has been a significant loss of enjoyment of life for this plaintiff. She suffers the pain and discomfort that she has described while working, and particularly while sitting at a computer, which involves much of her day. She will continue to work. Perhaps even more significantly, she has and will continue to suffer the loss of enjoyment of life that has occurred in her life beyond work. There has been a significant and negative change in the lifestyle of Mrs. Larlee, ranging from her day-to-day household activities, her passion for gardening, her lifelong involvement with the piano and the accordion, and an active lifestyle which involved vacations and other activities. Her pain is chronic and ongoing.
 Non-pecuniary damages are awarded in the amount of $60,000. The plaintiff’s claim for future loss of earning capacity is dismissed. There is insufficient evidence to support this claim.
 The plaintiff is entitled to her costs.