Executive Summary: Key Legal and Evidentiary Issues

• Liability was admitted; the central disputes concerned the extent, duration, and causation of the plaintiff's injuries beyond the first one to two years post-accident.
• Chronic pain, including right-sided radiculopathy traced to an L5-S1 intervertebral disc injury, was found to have persisted from the accident to the date of trial.
• Pre-existing conditions — including prior episodes of depression and obesity-related back complaints — were assessed under both the "thin skull" and "crumbling skull" doctrines, with the court ultimately finding a thin skull situation.
• Admissibility of hearsay statements from counselling and clinical records was contested, with the court applying Egan v. Andrychuk, 2022 BCCA 110 and s. 14 of the Evidence Act to limit their use.
• Workplace bullying and harassment beginning in 2023 was raised as a potential novus actus interveniens breaking the chain of causation, but the court rejected this argument.
• Plaintiff's functional capacity as an airport screening officer was found to be permanently impaired, supporting awards for past income loss, future loss of earning capacity, and cost of future care.

Facts of the case

On September 5, 2018, Joanna Veloso was rear-ended by a vehicle owned and operated by Mohamed Ibrahim Elshazly at the intersection of South West Marine Drive and Ontario Street in Vancouver, British Columbia. Ms. Veloso was stationary at a red light when Mr. Elshazly — driving eastbound and having failed to slow for the light — braked for one to two seconds before impact. The court found the collision to be a forceful one that damaged both vehicles. Ms. Veloso, then 33 years old, worked full-time as an airport screening officer at Vancouver International Airport and was a member of the International Association of Machinists and Aerospace Workers. Liability was not in dispute.

Prior to the accident, Ms. Veloso had undergone bariatric surgery in 2015 to address morbid obesity, which had previously caused low back pain, migraines, and plantar fasciitis. She lost approximately 100 pounds by mid-2016 and had returned to an active lifestyle that included playing soccer, hiking, and dancing. She also experienced two miscarriages — one in late 2017 and one in January 2018 — which led to a situational episode of depression for which she was prescribed four weeks of anti-anxiety medication. The court found she had fully recovered from this depression before the accident.

Policy terms or contractual clauses at issue

No insurance policy terms or specific contractual clauses were directly at issue. The parties entered into a document agreement governing the admissibility of clinical and business records, which included a proviso that statements within those records not from the direct observation of the record maker were admissible only for the purpose that the statement was made and recorded — a term that shaped the court's treatment of hearsay in the counselling and physiotherapy records.

Court's reasoning and analysis

Ms. Veloso experienced immediate pain, stiffness, and tingling following the accident, with her right side more severely affected. She was off work for approximately five weeks, then gradually returned on modified duties and reduced hours, eventually receiving medically supported accommodations that permitted her to work four eight-hour shifts per week with mandatory rotation breaks every 30 minutes. Despite sustained therapeutic efforts over several years, her pain did not resolve.

The court accepted the opinion of physiatrist Dr. Shergill — preferred over that of family doctor Dr. Cheung where the two differed — that Ms. Veloso suffered right S1 radiculopathy resulting from an L5-S1 intervertebral disc injury, in addition to cervical, thoracic, and lumbar sprain/strain injuries, and central sensitization. Dr. Shergill traced the radicular symptoms to several weeks after the accident, supported by positive straight leg raise and slump tests recorded in physiotherapy notes from October 2018. An MRI dated December 17, 2024 confirmed a disc protrusion at L5-S1 contacting the traversing right S1 nerve root.

On the psychiatric evidence, both Dr. Lu (plaintiff's expert) and Dr. Okorie (defendant's expert) agreed that Ms. Veloso's major depressive disorder was not caused by the accident. However, her generalized anxiety disorder — whether framed under Dr. Lu's diagnosis of Somatic Symptom Disorder or Dr. Okorie's diagnosis of GAD — was found to be driven by her chronic pain and caused by the accident. The court applied the thin skull rule, finding that although Ms. Veloso may have been vulnerable to an anxiety disorder, the defendant was required to take her as found.

The defendant argued that Ms. Veloso had fully recovered by mid-2020, that a pre-accident disc protrusion identified in a 2013 scan was the cause of her current condition, and that workplace bullying and harassment from 2023 onward constituted a novus actus interveniens. The court rejected all three arguments. No expert endorsed the 2013 disc theory. On the intervening event argument, the court found that even absent the workplace bullying, Ms. Veloso would still have required medical leave due to a flare-up of her right-sided radicular pain in 2024. The court also found, applying Egan v. Andrychuk, that counselling records not put to Ms. Veloso in cross-examination could not be used for the truth of their contents to undermine her reliability.

Functional capacity evaluator Ms. Waithman opined that Ms. Veloso did not meet the physical demands of an airport screening officer on a durable basis — she was limited to standing for approximately 30 minutes at a time and could only occasionally lift up to 10 pounds — and that she would always require accommodations. Vocational rehabilitation expert Ms. Sharma concluded that Ms. Veloso was no longer competitively employable in an unrestricted screening officer capacity and that her viable options in social services work would likely be confined to part-time, accommodated, lower-wage roles.

In 2022, Ms. Veloso returned to full-time work following her divorce due to financial necessity, but her income losses decreased to near nil only temporarily. After ceasing physiotherapy in mid-2023, her right-sided radicular pain worsened. By early 2024, the pain became disabling, preventing her from standing for more than one hour at a time. Her physician recommended a six-month medical leave beginning April 2024. On returning to work in October 2024, she worked only one short shift per week. Ms. Veloso enrolled in full-time studies at Langara College in September 2024 toward a social services diploma as a reasonable step to mitigate her losses, which the court accepted. At trial, she was working three to four six-hour shifts per week as a screening officer, with accommodations.

Ruling and overall outcome

The plaintiff, Joanna Veloso, was successful. Justice Marzari awarded her a total of $879,458 in damages, comprising: $175,000 for non-pecuniary damages; $90,000 for past loss of income and earning capacity; $450,000 for future loss of earning capacity; $150,000 for cost of future care; and $14,458 in agreed special damages. Ms. Veloso was also found presumptively entitled to her costs at the ordinary scale and to court-ordered interest, with the parties given 30 days to request a further appearance on costs if needed.