2008 BCSC 1696 Orrell v. Lynch

Before: The Honourable Mr. Justice Williams

Reasons for Judgment

Counsel for the Plaintiff:	M. Airton
Counsel for the Defendants:	Robert V. Burns S. Singh
Date and Place of Trial/Hearing:	April 28 – May 1, 2008
	New Westminster, B.C.

INTRODUCTION

[1] This is an action brought by the plaintiff to recover damages for personal injury and other consequential loss as a result of an automobile collision.

BACKGROUND OF THE ACTION

[2] On March 10, 2003, Ms. Orrell was driving her car in the Cloverdale area of Surrey, turning right from 57th Avenue on to 117B Street. She stopped at the stop sign, looked, and then moved up slowly to be able to see to the left and right. At that point, the car behind her ran into the back of her vehicle. She was wearing her lap and shoulder belt at the time, and there is no suggestion that the head-rest in the vehicle was other than properly set. She testified that at the point her vehicle was impacted, she had her head turned to the right. She said her car moved upon impact, something in the order of three feet, and that her body moved forward and was jostled in the incident.

[3] Following the impact, both vehicles came to an immediate stop and there was a brief conversation between Ms. Orrell and the driver of the other automobile, Ms. Lynch.

[4] The property damage resulting from the contact between the vehicles was slight. Ms. Orrell says that she believed that the damage was a scrape to her bumper and some sort of a dent over the left rear wheel on the side of the vehicle.

[5] Evidence was called from the insurance estimator who examined the automobile. He testified as to seeing cosmetic damage to the rear bumper only and nothing in the area near the wheel. In the course of the repair, the bumper was removed and some minor damage was found to have been incurred to the left quarter panel. The cost of effecting the repair was slightly more than $500.

[6] Ms. Lynch, in her testimony, described the incident as her car having bumped into the other vehicle. She said she felt no motion or vibration and that her body did not move or contact the seatbelt. She did not recall the other vehicle being moved by the contact, and described the damage to her own vehicle as a minor scratch, as long as her fingernail. It was not of such magnitude that she considered it worthy of reporting to her insurer, and it was never repaired.

[7] In the evidence, there was some issue raised as to whether or not there was a space between the two vehicles following the contact. I do not consider that particularly significant; the description of the incident and the resultant physical damage to the automobiles satisfies me that this was a low velocity, low impact contact between these two vehicles.

ISSUES

[8] The plaintiff seeks an award for non-pecuniary damages, for wage loss, for loss of future capacity, for the cost of future care and for special damages.

[9] The defendant, Ms. Lynch, admits that she was negligent in the operation of her vehicle, but contests the claim for damages. She says that the plaintiff’s injuries, if any, are fairly described as in the range of minor to mild. She disputes that the plaintiff suffered a significant and persistent injury from the accident. More specifically, she says that the issue of causation is important here: the injuries that the plaintiff claims were unlikely to have been caused by the collision at bar, and there are other aspects of Ms. Orrell’s history that may well account for them. Also relevant to the matter is that this was clearly a very low velocity impact incident.

THE PLAINTIFF’S INJURIES, THEIR TREATMENT AND CONSEQUENCES

[10] The plaintiff says that later in the day, following the accident, she felt dizzy and nauseous with a slight stiffness in her right neck/back area. She left work, laid down and took some Tylenol.

[11] The following day, March 11^th, she went to see her doctor, Dr. Miki. His examination disclosed severe tenderness in her neck and shoulder area. Her range of motion was full. He directed her to apply heat and to stretch the area. In his opinion, she was able to go to work.

[12] She next attended on Dr. Miki on March 28^th. She reported that the symptoms were continuing and had extended to her mid and low back. He found a decrease in cervical lordosis (curvature of the low back) and that there was some limitation in her range of motion. He recommended that she attend at physiotherapy and he also ordered x-rays to be taken.

[13] The plaintiff returned to see Dr. Miki on April 7, 2003, complaining of continuing discomfort in her neck, mid-back and low back. The doctor says he observed very significant tenderness and decreased range of motion about the cervical area. He prescribed Ibuprofen 600 mg. as an anti-inflammatory and Acetaminophen as an analgesic.

[14] On September 10, 2003, Ms. Orrell again saw Dr. Miki. She stated that she still had symptoms in her neck and mid-back after a long day of work or if she was under stress, but reported that the symptoms were, for the most part, tolerable. His examination found a full lateral rotation but a 10% deficit to anterior flexion, and tenderness in the neck and shoulder region. He also documented that she reported some symptoms about her right triceps area, particularly when working with a computer.

[15] The next visit to Dr. Miki was on November 21, 2003, when he found a mild decrease in range of motion of the neck, and tenderness over the right neck and shoulder area and the mid-back. He advised her to continue with the Ibuprofen as needed. She saw him again on April 7, 2004, when he reports his examination indicated tenderness in the upper back/neck and shoulder areas. He recommended that she should continue with physiotherapy and perhaps see a kinesiologist. On November 15, 2007 there was another visit where he reports observing tenderness over the right trapezius and rhomboid muscles. He referred her to physiotherapy. She returned to see him on December 20, 2007 and stated that she was continuing to experience symptoms over her right neck and shoulder area. Finally, he saw her on February 14, 2008 and says that she still had symptoms about the right neck and the right medial scapular area extending down the back of the right arm. He ordered another x-ray.

[16] I will discuss Dr. Miki’s opinion and the results of the x-ray examination later in these reasons.

[17] Ms. Orrell testified that, in the six month period following the accident, she experienced pain in her upper back and shoulder area, on the right side. She said that she sometimes had pain in her right arm and that she had intermittent headaches that started and stopped daily.

[18] She took a series of chiropractic treatments between March and May of 2003; there were twelve visits but they did not cause the pain to resolve. She also sought treatment from a physiotherapist for her symptoms. There were a total of twelve visits in 2003, two in 2005 and one in 2008. According to Ms. Orrell, this treatment provided some short term relief. Finally, she testified that she began massage therapy in 2004 and continued that through 2006. In all there were thirty-six sessions. She found that this treatment helped her considerably, but that the effect was not permanent.

[19] In the period of August through December of 2003, Ms. Orrell says that she had “lots of pain and headaches”. She relied substantially on medication to get through the day. In 2004, she experienced intermittent pain in her neck, back and arm. In 2006, she was pregnant with her son and reports that the time was difficult. In 2007, she was on a maternity leave from work. She has continued to have some pain in her right neck and shoulder area and into the back of her right arm.

[20] With respect to the impact that this accident and the injury have had on her life, Ms. Orrell was, at the time of the event, a Charted Accountancy (CA) student employed with the firm of McMurray Roberts. That entailed a combination of study and work modules. The format is that the student works at the firm under supervision and at the same time studies and does course work structured in a series of modules. At the conclusion of the module, there is an examination to be written. Once that is successfully done, the next component is then undertaken.

[21] At the time she was involved in the collision, Ms. Orrell had completed the first three of the seven modules and was in the process of studying for the fourth. She challenged the examination for that on August 3, 2003, but did not pass. She then further prepared by re-doing the course work and, in January 2004, wrote the examination for a second time and passed. She went on to the further modules following that, passing each. She then challenged and passed the final overall examination, and was awarded her CA designation in 2004.

[22] Ms. Orrell says that, up to the point of the accident, she had found the course work to be hard, but she had managed to pass the tests as they came due. According to her description, the material is difficult and requires hard work. Like others, she had to do her daily work at the firm and then do a good deal of the study on her own time. For a number of months after the accident, she found that the discomfort caused by the symptoms was such that she was not able to work at the same level that she had before. She was tired after her day of work, and she was experiencing pain while studying. As well, the custom as she describes it is that students will, in the usual course of events, work overtime. The arrangement is that the student can later take time off from the firm, in consideration of the time credit that has been created, and that time is used to study for the upcoming examinations. In her case, she says that, as a consequence of the accident, she missed time from work and was not able to accumulate a time credit to study and prepare. As a result, she ended up expending her sick time and her vacation time.

[23] With respect to the claim at bar, it is her contention that there were real, tangible consequences to her progress through the course of study that are directly attributable to the accident. Specifically, she says that she was unable to adequately prepare for the fourth module as scheduled, with the result that she failed the exam, and so there was a lag or delay to her progress. That in turn had financial consequences to her in that the pay increases that are granted upon completion of each step were delayed. As well, she says that the need for her to expend her personal sick time and vacation time in order to study was an outcome that would not have come about but for the accident and the injury she suffered.

[24] Dealing more generally with the impact of this incident on her lifestyle and general routine, Ms. Orrell says that, prior to the accident, she was quite an active person. She was a recreational runner, had recently taken up golf, enjoyed gardening and going to the gym, and had no difficulty with her usual household chores. Since the accident, she says that she is much less active. She doesn’t run, but takes walks or strolls. She gardens less and her involvement in household tasks is quite diminished - her husband does the bulk of it. She also testified that her honeymoon to Hawaii in 2003 was much affected by her injuries, including that she was unable to participate in any significant way in such activities as snorkelling and bicycle riding. In 2006, she and her husband had their first child, a son. The evidence is that Ms. Orrell has found the her ability to actively interact with her son has been limited, such that she feels that there has been a real adverse effect on her experience as the mother of a young child. Finally, she says that her ability to participate in the work of recent renovations that she and her husband have done was limited by the ongoing consequences of her injuries.

DISCUSSION AND ANALYSIS

[25] Central to the position taken by the defence in this matter is a concern about the prior health and history of the plaintiff. It is also contended that the fact of the minor physical damage to the automobiles and description of the event indicate this to have been a low-impact collision, and that should substantially inform the assessment of the bodily injury that Ms. Orrell sustained.

[26] As for the plaintiff’s history, it is not disputed that she was involved in two previous motor vehicle accidents. When she was fourteen years of age, she was a passenger in a truck which flipped over into the ditch. She says that she was not injured in this incident that that there were no ongoing effects from it. There is nothing in the evidence to refute her position on the matter, and I conclude that it was not anything that should be seen as an issue in the present case.

[27] There was also an incident in 1999. On that occasion, she was driving her car when she was struck from behind by a larger and heavier automobile. She says that there was no injury of any moment that resulted from that incident, and denies that she was experiencing any effects from it when she was involved in the accident in November of 2003. However, there is reason to have some reservations about that. Following the accident at bar, Ms. Orrell attended at an insurance claims center where she met with an employee of ICBC for the purpose of providing details of the present claim. In the course of that, she provided a statement to the adjuster; she then reviewed and signed the statement. She does not dispute that, and agrees that her dealing with that agent was pleasant; she does not suggest that she was in any way coerced to say something that was untrue, and agrees that she signed the statement, certifying it to be true. In that statement, the following words appear:

“I had seen my g/p a month previous and had mentioned the pain in my neck and the top of my back. My doctor mentioned to me that he feels that my injury occurred during an accident I had in 1999 and that this just aggravated it. I have always had ongoing pain in my neck and back since 1999. I let it go and did not pursue my injury claim at that time, because I thought an injury claim was for serious injuries, and not for soreness. I just lived with it.”

[28] Ms Orrell does not dispute that she made this statement, but says that it does not reflect the true state of affairs. She denies that she was suffering any injury or discomfort from the 1999 incident at the time of the present accident. I will say more about this shortly.

[29] There is also evidence that Ms. Orrell was involved in what appears to be quite a minor incident while riding as a passenger in a speedboat in 2004, after the accident. Evidently she was bounced or jostled somewhat, but denies that the event is of any relevance to her injuries. I see no basis to conclude that she was injured in that incident in any way that is relevant to the present matter.

[30] Finally, it is suggested that Ms. Orrell has a history of experiencing headaches and physical discomfort brought about by time spent studying. She concedes that she has, in the past and prior to the accident at bar and before the 1999 accident as well, experienced aches and stiffness from time to time, but insists that the discomfort which she attributes to the 2003 accident is different.

[31] I turn now to the medical opinion evidence that is before the court.

[32] Earlier I set out the history of the plaintiff’s attendance on her general practitioner, Dr. Miki. He has also provided his opinion. That is found in two separate letters that were filed. The first was prepared in September 2003 and apparently reflects his view of the matter at that time. The other is an update, written February 21, 2008. As well, he testified at trial.

[33] The defendant too has tendered a medical opinion. Dr. Marc Boyle, an orthopaedic surgeon, conducted an examination of the plaintiff in April 2007. His report dated April 30, 2007, was filed and a video deposition of his examination and cross-examination, conducted April 23, 2008, was received in evidence at trial.

[34] Dr. Miki’s opinion in 2003 was that Ms. Orrell suffered a grade II whiplash associated disorder of the neck, mid and low back as a result of the 2003 accident. He says that the x-rays revealed some malalignment of the thoracolumbar area which was interpreted as a shallow thoracolumbar scoliosis convex to the right which could very well be due to muscle spasms. He observed that there was no significant history other than the motor vehicle accident on March of 1999 which only required two visits to the office. He stated that she was symptomatic (i.e., in September 2003) but that she had improved significantly. He concluded as follows:

The long term prognosis for Ms. Orrell is somewhat guarded in that she has now had two assaults to her vertebral column over the course of four years. The present symptoms have persisted over the past six months, albeit it they are improving. I would conclude that her symptoms will continue to improve over the intervening months but whether she would completely recover is difficult to say at this time.

[35] As indicated, Dr. Miki also provided an updated opinion in his letter of February 21, 2008. At that time, he had in hand the results of the x-ray examination from February 2008, in addition to those from the x-ray taken in 2003.

[36] His current opinion reduces to this: he confirms that there was a grade II whiplash associated disorder of the neck, mid and low back, and that the treatment had been physiotherapy and taken anti-inflammatory medication as well as analgesics. He says that the more recent x-rays show a change in the cervical spine indicating degenerative disc disease which he contends is a consequence of the trauma from 2003. He concludes that the 2003 injury has caused these radiographic changes. He believes as well that Ms. Orrell has Myofascial Pain Syndrome involving her right paracervical and trapezius muscles. He says that the issue of whether she will fully recover is in question, and does not feel that a long-term prognosis can be given at this time.

[37] The opinion of Dr. Boyle is that the plaintiff suffered a Myofascial strain, which he describes as an injury to ligaments, tendons and muscles. He says there is no injury to vertebrae, disc pathology or neurological compromise. In his opinion, there is little, if any, likelihood of late degenerative changes arising in the cervical spine as a result of the injuries sustained in the motor vehicle accident, and he predicts no need for surgery to manage the symptoms. At the time he prepared his report, he had not examined the x-rays; neither those from 2003 nor, obviously, those from 2008. However, when he was examined at the deposition, he had reviewed them and indicates that he took them into account in the evidence he gave.

[38] The proposition that Ms. Orrell’s x-ray showed indications of degenerative disc disease which was likely a consequence of the 2003 accident (Dr. Miki’s opinion) was taken up with him. He expressed the opinion that the difference between the radiographic examination results of 2003 and those of 2008 is not clinically significant in relation to the motor vehicle accident at issue. Rather, it is essentially the norm in the general population of patients in the early 30’s age group, is a usual consequence of the aging process, and cannot be attributed to any event.

[39] He recommends that the appropriate treatment for the symptoms should be in the form of specific proactive stretching and strengthening exercises to her neck, and expects resolution of her symptoms over time.

[40] Both of the doctors agree that Ms. Orrell sustained injuries that resulted in soft tissue injuries – injuries to the ligaments, tendons and muscles. Whether the most appropriate label is Myofascial strain or syndrome is not anything that must be decided for the purposes at hand. The symptoms of those injuries caused her discomfort. Particularly, they resulted in headaches as well as pain in the neck and shoulder area. For the first six months following the accident, these were at their most acute. With the passage of time, there was a diminishment in the discomfort, but nevertheless, at the time of Dr. Boyle’s examination in 2007, symptoms were present, and I accept that they are present now.

[41] The accident at bar was clearly a low velocity collision where the vehicles damage was very minor. In such cases, claims of significant injury are often viewed sceptically and their legitimacy questioned. Furthermore, where the evidence offered in support is largely subjective, and not susceptible of objective proof, it is not uncommon that the plaintiff’s assertions to be challenged as exaggerations. That is certainly part of the position advanced by the defendant.

[42] While there may be some common-sense basis to conclude that a collision of slight force may be less likely to result in injuries of similar severity to an incident where the forces were obviously greater, that is certainly not a principle of law nor is it a proposition in logic that should determine the outcome of such a claim. As for the lack of objective evidence of physical injury and ongoing discernible symptoms, it is well accepted that a court must be cautious in assessing the evidence. The determination must be made in a way that the outcome will be fair to both the plaintiff and the defendant.

[43] I find that Ms. Orrell is an honest witness and accept her evidence of the event and the injuries that she sustained. I am satisfied that she was injured in the collision, and that, as a consequence, she experienced pain and discomfort and disruption to her usual activities. Those have not fully resolved at the time of trial.

[44] With respect to the accident of March, 2003, I conclude that this event is not solely responsible for the pain and discomfort that Ms. Orrell has experienced since that time. It is evident that she experienced headaches and soreness in the back and shoulder area prior to the accident of 2003, particularly when dealing with stressful circumstances such as the demands of intense work and study. This may be partly attributable to her predisposition to react in that way to stress and pressure. As well, I am driven to conclude that the motor vehicle accident of 1999 likely contributed to her condition. That finding is informed by evidence of statements that she made on two separate occasions. One of those was on the occasion of the interview with the ICBC adjuster (described earlier at para. 27). The other was in an answer she provided to her chiropractor’s request for a health history when she attended his clinic approximately two weeks after the accident. There she indicated that the purpose of her visit was with respect to “soreness/stiffness in neck and upper back”. In response to the enquiry as to how long the condition has been present, she stated “4 years but increased recently.”

[45] These two separate assertions by Ms. Orrell are at variance with what she says is the true state of affairs. However, when taken in conjunction with her evidence of soreness from time to time in the back and shoulder area, and the incidence of headaches, I cannot proceed with the analysis at hand on the basis that she was asymptomatic at the time of the 2003 accident.

[46] That is significant in assessing the claim at bar because the defendant can only be held liable for the consequences that were caused by the accident for which she is responsible. In this case, that means the injuries that were a change to the plaintiff’s condition. Specifically, the result was that Ms. Orrell experienced substantially more headaches and discomfort that she had previously, but it cannot be said that all of her health complaints were caused by the accident which the defendant caused.

[47] As for her claim that her ability to perform many of her usual tasks and functions was adversely impacted, that too must be assessed in light of her pre-accident condition, although I accept that prior to March 2003 she was to cope managing with such things as her course of studies. For the time following, that was not the case, and the sensible conclusion is that the injuries from the 2003 accident were the critical difference.

[48] Dealing with her present medical status and what the future holds, I am unable to conclude that Ms. Orrell has met the burden of proving that she is suffering from degenerative disc disease which is attributable to the 2003 accident.

[49] With respect to her prognosis, on the evidence that is before me, I conclude that it is likely that her symptoms should resolve in time, and that a diligent program of exercise, together with an effective management of the stressors in her life will bring about that outcome.

[50] I will now address the specific claims advanced by the plaintiff.

Non-pecuniary damages

[51] The accident and the resultant injuries caused a reasonably significant measure of pain, suffering and loss of enjoyment of life for Ms. Orrell following the event. Considering both her evidence and the first report of Dr. Miki, that effect was most pronounced for a period of approximately six months, but continued, albeit in a less debilitating way, up to the point of trial. It has impacted on her participation in many endeavours, including being physically active in such pastimes as running, going to the gym, gardening, ordinary household tasks and, importantly, being as active with her son as she otherwise would have been. As I have indicated earlier, there are however other factors that must be taken into account, including her pre-accident status and her pregnancy in 2006. Both of those contributed to her discomfort too.

[52] Plaintiff’s counsel says that the injury was substantial and that she continues to suffer from Myofascial pain. It is uncertain how that will resolve. He submits that this accident has had a severe effect on many aspects of her life, and that a substantial award of damages for pain suffering and enjoyment of life is warranted. In his submission, an appropriate award is in the order of $70,000.00. In support of that position he offers the following decisions as useful comparators of non-pecuniary damages:

Lee v. Metheral, 2006 BCSC 1841 - $75,000.00

Jones v. Davenport, 2008 BCSC 18 - $45,000.00

Letourneau v. Min, 2001 BCSC 1519 - $40,000.00

[53] Counsel for the defendant urges a different view of the matter. He says that this case should be treated as a minor to mild injury lasting no more than two years. In his submission, the proper range of quantum for damages for pain and suffering and loss of enjoyment of life is between $12,500.00 and $20,000.00. In support of that position, he has referred this Court to the following decisions on non-pecuniary damages:

Williamson v. Nakishimada, 2004 BCSC 1348 - $20,000.00

Marcelino v. Fransciutti, 2002 BCSC 1711 - $20,000.00

Ross v. McWhinnie, 2008 BCSC 51 - $18,000.00

[54] In addition to those authorities, I have also considered the following decisions:

Jackman v. All Season Labour Supplies Ltd.,

2006 BCSC 2053 - $40,000.00

Sanain v. MacHale, 2006 BCSC 672 - $12,000.00

Rubino v. Lerfold, 2004 BCSC 282 - $17,000.00

Holt v. Von Hertzberg, 2006 BCPC 228 - $12,000.00

Booth v. Hedderick, 2004 BCSC 132 - $7,500.00

[55] In determining the quantum of compensation to which she is properly entitled, I have taken into account the authorities that counsel have provided. Obviously there is no clear linear analysis that can be applied to arrive at a precise figure. It is ultimately an exercise in judgement. I have also factored into my determination the finding, earlier discussed, that her pre-accident baseline was not one that was entirely without symptoms. In my view, the appropriate award of compensation for the pain, suffering and loss of enjoyment of life occasioned by the defendant’s negligence is $30,000.00.

Past wage loss

[56] The plaintiff advances a claim for lost wages. She says that, as a consequence of injuries, she was substantially less able to contend with the demands of her work and the required study necessary to pass the ongoing modules of the C. A. program. Specifically, she says that she was not able to put in the hours of voluntary overtime that would have entitled her to take time away from the job in order to prepare for the module 4 exam, and that there are two consequences that are compensable by the defendant. She has particularized the loss as falling into the following categories:

a) In 2003, subsequent to the accident, she took time off because she felt unable to work. The records that are in evidence show that she took approximately 67 hours off, as personal time, in March. That resulted in her forgoing a paycheque for the period ending April, 15, 2003, in the gross amount of $1,356.37.

b) She also claims that she was denied payment for her vacation taken later in the year for her wedding and honeymoon because she had used the time earlier in the year when she missed work because of her injuries, and so she essentially “spent” her vacation time as a result of her injury. The value of that time was $1,356.37.

There was evidence at trial that the policy of the employer was to permit an employee a certain amount of sick time, and a certain amount of vacation time. Anything taken in excess was charged to personal time and was not paid.

c) In September 2004, Ms. Orrell wrote the comprehensive examination required to obtain the C. A. designation, called the UFE. The test requires extensive preparation. As mentioned earlier, the usual arrangement at the firm where the plaintiff articled was that the student was permitted to accumulate a time credit by working and banking overtime. This bank could then be drawn down by taking time off to prepare to write the UFE, and there would be no interruption in the stream of income. In Ms. Orrell’s case, she says that the injuries from the accident had impacted her ability to work and accumulate overtime, so that she did not have a bank to draw upon in order to take the time off to study. As a result, she took the time but was not paid for it, and so she attributes the lost income to the accident. She says this was a total of seven time periods, and that the cheque for each would have been $1,616.50, for a total of $11,315.50.

d) As described earlier, Ms. Orrell failed in her initial attempt to pass the module 4 examination when she wrote it in September 2003. She then renewed her preparation and rewrote in December 2003. Thus there was a delay in her reaching that milestone and a corresponding ‘lag’ in the attainment of the subsequent stage, the completion of module 5. This is significant to her claim because her employer increased her wages upon completion of each of these standards. In the result, her raises were delayed, and she contends that the consequent loss in her income is thus attributable to the accident. She has offered evidence of the financial impact: the lost wages related to module 4 are claimed to be $1,000 (5 months at $200 per month) and for module 5, $1,800 (6 months at $300).

[57] The defendant disputes the entitlement to these sums. In her submission, there is no direct evidence from Dr. Miki that he considered the plaintiff unable to work or that she should take time off to rest, recuperate or recover. She also takes issue with the plaintiff’s claim that the failure to pass the module 4 test was attributable to pain or soreness from the accident, and says that the standard of proof has not been met. Finally, she says that the plaintiff has not proven to the requisite standard that she missed time from work because of the alleged injuries form the 2003 accident, and says that it is relevant that the plaintiff has had other health issues, including flu and sinus problems that required medical attention and, as well, she has had difficulties with depression.

[58] As I have indicated earlier, I accept that the plaintiff sustained injuries in the accident, and that she was impacted in a significant way, particularly in the six month period that followed. Notwithstanding that there is no clear assertion by her doctor that he directed or authorized her to take time off work, I am satisfied that it was reasonable for her to have done so. I also accept that she was not able to function at or approximately near her standard performance level at that time, and so the time that she missed from her work is a logical consequence of the accident and its results. The two losses from 2003 are compensable. Together they amount to $2,712.74.

[59] With respect to the claims for the lost wage cost of the ‘lag’ that followed form her unsuccessful attempt to pass module four in September 2003, that is compensable. Her record of academic achievement up to that point and, indeed, after, supports her contention that the failure on the first attempt at the examination and then a subsequent success is reasonably attributable to the accident. The loss which she is entitled to recover is $2,800.00.

[60] There is also the claim for time lost in 2004. I conclude that the injuries from the accident in 2003 had an adverse impact on her ability to work at the same level that she had previously. At the same time, taking into account the fact that the time period in question extends up to some fifteen months past the accident, that there was some pre-existing symptomology, and allowing for a contingency factor, it is appropriate that she be compensated to the extent of 60% of the lost wage claim for 2004. For that loss, she is awarded $6,789.30.

[61] The total compensation granted under this head is, by my calculation, $12,302.04. This does not accord with the submissions of plaintiff’s counsel. If I have erred in arriving at these figures, counsel should advise me and it can be addressed.

Loss of Capacity

[62] The plaintiff advances a claim for loss of capacity, relying on the test set out by the BCCA in Pallos v. Insurance Co, of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.). That entails four criteria being satisfied:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and

4. The plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market.

[63] In the submission of the plaintiff, this test, coupled with the words of Southin J.A. in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) where she stated that “even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.” should entitle Ms. Orrell to an award of damages under this head. It is argued that her ongoing symptoms, reduced physical lifestyle and uncertain prognosis for recovery meet the criteria. It is also contended that the evidence that Ms. Orrell at one point left her employer to work for a large national accounting firm, but found the conditions too demanding and so returned to her former post (at a salary in excess of the large firm) supports a right to compensation for lost capacity.

[64] In my view, this is not a claim that can succeed. The issue of a claim for loss of capacity and the particular passage of Southin J.A. mentioned above has been the subject of further, subsequent and, I would say clarifying, commentary by the Court of Appeal in Steward v. Berezan, 2007 BCCA 150. There, speaking for the court, Donald J.A. said this about the words relied on by the plaintiff:

[17] But the language in question there was used in the context of appellate review and, with respect, it cannot be transposed to an original analysis at the trial level. The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur...

[65] With the benefit of that elucidation, I find that the evidence that is before this court does not establish a basis for an award under this head, and that claim is dismissed.

Future Care

[66] The plaintiff’s claim under this head is hampered by a substantial uncertainty in the evidence. While I have accepted that she still has some symptoms, there is no basis to make any reliable conclusion as to prognosis. Her symptoms appear to be significantly resolved. Both of the doctors who have testified say that the most logical course of treatment is exercise. The plaintiff says that she continues to attend massage treatments, “with the knowledge of Dr. Miki.” There is no evidence that she is continuing with this treatment at his direction. This is not a situation where there is a clear and certain path of treatment to be taken.

[67] In my view, accepting that she will take further treatment of this type, of her own volition, and recognizing that she derives a therapeutic benefit from it and that there is some cost incurred over and above her medical coverage, there will be an award of $750.00 for future care.

Special Damages

[68] The plaintiff has advanced a claim for special damages. These are comprised of her out of pocket and un-reimbursed expenses for chiropractic care, physiotherapy and massage therapy. Most of the visits were in 2003, following the accident. There are two visits to the physiotherapist in 2005. As well, there are seven massage therapy sessions in 2005, nine in 2006 and four in 2007. She seeks as well to be compensated for the mileage costs of attending these sessions and for attendances on Dr. Miki in conjunction with the injuries she alleges.

[69] The position of the defendant is that expenses incurred after January 2005 should not be awarded because she has not proven that they were related to injuries incurred in the accident.

[70] Given my findings that the symptoms that are associated to injuries from the accident have been shown to have persisted up to the date of trial, I conclude that these expenses are reasonable and sufficiently related to the accident. She is thus entitled to be compensated. There is a practical difficulty in that the materials in evidence do not, as far as I can discern, clearly show what recovery the plaintiff has made from her medical coverage and thus what her actual out-of-pocket expenses are. In the circumstances, I propose to leave to counsel the task of determining the actual figure that properly compensates that loss. If there are difficulties in doing that, I will hear submissions, although it would be surprising if that was necessary.

Summary and conclusion

[71] The accident of March 10, 2003, which was caused by the negligence of the defendant, caused injuries to the plaintiff which entitle her to recover damages as follows:

1.	Non-pecuniary damages	$30,000.00
2.	Lost wages	$12,302.04
3.	Special damages	To be calculated
4.	Cost of future care	$750.00

Other matters

[72] The plaintiff is entitled to receive pre-judgment interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, in respect of the wage loss and the special damages.

[73] In the absence of there being considerations of which I am unaware, the plaintiff shall recover her costs of this action at Scale B.

“The Honourable Mr. Justice Williams”

Citation:	*Orrell v. Lynch,*
	2008 BCSC 1696