|Grier v. Saadzoi Ami Grier Plaintiff And Mohammad Saadzoi The principal question is whether the plaintiff has lost any future earning capacity as a result of the injuries she sustained in the accident.|
IN THE SUPREME COURT OF BRITISH COLUMBIA
Before: The Honourable Mr. Justice Brooke
Reasons for Judgment
 The plaintiff was injured in a motor vehicle accident on December 7, 2004. Liability is admitted and the issue before the court is the assessment of damages. The principal question is whether the plaintiff has lost any future earning capacity as a result of the injuries she sustained in the accident.
 At the time of the accident, the plaintiff was 20 years old and living in Surrey. The accident occurred when the defendant drove out of a strip mall into the course of the plaintiff, and the collision occurred without the plaintiff having any opportunity to avoid it. Her car was so badly damaged that it was written off.
 As a result of her injuries, the plaintiff, who was then working at a gardening store, was off work the rest of the week in which the accident occurred, as well as the following week. The injuries sustained were essentially soft tissue injuries to the neck and the right shoulder, as a result of which the plaintiff had some pain in the neck, shoulder and back with a restricted range of motion and pain in her right groin. The plaintiff also says that she suffered an injury to the lower rib on her left side and that she continues to suffer pain and discomfort as a result, despite having made a good recovery from the soft tissue injuries. The defendant says that the plaintiff made no complaint of any rib pain until some months after the accident and that she has failed to mitigate this aspect of her damages by accepting the surgical procedure to remove the tip of the rib as recommended by Dr. Luoma, a thoracic surgeon who saw the plaintiff on referral from her family doctor on June 15, 2006.
 Dr. Luoma also recommended that the plaintiff see a pain management specialist, and she saw Dr. Stephen Jefferys on December 23, 2006, and January 30 and February 22, 2007, when she was injected with intercostal nerve block medication.
 The plaintiff has also seen a physical medicine specialist, Dr. Stephen Vallentyne, who saw her on July 9, 2008, and whose medical-legal report was received in evidence. Dr. Vallentyne was made available for cross-examination. On physical examination, he noted tenderness of the left 10th and 11th ribs, as well as a painful limitation of both right and left torso rotation. In his diagnosis and prognosis, Dr. Vallentyne said that the plaintiff sustained soft injuries of the neck and upper back consistent with musculo ligamentous sprain/strain injuries without any neurological or orthopedic complications. The neck and upper back pain have fully resolved. He also said that the plaintiff sustained a soft tissue injury of the mid and low back consistent with musculo ligamentous sprain/strain injuries without any neurological or orthopedic complications. He then went on to say this at p. 4 of his report:
In my opinion, it is unlikely that she sustained a rib fracture given that she did not have immediate chest wall pain and that chest and rib x-rays have been negative. In my opinion, it is unlikely that she has instability of her rib cage in the absence of a fracture. From my standpoint, her injuries included a left lower thoracic costovertebral joint sprain as well as myofascial pain of the left-sided lumbar and left abdominal muscles. Both the quadratus lumborum and abdominal oblique muscles attached (sic) to the lower ribs. It is noteworthy that neither coughing and deep inspiration trigger pain; these maneuvers would tend to stress the ribs and costochondral junctions. It is interesting, however, that sit-ups trigger the left-sided rib pain; sit-ups require contraction of the abdominal muscles. It is also interesting to note that torso rotation and lateral bending also triggered the left-sided rib pain; although these manoeuvres do stress the rib cage, they also cause stretching of the abdominal and paralumbar muscles. Finally, the presence of significant tenderness of the abdominal oblique and quadratus lumbar muscles below the rib case suggested that these muscles, as opposed to the ribs, are the source of the pain. The rib and torso pain have not settled down completely after three years. Given that duration of symptoms, it is likely that the rib and torso pain will be long-standing and probably permanent.
It was Dr. Vallentyne’s opinion that a further chest CT scan should be performed “[t]o more definitively rule out rib cage instability”.
 With regard to treatment, Dr. Vallentyne recommended treatment under the headings: (a) Medical & Surgical, (b) Physical Therapy, (c) Counselling, (d) Equipment & Adaptive Aids, and (e) Assistive Services. In regard to medical and surgical treatment, he agrees with Dr. Appleby, the family doctor; Dr. Luoma, the thoracic surgeon; and Dr. Coghlan, a physical medicine specialist, who saw the plaintiff on independent medical examination, that the plaintiff should continue to use anti-inflammatory medication as required. He also agrees with Dr. Jefferys, the pain specialist, that there is little value in repeating intercostal nerve blocks. He notes that while Dr. Luoma and Dr. Coghlan refer to the surgical removal of part of the rib as a final line of treatment, he is not convinced that this would relieve the pain, having regard to the subcostal muscular involvement. Dr. Vallentyne considered that neuromodulator medication at bedtime may partially relieve the chronic soft tissue pain that the plaintiff suffers.
 Dr. Vallentyne doubted that further physiotherapy would have any curative value but that a course of release techniques targeting the abdominal oblique and quadratus lumborum muscles could be tried combined with regular stretching.
 Dr. Vallentyne suggested pain management counselling because of the plaintiff’s apparent degree of symptom preoccupation, but he did not consider that she required vocational counselling.
 With regard to equipment and adaptive aids, Dr. Vallentyne considered a lumbar hot pack as well as a gardening stool could be provided to alleviate rib pain.
 Finally, with regard to assistive services, Dr. Vallentyne considered that the plaintiff does not require such service on a regular basis so long as her husband can continue to perform heavier home and yard maintenance activities.
 With regard to impairment and disability, Dr. Vallentyne considered that at the time of his examination, the plaintiff merited a 5 percent whole person impairment rating for a category II lumbar spine disorder, which he anticipated would be permanent. He considered that Ms. Grier was medically fit to execute any and all personal care activities, as well as to perform housekeeping duties, although he cautioned that she should limit heavier lifting and carrying associated with vacuuming and laundry. Dr. Vallentyne considered the plaintiff to be fit to continue in her employment as a daycare worker, but he considered that her competitive employability was lessened as a result of the accident and the restricted job options available to her in the presence of chronic rib pain.
 Dr. Coghlan had seen the plaintiff on independent medical examination some eight months before Dr. Vallentyne, and Dr. Coghlan’s report was filed and he was available for cross-examination. Dr. Coghlan refers to the plaintiff’s initial complaints of pain in her neck and mid-back, as well as significant headaches; all of which settled down over time. He describes her most persistent and ongoing problem as pain in the lower rib margin on the left side, which is variable from day to day and significantly increased with physical activity. The plaintiff reported to him that she could not lie on her stomach because it bothered her ribs, nor could she sleep on her left side as that too bothered her with the result that she often had difficulty sleeping through the night, though she was taking medication which helped her to sleep. Dr. Coghlan noted that despite numerous physiotherapy treatments, these do not seem to have been helpful. He also referred to Dr. Jefferys’ attempt at a local block, which did not help and, in fact, was complicated by the development of pain in the plaintiff’s left flank.
 Dr. Coghlan describes the plaintiff as frustrated by her diminished activity level; that she had not been able to return to her previous level of activity in sports; that she was unable to play soccer; and that snowboarding was now limited by pain as was dirt biking.
 The plaintiff had completed a degree in Early Childhood Education and was working at a daycare at the time of her assessment by Dr. Coghlan. She was also working as a clerk/receptionist for her physiotherapists, which she did in order to defray the cost for physiotherapy. The plaintiff told Dr. Coghlan that her daycare work is more difficult and demanding because of the lifting and straining involved. Dr. Coghlan concludes that the plaintiff presents with persistent left lower chest wall pain that is aggravated with physical activity, and he found that she does have focal tenderness over the lowest rib that is attached to the costochondral cartilage and the first floating rib. He suggested that the plaintiff do a lot of rotary stretching and use a tensor bandage for six weeks to stabilize the area. In terms of treatment options, Dr. Coghlan said that one could consider the possibility of surgical excision of the floating rib but opined that there is no guarantee that this is going to be effective. Dr. Coghlan concluded that from a vocational perspective he did not feel that the injury would be significantly restrictive in the long term.
 The plaintiff was qualified in early childhood education and worked at a daycare centre in Kelowna. Her employer, Ms. Lanzinger, said that the daycare was divided into two basic groups, one composed of children from 3 to 5 years of age and the other of infants and toddlers. She described the work with infants and toddlers as requiring more bending and lifting than with the care of the children in the older group. Ms. Lanzinger noted that the plaintiff worked with the 3- to 5-year-old group. She said that her duties included floor mopping and bathroom cleaning on a regular basis.
 Heather Southam, another daycare worker familiar with the plaintiff’s work, described her reluctance to mop floors because of pain, and she also noted that working with infants and toddlers was more physical than working with 3- to 5-year-olds.
 Finally, Ms. Stephanie LePoint gave evidence that she had worked with the plaintiff since 2005 and it was her belief that a daycare worker with infants and toddlers can earn 50 cents or a dollar more per hour than one working with the 3- to 5-year-old group. She described the plaintiff as doing stretches during the day while at work, as well laying on the floor and stretching her back to relieve pain and discomfort.
 The plaintiff’s husband also gave evidence of the active, physical life that he and the plaintiff enjoyed prior to the accident and the limitations in physical activity on the part of the plaintiff that followed the accident.
 As part of the case for the defendant, a series of videos was put in evidence showing the plaintiff riding a motorbike off road and shopping and going about her normal household activities. Clearly, the videotape was made surreptitiously and without the plaintiff’s awareness. While the tape does not display any particular discomfort evinced by the plaintiff, her activity is restrained when compared to the activity of her husband who was with her. She says that before the accident, they operated their motorbikes off road and on rugged and uneven terrain. What was depicted in the video was the operation of the motorbikes on a relatively level gravel road. It was noted that the plaintiff’s husband took the motorbikes out of the truck and that the plaintiff played no role in that. Nevertheless, the videotapes do demonstrate that the plaintiff is able to continue at least some of her former activities, although perhaps not with the same intensity nor without pain.
 Counsel for the plaintiff submits that the injury to the left lower rib or rib area is permanent and that the plaintiff will be limited in her vocational and recreational activities by pain. Moreover, he says that she has diminished capacity to pursue all kinds of employment that would otherwise have been available to her as a result of this injury. He submits that the plaintiff was in very good health before this accident and enjoyed an active and vigorous lifestyle and that the quality of her life has been significantly diminished. It is submitted that the admitted negligence of the defendant was the cause of the accident which, in turn, caused the soft tissue injuries from which the plaintiff has made a good recovery within the normal period, as well as the injury to the rib which causes pain and discomfort in addition to the limitations to which I have previously referred. Counsel for the plaintiff submits that the plaintiff has taken all reasonable steps to mitigate the injury and its consequences and that it is reasonable for her to decline the surgery recommended as a last resort by Dr. Luoma in the face of Dr. Vallentyne’s opinion to the contrary and even Dr. Coghlan’s opinion that there is no guarantee that surgical excision would be effective.
 In the result, counsel for the plaintiff submits that damages should be assessed as follows: General Damages - $50,000; Loss of Housekeeping Ability - $10,000; Damages for Diminished Capacity - $35,000; and Future Care (including physiotherapy, medication, hot and cold packs, and tensor bandages) - $1,500 to $3,000. The parties have agreed on past special damages and wage loss.
 The defendant, on the other hand, submits that Dr. Vallentyne’s assessment that the plaintiff warrants a finding of 5 percent disability is a “guesstimate” as he acknowledged in cross-examination and that, in any event, a 5 percent rating is at the low end or mild side of impairment as Dr. Vallentyne agreed. Counsel for the defendant stressed that the plaintiff has not missed work and that she is able to carry on her work as a childcare worker, which is a very physical vocation. He emphasizes the plaintiff’s obvious facility in operating an off road motorcycle and, after doing that, she was able to go shopping and to carry a bag or bags of groceries. With regard to the claim for damages for diminished capacity, counsel for the defendant says that Dr. Vallentyne was the only expert who considered there was any impairment and that he conceded that that was modest. Counsel for the defendant also submits that the plaintiff has a duty to mitigate and that the recommendations of Dr. Luoma included the recommendation that she consider the surgical removal of part of the vexatious rib. The CT scan that had been taken did not show the rib in issue, and the plaintiff has not obtained a further CT scan despite Dr. Vallentyne’s recommendation. In the result, counsel for the defendant says that the plaintiff has failed to mitigate her losses.
 While conceding that every case is different, counsel for the defendant submitted that the level of function of the plaintiff is such that, on the authorities, her general damages are in the range of $15,000 to $25,000, less a percentage discount for her failure to mitigate. The defendant submits that no case has been made out for loss of housekeeping ability or for diminished capacity, and he says that no claim has been made out for the cost of future care. Counsel for the defendant confirms that counsel have agreed to past wage loss and special damages in the aggregate of $1,158.
 I find that the plaintiff was a credible witness, who neither exaggerated nor diminished the injuries that she sustained or the continuing pain and discomfort she has. She was a reliable historian. She struck me as a person who is getting on with her life, despite having to put up with some pain and discomfort. I am also satisfied that she has followed the advice that she has been given in terms of stretching and exercise and that she avoids, where she can, physical activity which will trigger any discomfort in the area of her rib.
 The plaintiff has made a good recovery from the soft tissue injuries that she sustained in a forceful motor vehicle collision. I find that the pain associated with the lower left rib was caused by the collision and that whether Dr. Vallentyne is correct, that the pain is a result of subcostal muscular involvement or Drs. Luoma and Coghlan are correct, that the pain is associated with the first floating rib, that the injury and its consequence is likely permanent. Fortunately, however, the result is a modest impairment of her overall capacity and it can be controlled, to some extent, by avoiding certain physical activity, as well as involving herself in an exercise and stretching program and taking medication to assist her in sleeping and to moderate the pain.
 Non-pecuniary damages are a “once and for all” award to compensate a plaintiff for pain, suffering and loss of enjoyment of life caused by the injury to the date of assessment and for the future. In assessing damages, the ranges of damages awarded in comparable cases can be a useful guide, but in each case, the court must fashion an award that provides compensation to the plaintiff. This is not a case like Price v. Kostryba,  70 B.C.L.R. 397 (S.C.), or Butler v. Blaylock Estate,  B.C.J. No. 31 (S.C.), where complaints of injury continue long after the normal period for recovery, but rather one where the injury is real and continues to cause pain and discomfort and will likely do so for the foreseeable future. I assess non-pecuniary damages at $36,000.
 The plaintiff seeks compensation for diminished capacity or a lost ability to earn income. In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), Mr. Justice Finch (as he then was) says at para. 8 the following:
The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:
1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
2. [T]he plaintiff is less marketable or attractive as an employee to potential employers;
3. [T]he plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
 I find that each of the four criteria have been met, and the plaintiff has a moderate impairment in her ability to earn income making use of her particular strengths which, prior to the accident, included a high level of physical activity. I find also that the plaintiff’s ability to pursue her career as an early childhood development person has been impaired insofar as her ability to care for infants and toddlers is concerned. I do not accept that this is a loss capable of being quantified in an arithmetic way, but I treat this impairment as one where compensation must be assessed. I award the plaintiff $10,000 under this head of damages.
 I am not satisfied that the evidence supports an award for diminished housekeeping capacity, and therefore that aspect of the plaintiff’s claim is dismissed.
 I am also not satisfied that the plaintiff has made out her claim for the cost of such things as physiotherapy, prescriptions, hot and cold packs, and tensor bandages in the absence of both an opinion that such modalities would be reasonable in the treatment of the plaintiff’s injuries and in what they would cost.
 Unless there are matters that need to be brought to my attention, the plaintiff is entitled to her costs at Scale B.
“T.R. Brooke, J.”