IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100218

Docket:
M073374

Registry: Vancouver

Between:

Kristine Sylte

Plaintiff

And

Daniel Olivera Rodriguez and
Hernandez Figueroa

Defendants

Before: The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
The plaintiff Kristine Sylte sues for damages which
she suffered as a result of a motor vehicle accident.  The defendants have
admitted that their negligence was the sole cause of the accident.

[2]            
On September 15, 2005 Ms. Sylte was driving her
small pickup truck on Prairie Avenue, Port Coquitlam, British Columbia.  She
entered the intersection of Prairie and Coast Meridian Road, in which the car
driven by the defendant Daniel Rodriguez was attempting to make a left hand
turn.  Mr. Rodriquez failed to yield the right of way and his vehicle collided
with Ms. Sylte’s truck, which suffered only minor damage in the collision. 
Mr. Rodriquez left the scene of the accident without stopping but Ms. Sylte was
able to pursue him in her truck.  She followed him to a nearby community centre
and made a mental note of his license number.  She then returned to the scene
of the accident and called the RCMP from a nearby gas station.  The police
attended the scene and located and detained Mr. Rodriguez.

[3]            
Ms. Sylte was on her way to work at Royal
Columbian Hospital when the accident occurred.  Ms. Sylte was and is employed
as a nurse’s aide at the hospital.  She carried on to work but experienced a
general sensation of pain, burning in her right arm, and general weakness.  The
head nurse on her ward sent her to the emergency department and Dr. Wong, one
of the emergency room doctors, examined her and told to go home.

[4]            
Ms. Sylte first saw her family doctor, Dr. Shu,
on September 20, 2005.  At that time she was being treated with Tylenol 3 and
anti-inflammatory medications as prescribed by Dr. Wong.

[5]            
Ms. Sylte again saw Dr. Shu on September 28,
2005.  She reported that her neck and shoulder pain had improved greatly. 
However, Ms. Sylte’s lower back pain persisted.  At that time she was taking
200 mgs. of ibuprofen three times a day and Tylenol 3 for pain as needed.  By
mid to late October 2005 it seems that Ms. Sylte’s neck and shoulder pain had
largely disappeared but she continued to suffer from low back pain.

[6]            
In the course of the next year, Ms. Sylte saw
Dr. Shu about 16 times.  In February 2006 Ms. Sylte began to experience
depressive symptoms.  Dr. Shu prescribed 150 mgs. of Wellbutrin twice a day for
these depressive symptoms.  He did not, however, refer her for psychiatric
counselling.

[7]            
On June 14, 2007, almost two years after the
accident, Ms. Sylte continued to experience occasional back pain radiating down
her leg and buttocks.  This pain was aggravated by physical activity.  Dr. Shu prescribed
Flexeril 10 milligrams once a day and Tylenol 3 every four hours for pain.

Medical
Evidence

[8]            
Dr. Shu prepared his first medical/legal report in
this case on October 2, 2007.  As of that date he had not seen Ms. Sylte since
June 14, 2007.  In that report Dr. Shu commented that there was no evidence of
any serious injury demonstrated by x-ray or CT scan.  His diagnosis was that
Ms. Sylte had suffered a soft-tissue injury to her lower back and that in time
with “proper exercise and a good frame of mind it should resolve completely
with no permanent disability.”

[9]            
On October 18, 2007, Ms. Sylte again saw Dr. Shu
and complained about continuing back pain in her left sacroiliac area.  Because
Ms. Sylte’s back pain continued to trouble her, Dr. Shu ordered an x-ray.  The
x-ray did not disclose any abnormal finding.  Dr. Shu referred Ms. Sylte to Dr.
Trevor Stone, who first saw her on December 20, 2007.

[10]        
Dr. Stone arranged for Ms. Sylte to receive a
cortical steroid injection in her left sacroiliac region on April 25, 2008. 
This resulted in some mild relief but no significant improvement in her
symptoms.  Dr. Stone’s opinion was that Ms. Sylte was not a candidate for
surgical intervention.  He diagnosed mechanical low back pain.

[11]        
It appears that Ms. Sylte was making slow improvement
up to June 26, 2008, when she was involved in another motor vehicle accident. 
In Dr. Shu’s opinion, the second accident aggravated her existing back pain and
caused some neck pain.

[12]        
Ms. Sylte continues to suffer from left side
back pain around her sacroiliac joint area.  In Dr. Shu’s opinion this pain is
caused by the initial car accident of September 15, 2005, but is definitely aggravated
by the second accident.  Dr. Shu does not expect a complete recovery as
the pain has been on-going since 2005.  He thinks that Ms. Sylte will
experience on-going back pain for the foreseeable future.

[13]        
I also heard evidence and was provided with
medical reports from Dr. Stone and Dr. Duncan McPherson.  I do not think it is
necessary to refer to their evidence in any detail.  In this case, the
consensus of medical opinion is that Ms. Sylte is suffering from low back pain
in the left sacroiliac area.  The doctors also all agree that there is no
objective evidence of underlying injury causing this pain.  They are all of the
view that as the pain has persisted since June 2005 it will in all likelihood
continue to persist for the foreseeable future.

[14]        
Dr. McPherson’s initial opinion was that there
was no objective evidence of disability.  However in cross examination at trial
he did agree that he thought Ms. Sylte still had back pain as of the date
of his examination in 2006.  I did not take him to be disagreeing with Dr. Shu’s
opinion that Ms. Sylte will probably continue to suffer from ongoing back pain
for the foreseeable future.  However, I do not think that Dr. Shu considered
that Ms. Sylte suffers from any significant disability as a result of her injuries.

[15]        
The conclusion I have reached is that any
restriction on Ms. Sylte’s activities is caused by pain rather than physical
limitation.  The pain is however very real to Ms Sylte and the functional
effect of that pain is that Ms. Sylte no longer feels able to do all the things
she did before the accident.

[16]        
Based on the evidence before me I conclude that
Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle
accident which continues to cause her chronic pain in her lower back area.  I
also conclude that she developed depressive symptoms which she would not have
developed had the accident not occurred.

Damages

[17]        
Counsel for the parties are agreed that in
assessing damages in this case I should treat Ms. Sylte’s injuries from both
motor vehicle accidents as causing one indivisible injury.  I understand from
Mr. Taylor that Ms. Sylte has settled her claim for damages for the second
accident.  Counsel are agreed and I conclude that in these circumstances the
appropriate course of action is for me to assess damages on an indivisible basis
and for the global amount of the settlement of the other action to be deducted
from the amount payable pursuant to any award I make.  See Ashcroft v.
Dhaliwal, 2008 BCCA 352.

Non-Pecuniary
Damages

[18]        
Ms. Sylte is 51 years old.  She testified that prior
to the first motor vehicle accident she was an active, energetic individual. 
She enjoyed playing mixed softball, golf and skiing.  She was employed as a
nurse’s aide at the Royal Columbian Hospital in New Westminster.  She was a
single mother whose adult son, Josh, lived with her.

[19]        
Ms. Sylte said that as a result of the pain
which she is now experiencing she is no longer able to play softball and can
golf only very occasionally.  She simply finds these activities too painful to
pursue.  In addition she no longer skis.  She indicated that Josh is now required
to do many of the more physically demanding tasks around the house.  She also
indicated that she finds it difficult to drive long distances and that her
general quality of life has deteriorated significantly as a result of her pain. 
She indicated that this pain is about 4 out of 10, with 10 being the worst pain
imaginable.

[20]        
Josh gave evidence at the trial.  He generally
corroborated the drop in Ms. Sylte’s activity level since the motor
vehicle accident.  He also indicated that his mother had become much less
social after the accident.  Josh, who is now 31, does much of the heavy work
around the house.

[21]        
Ms. Sylte has suffered a significant impact on
her social and recreational life as a result of the injuries she suffered in
the accident.  The evidence before me is that these symptoms will be
permanent.  I note that Ms. Sylte is no longer able to play softball,
participate in golf in any meaningful way or pursue skiing.  She is in more or
less constant discomfort from the injuries she has suffered.  As I have found,
she is genuinely experiencing the pain which, I have no doubt, has some
psychological component.

[22]        
I have concluded that there should be a
substantial award for non-pecuniary damages in this case.  I was referred to in
a number of cases which seem to establish a range of approximately $35,000 to
$125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain
symptoms without significant physical disability.  In my view, an appropriate
amount for non-pecuniary damages in this case is $45,000.

Past Income
Loss

[23]        
The major dispute between the parties is over
the effect that Ms. Sylte’s injuries have had on her capacity to work both up
to the time of trial and in the future.

[24]        
Ms. Sylte was off work from September 19, 2005
to December 31, 2006.  On January 2, 2007 she returned to work under a
graduated return-to-work program mandated by her employer.  Ms. Sylte’s
evidence, which I accept, was that because of the responsibilities of her
duties as a nurse’s aide in the surgical department at Royal Columbian
Hospital, she is subject to her employer’s policy of not allowing employees to
return to work until the employer is satisfied that they are medically capable
of performing their work.  Employees who have been off work for a long period
of time are required to undergo a gradual return-to-work program, initially
under supervision of another employee.

[25]        
For the defendants, Mr. Kent-Snowsell submitted
that Ms. Sylte had not taken all reasonable steps to minimize her past income
loss.  In my view, there is no merit in that submission.  Ms. Sylte testified
that her ability to return to work was dependant on, not only her own wishes,
but also on her employer being satisfied that she was able to discharge her
duties.

[26]        
As part of her union’s collective agreement with
the Fraser Health Authority, Ms. Sylte was enrolled in a long-term disability
plan with Great West Life.  Great West Life continued to make long-term
disability payments to Ms. Sylte until she returned to work.  These payments
are of course not to be taken into account in determining Ms. Sylte’s loss of
past earnings, but the fact that Great West Life continued the payments supports
my conclusion that there is no basis for any finding that Ms. Sylte has failed
to mitigate her loss.

[27]        
After the conclusion of this trial, counsel for
Ms. Sylte applied to reopen her case and to submit reports from an occupational
therapist and doctor who advised Great West Life to rebut any adverse inference
arising from her failure to lead evidence to support her explanation for the
long period she had not worked.  I granted the application because those
reports had been in the possession of the defendants’ counsel, but had not been
disclosed.  In my view the contents of those reports support Ms. Sylte’s
explanation for not returning to work sooner.

[28]        
I do not think that Ms. Sylte acted unreasonably
in participating in her employer’s long term disability program and in not
seeking other employment while she was unable to work at Royal Columbian.  Ms.
Sylte enjoyed considerable seniority with that employer and had the benefit of
favourable fringe benefits that it is unlikely she would have able to duplicate
elsewhere.

[29]        
The onus of proving failure to mitigate is on
the defendants.  In my view, the defendants have presented nothing more than
unsubstantiated conjecture in support of this submission.

[30]        
Ms. Sylte’s counsel submits that the regular
wages lost by Ms. Sylte during the period of her total disability were $40,658. 
In addition, Ms. Sylte has suffered damages in the form of loss of pension
entitlement, vacation pay and sick leave credits.  Ms. Carol Doutaz, the
payroll supervisor for the Royal Columbian Hospital, gave evidence that, based
on the terms of the collective agreement between Ms. Style’s union and the
Fraser Health Authority, Ms. Sylte lost employer’s contributions of 7.99% of
her base salary, 78.85 hours of vacation time and 34.95 hours of sick time.  The
total value of these losses, based on an average base pay of $20.14 was
approximately $5,000.

[31]        
I accept Mr. Taylor’s submissions that these
amounts are properly recoverable in this action as being attributable to the
fault of the defendants and accordingly have concluded that Ms. Sylte has
suffered a past loss of income in respect of the period in which she was unable
to work as follows:

Loss of Past and Future Earning
Capacity

[32]        
Ms. Sylte also makes a claim for loss of earning
capacity between the date of the accident and the date of trial, and in the
future.  As Ms. Sylte was working the same regular hours after February 1,
2007 as she was before the accident, this claim must be based on Ms. Sylte
establishing a substantial possibility that as a result of the injuries she
suffered in the accident her capacity to earn income has been impaired.  Ms.
Sylte’s evidence is that she would have liked to work more shifts and take on
over-time once she returned to work, but as a result of the pain and discomfort
which she is experiencing she is unable to do so.  The evidence supports the
conclusion that more hours were available to her had she been able to work
them.

[33]        
In support of this claim Mr. Taylor has compared
partial payroll records for the years 2003, 2004 and 2005 and the period in
2007 to 2009 after Ms. Sylte returned to work.  These appear to show that Ms.
Sylte has worked fewer hours per pay period since she returned to work.  However,
Ms. Sylte produced records for only 14 payroll periods prior to the date of the
accident.  This has significantly handicapped me in addressing this issue.  On
the other hand, I found Ms. Sylte to be a credible witness.  I also think there
is sufficient evidence of depressive symptoms caused by the accident which
could reasonably be expected to affect her capacity to work.  I have come to
the conclusion that Ms. Sylte has established a substantial possibility that,
as a result of her injuries, she suffered a loss of earning capacity before and
after the date of trial.

[34]        
On behalf of Ms. Sylte, Mr. Taylor submitted
that the evidence supports a finding that Ms. Sylte has been unable to work on
average one shift per pay period less since the date of the accident than before
and that that situation will continue until her retirement at age 65.

[35]        
However, given the paucity of evidence with
respect to Ms. Sylte’s pre-accident employment, the fact that Ms. Sylte is
approaching an age at which she could reasonably be expected to work less
overtime than she did formerly and the general uncertainty surrounding this
issue, I conclude that it would be inappropriate to take an arithmetical
approach in assessing damages for loss of income earning capacity.  Instead, I
have taken into account Ms. Sylte’s base salary and her evidence with respect
to the overall effect that her injuries have had on her.  I have also
considered the lack of clinical findings suggesting any significant impairment
in her overall physical capacity.  Taking these factors into account, I assess
damages for loss of past income earning capacity at $5,000, and damages for
loss of future income earning capacity at $15,000.

Special
Damages

[36]        
Special damages are claimed by Ms. Sylte in the
amount of $3,612.70.  These are made up as follows:

[37]        
I am satisfied that the amounts claimed for
special damages are reasonable and appropriate in the circumstances of this
case and are caused by the injuries suffered by Ms. Sylte in the accident.  I
award special damages in the amount of $3,612.70.

[38]        
Ms. Sylte has made no claim for cost of future
care.

Summary

[39]        
In summary, I assess damages as follows:

[40]        
I have reviewed the global award and consider it
to be appropriate given Ms. Sylte’s injuries.  As indicated in para. 17,
this amount will be reduced by the amount of the settlement of the first
action.

[41]        
Subject to any further submissions, Ms. Sylte is
entitled to costs on Scale B.

“Sewell J.”

_____________________________

The Honourable Mr. Justice Sewell