IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100408

Docket:
43392

Registry: Vernon

Between:

Bawne
Lynn Booth

Plaintiff

And

Richard
John Gartner and
AutoCanada Northtown Auto GP Inc. doing business as
Northland Chrysler Jeep Dodge and Northtown Auto LP

Defendants

Before: The Honourable Mr. Justice Cole

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff claims general damages, past loss
of income, diminished earning capacity, cost of future care and special
damages, as a result of a motor vehicle accident on February 4, 2007. Liability
is admitted and special damages have been agreed to in the amount of $12,000.

BACKGROUND

[2]            
This matter is complicated by the fact that the
plaintiff was involved in a prior motor vehicle accident on April 25, 2005
(“Accident #1”). That was a single vehicle accident where the plaintiff
suffered a dislocation and fracture of her right shoulder as well as a
suspected rotator cuff tear. As a result of that accident, the plaintiff was
not able to continue working as a manager and cook at the Royal York Golf
Course in Armstrong, British Columbia. She also had difficulties performing
household chores on her six acres of rural property. Her condition improved
somewhat over time, but she was still left with pain, weakness and stiffness in
her right shoulder at the time of the motor vehicle accident on February 4,
2007 (“Accident #2”). She also had not returned to work.

[3]            
Shortly before Accident #2, the plaintiff was
able to use her left arm to operate a chainsaw and split firewood. She was also
able to hike and take longer walks with her dog. In short, prior to Accident
#2, there was no issue with her mobility. This is confirmed by her friend, Ms. Peterson,
who saw the plaintiff on a frequent basis between Accident #1 and Accident #2
and who I found to be a credible witness.

[4]            
In Accident #2, the plaintiff was stopped at a
red light. When it turned green, she commenced turning left onto the
TransCanada Highway and her car was struck in the right front fender by the
motor vehicle owned by the defendant AutoCanada Northtown Auto GP Inc. doing
business as Northland Chrysler Jeep Dodge and Northtown Auto LP and operated by
the defendant Richard John Gartner (the “defendant”). The defendant entered the
intersection against the red light. The plaintiff’s vehicle was a write-off. She
describes how she was not expecting the accident, her vehicle was hit in the
front passenger side, and she was thrown around inside her vehicle, although
she was wearing a seatbelt.

[5]            
After the accident she went to Ms. Peterson’s
home where she stayed overnight. She described herself as being in shock and she
was in a lot of pain. Ms. Peterson describes how the plaintiff was rubbing
her neck, appeared to be in pain, and went to the hospital.

[6]            
The following day the plaintiff’s pain
continued, she had difficulties getting out of bed, there was pain in her lower
back, her neck, her hip, and shoulders. There were no symptoms of pain in her
neck, hip, or lower back prior to Accident #2.

[7]            
Accident #2 aggravated the injury to her right
shoulder, which lasted a few months before it returned to her pre-accident
level. Accident #2 also resulted in significant neck pain, which has improved
but is still ongoing to date. There is also ongoing mid to lower back pain
which radiates into her right leg, causing numbness and sciatica pain. Finally,
she suffered from depression but that has now resolved itself.

[8]            
As a result of Accident #2, she was unable to
maintain her home because of her inability to do all of the chores and due to
financial reasons. She sold that home and now resides on a smaller acreage by
herself. She also had to have assistance with cooking and cleaning and doing
dishes for months after Accident #2.

[9]            
She still has difficulties remaining seated or
sedentary for extended periods of time, as it causes pain in her lower mid-back.
She now experiences pain when she takes her dog on lengthy walks, an activity
she enjoyed prior to Accident #2. She also now has difficulty walking uphill or
up stairs.

[10]        
She takes some pain medication and has received
injections in her spinal facet joint in order to relieve her back pain. She
often suffers from incontinency, even today, because of the back pain.

[11]        
On June 22, 2007, she underwent arthroscopic
surgery on her right shoulder which has provided some relief, however there is
a suspected supraspinatus tear in her shoulder which was not discovered until
2009.

POSITION OF THE DEFENDANT

[12]        
The defendant says that but for the plaintiff’s
pre-existing degenerative back condition and the injuries related to Accident
#1, Accident #2 would not have prevented her from working apart from the first
two months after the accident. The defendant relies upon the opinion of their
expert, Dr. Coghlan, whose report was filed but who was not called. His
expertise is in physical medicine and rehabilitation. He examined the plaintiff
on July 9, 2009, and his report dated July 24, 2009 states:

Her major ongoing issue at this stage is the
ongoing pain in her back at the lumbar sacral junction.

It has become
particularly worse in the last year. It has become more restrictive. She …
used to be able to walk for two hours at a time but she now finds it difficult
because of pain to walk more than 6-8 blocks. If she is walking on an incline
she develops increased pain compared to walking on the flat. If she does any
lifting or straining the back pain tends to get worse.

[13]        
Dr. Coghlan was of the view that the
plaintiff sustained a grade 2 whiplash associated disorder of her neck,
associated with headaches, which over the period of a few months improved
significantly with therapy. After Accident #2 she developed an acute
exasperation of pain in her lower middle back but primarily in her low back. Over
time this became progressively worse with more radical symptoms involved in
both lower extremities, but in the right leg more than the left.

[14]        
He noted that an x-ray and CT scan showed that
she had quite advanced facet arthritis at L4/5 and L5/S1. He concluded that
that was the cause of her progressive back syndrome.

[15]        
The report then states:

Because her symptoms have been progressive
over the past year I am not convinced that the accident per se was a major
aspect in her back symptoms.

The last area of concern is her right
shoulder where I think she had some aggravation of her underlying rotator cuff
tendinitis that is also complicated by reabsorbtion of the greater tuberosity
on x-ray. Again the disability and dysfunction in her right shoulder has I
think to be related back to the previous accident in 2005 when she did the
damage.

From the point
of view of this accident if she did not have her pre-existing problems, I doubt
that the accident would have caused significant disability such that it would
have prevented her from working, apart from the first 1-2 months after the
accident.

POSITION OF THE PLAINTIFF

[16]        
The position of the plaintiff is that Dr. Coghlan
was in error when he stated that “she now finds it difficult because of pain to
walk more than 6-8 blocks” and when he concluded that her back symptoms are
progressive. The plaintiff’s position is that she was able to walk for long
periods prior to Accident #2, but following it she experienced a significant
decrease in her walking tolerance.

[17]        
Dr. Vallentyne, an expert in physical
medicine and rehabilitation, filed a report dated September 25, 2008, and a
follow-up report dated October 6, 2008. He did not give evidence.

[18]        
Dr. Vallentyne’s first report notes:

She did not
suffer from back pain after the 2005 MVA. The back pain started after the 2007
MVA. … The back pain is constant ranging in severity from a minimum of 2.5/10
to a maximum of 7.5/10. She has noted some improvement over the last six
months.

[19]        
That statement by Dr. Vallentyne is
consistent with the evidence of the plaintiff. Her evidence was that after the
first accident she was in rehabilitation which was helping to get her in better
physical condition. She worked out a couple of hours every day and walked up to
6 km a day. She also went swimming. The changes in her walking after the second
accident, to a great extent, are supported by the evidence of Ms. Peterson.

[20]        
Meridian Rehabilitation Consultants also filed
reports but were not called to give evidence. They did a functional capacity
evaluation after the first accident. That was completed in October 2006. Their
second functional capacity evaluation was performed in December of 2009, after Accident
#2. What is noted is that after Accident #1, the plaintiff was able to walk
briskly for 20 minutes without fatigue and reported no limitations. After
Accident #2, she was able to walk for five minutes with a reported increase in
back pain. It was noted that walking tolerance is limited.

[21]        
The 2009 Functional Capacity Evaluation Summary
Report states:

In summary, when
comparing the results of the 2006 FCE to the 2009 FCE, Mrs. Booth has had
a significant decrease in her walking tolerance and in her ability to perform
low level work. These are directly linked to low back pain rather than shoulder
pain. She has had an improvement in her shoulder function; likely due to the
results of shoulder surgery in 2007 and subsequent rehabilitation.

CAUSATION

[22]        
I am satisfied that the plaintiff’s ability to
walk for any appreciable distance decreased after Accident #2. I am satisfied
that Dr. Coghlan was mistaken when he wrote that her lower back has become
worse in the last year and that she used to be able to walk two hours at a time
but now finds it difficult to walk more than 6 to 8 blocks. I therefore prefer
the evidence of Dr. Vallentyne in respect to the issue of her lower back.

[23]        
I accept Dr. Vallentyne’s opinion that the
degeneration in her lower back is severe at two levels and it is likely she
would have been troubled by lower back pain and stiffness at some time in the
future, absent Accident #2. However, I am also satisfied that although the
degeneration is pre-existing, there was symptomatic acceleration of the facet
arthritis as a result of Accident #2.

[24]        
Dr. Vallentyne was of the opinion that as
of October 2008, the plaintiff had not reached maximum medical improvement with
respect to her lower back since she required assistance with activities
involving heavy lifting and repetitive bending and twisting, such as spring and
fall clean up and snow shovelling.

[25]        
Ms. Phillips’ functional capacity report of
December 4, 2009, opines that the plaintiff has suffered a significant decrease
in her walking tolerance and ability to perform low level work, when comparing
the plaintiff’s functional capacity as evaluated in 2009 with the functional
capacity evaluated in 2006. Ms. Phillips noted that these limitations are
“directly linked to low back pain rather than shoulder pain” and that the
plaintiff had no functional limitations resulting from her lower back pain
prior to the 2007 accident. I find that Ms. Phillips’ opinion is
consistent with the evidence of the plaintiff and that her major functional
limitations are a result of low back pain which is directly attributable to the
motor vehicle accident in 2007.

REDUCTION OF AWARD FOR PLAINTIFF’S PRE-EXISTING
DEGENERATIVE CONDITION

[26]        
The CT scan of September 20, 2008, according to Dr. Vallentyne,
“showed severe bilateral degeneration of the facet joints at the L4-5-S1 levels
in addition to a minor 3 mm L4-5 degenerative anterolisthesis”.

[27]        
According to Dr. Vallentyne, degenerative
changes take years to develop and he found it was probable that the plaintiff
had degenerative changes of her lower lumbar facet joints prior to the 2007
motor vehicle accident. He concluded that “[g]iven that the degeneration is
severe at two levels, it is likely that Ms. Booth would have been troubled
by low back pain and stiffness at sometime in the future absent the 2007 MVA.”

[28]        
I am satisfied that there is a measurable risk
that the pre-existing condition would have detrimentally affected the plaintiff
in the future, regardless of the defendant’s negligence, and I must take that
into account in reducing the overall award.

[29]        
The principle to be applied is found in Zaruk
v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43 [Zaruk].
There the plaintiff had suffered a soft-tissue injury but some of her symptoms
by the time of trial were consistent with degenerative changes. The Court was
not satisfied that the general condition would have become symptomatic between
the date of the accident and the date of trial, but concluded at para. 40,
that there was a measurable risk that it would have become symptomatic in the
future:

[40]   However,
application of the crumbling skull doctrine may not result in the same reduction
for past losses as future losses. Past losses must be assessed on the basis of
a balance of probabilities. “Once the burden of proof is met, causation must be
accepted as a certainty,” [Athey v. Leonati, [1996] 3 S.C.R. 458] ¶ 30).
But for the assessment of future losses, “[a] future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation,” (Athey ¶ 27)

[30]        
The Court then reduced non-pecuniary damages by
15% and future care damages by 20%.

[31]        
Because the plaintiff’s degenerative condition
was described by Dr. Vallentyne as “severe bilateral degeneration”, I am
of the view that a large deduction is appropriate in this case and I find an
appropriate deduction for non-pecuniary damages is 25% and for future care
damages, 30%.

GENERAL DAMAGES

[32]        
The defendant says that the range of damages is
between $30,000 and $38,000 and they rely upon the decisions of Hamilton v.
Vance, 2007 BCSC 1001; and Penland v. Lofting, 2008 BCSC 507.

[33]        
The plaintiff says that the appropriate range of
damages is $50,000 to $60,000 including a 10 to 15% reduction for the
possibility of future back pain symptoms attributable to her degenerative
condition. The plaintiff relies upon Haag v. Serry and GMAC Leaseco
Corporation, 2009 BCSC 187; Travis v. Kwon, 2009 BCSC 63; Ghani
v. Umran, 2008 BCSC 585; and Zaruk.

[34]        
In Stapley v. Hejslet, 2006 BCCA 34, 263
D.L.R. (4th) 19, Madam Justice Kirkpatrick, speaking for the majority of the
Court of Appeal, states at paras. 45-46:

[45]      I think it is instructive to
reiterate the underlying purpose of non-pecuniary damages. Much, of course, has
been said about this topic. However, given the not-infrequent inclination by
lawyers and judges to compare only injuries, the following passage from Lindal
v. Lindal, [[1981] 2 S.C.R. 629] at 637 is a helpful reminder:

 Thus the
amount of an award for non-pecuniary damage should not depend alone upon the
seriousness of the injury but upon its ability to ameliorate the condition of
the victim considering his or her particular situation. It therefore will
not follow that in considering what part of the maximum should be awarded the
gravity of the injury alone will be determinative. An appreciation of the
individual’s loss is the key and the "need for solace will not necessarily
correlate with the seriousness of the injury" (Cooper-Stephenson and
Saunders, Personal Injury Damages in Canada (1981), at p. 373). In
dealing with an award of this nature it will be impossible to develop a
"tariff". An award will vary in each case "to meet the
specific circumstances of the individual case" (Thornton at
p. 284 of S.C.R.).

[46]      The inexhaustive list of common
factors cited in Boyd [(2004), 237 D.L.R. (4th) 193] that influence an
award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although
they may arguably be subsumed in the above list:

(g)        impairment of family, marital and
social relationships;

(h)        impairment of physical and mental
abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[Emphasis in
original.]

[35]        
The plaintiff lost a great deal of her
independence because of Accident #2. She was forced to retain the services of
friends to assist in keeping her home and finally gave up her residence in late
2007 due to her inability to keep up her acreage and due to financial reasons. When
she moved, she still required friends to assist her in order to perform housekeeping
tasks such as cooking, cleaning and doing dishes.

[36]        
While she has regained much of her independence,
she still has difficulty walking which was very much a part of her physical
activity and interferes with her enjoyment of walking with her dog. I am
satisfied that the plaintiff, while still relatively young, has plateaued in
terms of her lower back pain and I consider that the accident has had a
significant detrimental effect on her independence. In the result, I award
general damages in the amount of $55,000, less the appropriate deduction for
her pre-existing condition.

PAST LOSS OF INCOME

[37]        
The plaintiff says that she should be awarded
$7,500 for past loss of income. The defendant says the plaintiff was
unemployable at the time of the second accident and has not made any sincere
efforts to obtain gainful employment.

[38]        
The plaintiff’s income for 2004 including
employment insurance benefits was $19,500. The following year, because of the
accident in 2005, her earnings were only $5,725 and she shows no earnings for
2007 and has not filed a 2008 income tax return.

[39]        
A year prior to the trial, the plaintiff
invested approximately $15,000 in a mobile power washing business as well as
joining a food supplement marketing business. There are, however, no
documents whatsoever and no evidence to show the income generated from those
businesses. Without that information, I am not satisfied that the plaintiff has
shown that she has suffered a loss of past income.

LOSS OF FUTURE EARNING CAPACITY

[40]        
In order to recover damages for loss of future
earning capacity, a plaintiff must always prove that there is a real and
substantial possibility of a future event leading to an income loss: Perren
v. Lalari, 2010 BCCA 140 at para. 32.

[41]        
Because of the plaintiff’s back pain, she is
prevented from pursuing employment where sitting for long periods of time is
required. That is what Mr. Trainor, a vocational rehabilitation consultant
found in his report. Ms. Phillips, in her functional capacity evaluation
concluded that the plaintiff is restricted both in terms of “alternating
between sitting and standing, with sitting being the main posture” and that
lower back pain is the limiting factor. Furthermore, the plaintiff experiences
severe restriction resulting from lower back pain in certain activities
including stooping activities, walking for more than 10 or 15 minutes, and low
level work.

[42]        
I am satisfied that according to the principles
set down in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) that the
plaintiff’s second motor vehicle accident has rendered her less capable overall
from earning income from all types of employment; she is now less valuable to
herself as a person capable of earning income in a competitive labour market,
she has lost the ability to take advantage of all job opportunities which might
otherwise have been open to her and she is less marketable as an employee to
any potential employers.

[43]        
The plaintiff is seeking an award in the range
of $35,000 to $40,000. In my opinion, the impact on the plaintiff’s future
earning capacity is not likely to be that extensive and therefore I am
satisfied that an appropriate award would be the sum of $30,000, less the
appropriate deduction for her pre-existing degenerative condition.

FUTURE CARE COSTS

[44]        
The total amount claimed by the plaintiff is the
sum of $43,000.

[45]        
With respect to future care, Dr. Vallentyne
suggested physiotherapy and traction while Dr. Coghlan did not believe
that passive intervention such as chiropractic or massage treatment was
advisable.

[46]        
Ms. Phillips made recommendations including
medication, pool and physical therapy, psychological counselling, vocational
counselling, ergonomics assessment, seasonal house making, and equipment for
homemaking and yard work. Mr. Trainor, the vocational rehabilitation
consultant, was of the view that a chronic pain clinic would substantially
increase the likelihood that the plaintiff will be able to be competitively
employable. The multidisciplinary pain programs at Columbia Centre, the
Victoria Pain Clinic or Canmore Pain Clinic in Alberta were recommended and the
cost of these programs varies from $4,000 to $20,000.

[47]        
I am satisfied that that recommendation is sound
and because the plaintiff has been out of the competitive employment market for
such a long period of time and she needs to get her pain under control, it
seems that the best program for her would cost $20,000 and I so order. I am
also satisfied that she is entitled to the services of a vocational case
manager, that she will need some physiotherapy, and a pool pass for a few years.
I therefore order an additional sum of $10,000, making a total of $30,000 less
the appropriate deduction.

CONCLUSION

[48]        
In summary, the Court awards:

General
Damages:                                $55,000 (less 25%);

Loss of Future
Earning Capacity:           $30,000 (less 30%);

Future Care Costs:                                $30,000
(less 30%);

Special
Damages:                                 $12,000;

plus interest under the Court Order
Interest Act, R.S.B.C. 1996, c. 79 on the applicable heads.

[49]        
If costs cannot be agreed upon, it may be spoken
to at a convenient date.

The
Honourable Mr. Justice F. W. Cole