IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100519

Docket:
M080383

Registry: Vancouver

Between:

Angela Victoria Poulton

Plaintiff

And

Brent Morris Inderbosch

Defendant

Before: The Honourable Mr. Justice Sewell

Reasons for Judgment

(In Chambers)

NATURE OF APPLICATION

[1]            
In this action the plaintiff Angela Victoria
Poulton sues for damages for injuries which she suffered in a motor vehicle
accident on January 27, 2006.  The defendant Brent Morris Inderbosch has
admitted that he is solely responsible for the accident.

[2]            
The accident occurred while Ms. Poulton was
driving her Pontiac Aztec SUV to work.  Mr. Inderbosch went through a red
light and his vehicle struck Ms.  Poulton’s vehicle on the right passenger
side.  Ms. Poulton’s vehicle was heavily damaged and was knocked across
the road and bounced off the curb at the far side of the street and
intersection.  The cost of repairing Ms. Poulton’s vehicle was $12,000.

[3]            
This matter came before me as a result of the
defendant’s application for summary trial pursuant to Rule 18A of the Rules
of Court.  The plaintiff does not dispute that this case is appropriate for
summary trial notwithstanding conflicts in the medical evidence. 

[4]            
In this case both parties have taken out jury
notices and I am told by counsel that if the case proceeds to a full viva
voce trial that trial will take up some 10 days of court time.

[5]            
I did have some misgivings about the adequacy of
a summary trial given the conflicts in the medical evidence and the defendant’s
cross-examination of Mr. Poulton which suggested I should have reservations
about her credibility. Given the circumstances
described above and counsel’s agreement with respect to Ms. Poulton
supplementing her affidavit evidence,  I am satisfied that I can find the facts
necessary to decide this case and it is not unjust to do so on this summary
trial application.

[6]            
Before turning to a review of Ms. Poulton’s
pre- and post-accident circumstances I will outline briefly the approach I will
take in assessing the evidence in this case.  The defendant cross-examined
Ms. Poulton pursuant to an order of Madam Justice Russell and asks me to
make findings adverse to Ms. Poulton’s credibility in certain respects.  It
seems to me that given it was the defendant who applied for summary trial I
should proceed on the basis that Ms. Poulton’s affidavit evidence is reliable
and credible unless she was specifically cross-examined with respect to it, or
it is contradicted by other credible evidence.

[7]            
At the outset of the application an issue arose
with respect to the use to which clinical records of Ms. Poulton’s family
doctor, Dr. Noble, could be put. Ms. Poulton had
attached Dr. Noble’s clinical records as an exhibit to her affidavit number 3
and confirmed in that affidavit that the records were true and accurate as of
the date they were recorded.  Counsel for the defendant objected to the
admissibility of the records, relying on Samuel v Chrysler Canada Ltd 2007
BCCA 431.  This objection was based in part on Ms. Poulton’s failure to confirm
that she had in fact experienced the symptoms reported to Dr. Boyle in her
affidavit.  To address this deficiency in the evidence counsel agreed that Ms. Poulton could testify in-chief that she was
experiencing the symptoms recorded at the time of her visits to Dr. Noble.  Counsel
for the defendant, of course, had the opportunity to cross-examine Ms. Poulton
with respect to her reported symptoms.

[8]            
I have carefully reviewed the cross-examination
of Ms. Poulton.  I note that Ms. Poulton was not cross-examined with
respect to her complaints of pain and with respect to the effect that her pain
and discomfort has had on her quality of life or her ability to engage in
social and recreational activities.  Importantly she was not cross-examined
about when she was able to return to work after the accident.  While I had only
a limited opportunity to observe Ms. Poulton under cross-examination I
formed a favourable impression of her credibility.  I found her to be a
forthright honest witness.

REVIEW OF EVIDENCE

[9]            
At the time of the accident Ms. Poulton was
33 years old.  She is now 37.  She has no children and lives with her partner
just outside of Chilliwack.  Ms. Poulton has a grade 12 education and has
for a significant period of time worked as a residential care aide looking
after patients with severe disabilities.

[10]        
Prior to the accident Ms. Poulton did not
experience the symptoms which have troubled her since the accident.  While she
was then and continues to be somewhat overweight for her height she regularly
engaged in walking, hiking, swimming and aquafit exercises.  She had no task or
weight restrictions at work.  She felt energized and not fatigued.

[11]        
Ms. Poulton deposes that as a result of the
accident she injured her neck and back and her left knee.  She reports that she
has experienced significant pain, headaches, fatigue and anxiety and depression
since the accident.  In addition to the above injuries and complaints
Ms. Poulton had a number of other minor injuries which did not trouble her
greatly and resolved within a short period of time after the accident.  As I
have already indicated, she was not cross-examined with respect to her reported
symptoms.  As a lay person Ms. Poulton is of course not qualified to give
an opinion with respect to her underlying medical conditions.  However I
consider that I can take into account her subjective complaints of pain,
headaches, fatigue, anxiety and depression in assessing her damages in this
case. 

[12]        
Ms. Poulton has suffered from both regular and
migraine headaches although the frequency and severity of these has diminished somewhat
over time.  She reports that she has difficulty sleeping due to her pain
symptoms.  Ms. Poulton also deposes that her injuries and symptoms have
had a significant effect on her recreational activities.  She is no longer able
to participate in strenuous hiking, and her walking endurance is reduced.  She
can walk fairly well on flat ground but reports having significant difficulty
with rough ground and inclines.

[13]        
Ms. Poulton also deposed that she has been
prescribed anti-inflammatories, muscle relaxants and painkillers by
Dr. Noble, and by Dr. Pankaj Dhawan, a specialist in rehabilitation
medicine.  She states that these medications are necessary for her to cope with
at her work.  They reduce her pain to more manageable levels.  They can
sometimes ward off headaches as she feels them coming on or reduce the impact
of the headaches when they do set in.

[14]        
Ms. Poulton deposed that she was unable to
return to work until March 1, 2007.  At para. 35 of her affidavit #1 she states
that she was off work as a result of the collision injuries from January 27,
2006 to March 5, 2007.  Ms. Poulton was not cross-examined with respect to
this statement.  I think that this statement should be read in conjunction with
para. 12 of her affidavit #1 in which she reported complaints about pain and
para. 17 of that affidavit in which she comments on the beneficial effect of
medication on her symptoms and her ability to work.

[15]        
The plaintiff filed a medical/legal report of
Dr. McKenzie, an orthopaedic surgeon.  He examined Ms. Poulton on
September 14, 2009.  Dr. McKenzie is of the opinion that
Ms. Poulton has ongoing left knee pain which is likely patellofemoral knee
pain as well as ongoing pain in her neck and upper back.  In his opinion her
symptoms are caused by the accident including a direct blow to her knee.

[16]        
The defendant relies on a report dated November
25, 2007 from Dr. Mark Boyle, an orthopaedic surgeon.  Dr. Boyle’s opinion
is that Ms. Poulton is pain-focussed and does exhibit pain behaviour.  He
was of the opinion that there was no objective sign of any pathology with respect
to Ms. Poulton’s left knee.

[17]        
The defendant particularly relies on those
portions of Dr. Boyle’s opinion in which he comments on Ms. Poulton’s
disability.  Dr. Boyle examined Ms. Poulton once, on November 25,
2007.  He stated that she has become fixated on her left knee despite the
paucity of pathological signs.  He expressed concern about the use of Oxycontin
and Oxycodon, which are opiate-based medications, and recommended that they be
discontinued.  Finally, Dr. Boyle stated that in his opinion Ms. Poulton
required counselling for the status of her left knee and appropriate
physiotherapy.

[18]        
Counsel for the defendant has asked me to
discount Dr. McKenzie’s opinion because it is premised on Ms. Poulton
having received a direct blow to her knee in the accident.

[19]        
Ms. Poulton stated in her affidavit and on
her examination for discovery that she had no specific recollection of what
part of her body came into contact with her vehicle in the collision.  However
she told Dr. McKenzie that she recalled hitting the left side of her body
on the door and that both her knees came up and hit the dash in the collision. 
Ms. Poulton was cross-examined with respect to the alleged inconsistency
between what she told Dr. McKenzie and her sworn evidence.  Her explanation
for that inconsistency was that when she was being examined and swearing her
affidavit she was directing her mind to what she can recall having actually
experienced during the agony of the collision.  She stated that immediately
after the accident she felt pain in both knees and that when she attempted to
stand her left knee buckled under her.

[20]        
In addition there is evidence before me that
Ms. Poulton did suffer a contusion to her left knee in the collision.  In
her testimony Ms. Poulton confirmed that the observations recorded in
Dr. Noble’s clinical records accurately recorded the information and
description of symptoms she provided to him when she saw him.  On February 2,
2006, Dr. Noble noted a bruise over the left knee cap.  In addition Dr. Kousaie,
who examined Ms. Poulton on a referral from Dr. Noble, was of the opinion
Ms. Poulton had contused her left knee.

[21]        
I conclude that Ms. Poulton did injure her
left knee in the motor vehicle accident on January 27, 2006.

[22]        
As neither Dr. McKenzie nor Dr. Boyle
were cross-examined with respect to their reports I am left in the position of
having to assess their differing conclusions without the benefit of such
cross-examination.  However I have concluded that I prefer Dr. McKenzie’s
opinion with respect to Ms. Poulton’s prognosis to that of
Dr. Boyle.  It seems to me that Dr. Boyle did not adequately consider
or address the question of the subjective element of pain in his report.  While
it is difficult to ascertain exactly what he meant when he described her pain
as inappropriate it seems to suggest that it is not genuine.  He equated the
extent of Ms. Poulton’s injuries and disabilities with the extent of
objective findings of pathology in the left knee. 

[23]        
All three orthopaedic surgeons who examined
Ms. Poulton agree that there are minimal objective findings of injury to
the left knee.  This however does not address the subjective complaints which
Ms. Poulton has.  Dr. McKenzie alone took those subjective complaints
into account.  Dr. Kousaie last saw Mr. Poulton on August 22, 2006.  He noted
she presented with left knee pain.  His opinion is of little assistance in
assessing the issue of the duration and severity of the pain Ms. Poulton
reports.

[24]        
I am satisfied that the complaints and problems
which she has had with that knee since the accident have been caused by the
injuries she suffered in the motor vehicle accident.

NON-PECUNIARY DAMAGES

[25]        
I have already indicated that I consider Ms.
Poulton to be a credible and reliable witness.  I have accepted her evidence
that she experiences persistent pain and discomfort in her left knee and that
she continues to suffer from periodic headaches.  However, I do note the lack
of independent corroboration of Ms. Poulton’s evidence with respect to the
effect that these complaints have on her overall physical capacity.  I am particularly
concerned by the failure to present medical evidence from Dr. Dhawan.  Ms.
Poulton’s evidence is that she has seen Dr. Dhawan more than ten times since
November 2006 with the most recent appointment being in February 2010.  She
also indicates in her evidence that Dr. Dhawan was her primary physician in
terms of prescribing and monitoring medications related to her injuries.

[26]        
In this case, Ms. Poulton has suffered an injury
which continues to trouble her more than four years after the accident.  Given
the duration of Ms. Poulton’s symptoms and the inability of any of the treating
physicians to isolate an organic cause for those symptoms, I agree with Dr.
Mackenzie’s opinion that the prognosis for the resolution of Ms. Poulton’s pain
is poor.  There is evidence that Ms. Poulton’s headaches have significantly
improved since the date of the accident and there is therefore some reason to
conclude that those headaches will continue to improve.  I am also mindful of
the evidence that Ms. Poulton seems to be able to function with the assistance
of medications.  On the other hand, Ms. Poulton has testified that the injuries
have had a significant impact on the quality of her life, particularly with
respect to her ability to pursue such recreational activities as hiking and
aqua size. 

[27]        
I was referred to a number of decisions by both
counsel with respect to an appropriate range of awards for non-pecuniary
damages.  Ms. Poulton’s counsel submitted to me that an award of $70,000 was
justified given the evidence of permanent symptoms.  The defendant’s counsel
submits that an award in the range of $30,000 to $40,000 is appropriate in this
case.

[28]        
In considering this issue, I have taken guidance
from the decision of our Court of Appeal in Stapley v. Hejslet 2006 BCCA
34.  Taking into account the considerations outlined in that case, I note that
Ms. Poulton faces on-going and long-term pain from the injuries she suffered in
the accident, is experiencing emotional distress as a result of those symptoms and
has suffered certain lifestyle deprivations already outlined in these reasons.

[29]        
I have already noted that there is a significant
lack of corroboration with respect to the impairments testified to by Ms.
Poulton.  This lack of corroboration is of course not fatal to Ms. Poulton’s
case, particularly in view of the impression which I have formed of her
credibility.  Nevertheless I am left almost entirely with Ms. Poulton’s
subjective assessment of the extent to which her ability to engage in some of
her pre-accident activities has been impaired.  This would suggest I take a
cautious approach in assessing damages.

[30]        
I conclude that an award of $70,000 is appropriate
in this case to compensate Ms. Poulton for her pain, suffering and loss of
amenities of life.  In assessing these damages I have taken into account that
Ms. Poulton will likely seek symptomatic relief from medication for the reasons
set out in paras. 50 and 51 of these reasons.

PAST INCOME LOSS

[31]        
Ms. Poulton was off work from the date of the
accident until March 5, 2007, a period of approximately 13 months.  The
defendant acknowledges that Ms. Poulton has suffered some past income loss as a
result of the injuries she suffered in the motor vehicle accident.  However,
the defendant’s position is that 13 months is an excessive time for Ms. Poulton
to have been away from her job and that the medical evidence in this case does
not support such a long absence.

[32]        
The onus is of course on Ms. Poulton to prove
her past income loss.  In her affidavit evidence Ms. Poulton testified that she
was off work as a result of the injuries she suffered in the collision from
January 27, 2006, to March 5, 2007.  She also testified that when she returned
to work her employer required that she be cleared by her physician, Dr. Noble. 
Counsel for the defendant points out that there was no evidence from any of Ms.
Poulton’s treating physicians to corroborate her statement that the injuries
she suffered were the cause of all of her wage loss.

[33]        
The defendant’s counsel referred me to Dr.
Boyle’s March 3, 2010, medical/legal report in which he states as follows:

“This writer
feels that the time away from work of 13 to 14 months was excessive.  It was
felt that a four to six month period away from work would have been the maximum
to be considered appropriate.  No further time loss thereafter would be
considered appropriate.”

Dr. Boyle also states that after
Ms. Poulton’s return to work in March 2007 she continued to take
occasional days off and that Dr. Boyle felt that this was also
inappropriate.

[34]        
Based on Dr. Boyle’s comments, the
defendant submits that I should restrict compensation for past loss of income
to a period not exceeding six months.  I do not accept this submission.  I note
that in Dr. Boyle’s initial medical/legal opinion, which was based on an
examination which occurred after Ms. Poulton returned to work, he
recognized that Ms. Poulton was pain-focussed and in his view required
counselling for the status of her left knee.  Pain and tolerance for pain are
of course subjective.  In my view the opinions expressed by Dr. Boyle with
respect to the appropriateness of the amount of time that Ms. Poulton was
away from work are beyond the scope of his professional expertise and in
addition fail to address the impact which Ms. Poulton’s pain had on her
ability to tolerate her job.

[35]        
Ms. Poulton also deposed in her affidavit no. 3
that during her 13 months off work after the collision she was in regular
consultation with Dr. Noble about her return to work and her symptoms.  She
testified that she was eager to return to work as soon as she safely could.

[36]        
According to Dr. Noble’s medical records,
confirmed by Ms. Poulton’s evidence, on February 13, 2007, Ms. Poulton was
still experiencing pain at a level of 5 out of 10 and wanted to return to
work.  At that point she was ready to give a return to work a try
notwithstanding her on-going pain and the fact that she was fitted with a knee
brace.

[37]        
Ms. Poulton was not cross-examined with respect
to her evidence about her ability to return to work, and in particular her
subjective perception of her ability to tolerate the demands of her job.  While
the evidence on this point is far from perfect I have concluded that Ms.
Poulton has succeeded in establishing on a balance of probabilities that she
would not have missed 13 months of work but for the injuries and symptoms she
suffered as a result of the motor vehicle accident.

[38]        
Plaintiff’s counsel submitted that an
appropriate award for past income loss, net of taxes, was $37,500.  In his
written submissions to me he set out in some detail how he arrived at that
figure.  I accept counsel’s submission in this regard and award damages for
past income loss of $37,500.  I have attached the detailed submissions of
counsel setting out his methodology as Schedule “A” to these reasons.

LOSS OF FUTURE INCOME EARNING
CAPACITY

[39]        
Ms. Poulton makes a substantial claim for
damages for loss of future income earning capacity.  The proper principles to
be applied in assessing such a claim have been the subject of considerable
judicial discussion.  In Perren v. Lalari 2010 BCCA 140 the Court said
at ¶ 32:

[32] A plaintiff must always prove, as was noted by Donald J.A. in Steward
by Bauman J. in Chang and by Tysoe J.A. in Romanchych, that
there was a real and substantial possibility of a future event leading to
income loss.  If the plaintiff discharges that burden of proof then depending
upon the facts of the case the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach as in Steenblok
or a capital asset approach as in Brown.

[40]        
In this case I am unable to find that Ms.
Poulton has established a substantial possibility of a future event leading to
an income loss.  The evidence before me is that Ms. Poulton continues to be
employed in her former occupation.  There is little or no evidence before me of
any significant impact on her income from the time she returned to work in
March 2007 to the date of trial.  While Ms. Poulton has testified that her
employer has accommodated her to a limited extent I was unable to discern any
material difference in her post- and pre-accident duties.   Ms. Poulton did depose
that she had considered applying for work as a care-aide at the Abbottsford
Regional Hospital at a much higher wage rate than she earns at her present
employment.  She did not do so because she concluded that she could not perform
the heavier work and significant amount of additional walking required at that institution. 
However, this evidence falls short of establishing a substantial possibility
that she would have pursued such a position but for the accident.  In addition,
Ms. Poulton presented no objective or corroborative evidence with respect to the
increased demands of such a position. 

[41]        
I am particularly concerned in this regard by
the absence of evidence from Dr. Dhawan, whom Ms. Poulton described as being
the physician who was the primary care-giver with respect to her injuries.  In
addition, no corroborative evidence was presented by Ms. Poulton with respect
to any functional capacity deficits.  I therefore conclude that Ms. Poulton has
not met the burden of establishing a substantial and real possibility of future
income loss and decline to make any award to her in that regard.

SPECIAL DAMAGES

[42]        
Ms. Poulton claims special damages for
physiotherapy, benefits premiums which she paid, medications and the following
miscellaneous items:

[43]        
There does not appear to be any dispute with
respect to the sum of $2,320.00 claimed for physiotherapy expenses.  In my view
the amounts claimed for benefits premiums are properly recoverable as special
damages.

[44]        
Similarly, I do not understand the defendant to
take serious issue with the claim for $988.99 for miscellaneous items detailed
in paragraph 42.  While the evidence with respect to the $750.00 paid for the
MRI is somewhat vague, I take it that this amount was paid in order for Ms.
Poulton to obtain an MRI more quickly than she could have done through the
Medical Services Plan.  Counsel for the defendant has indicated that she is not
opposing the inclusion of this amount in the claim for special damages.

[45]        
The most problematic aspect of the claim for
special damages is the claim for medications totalling $15,334.34.  Two issues
arise with respect to this claim.  The first is that the amount of the claim is
for the total amount charged for the medications and not the amount which Ms.
Poulton was required to pay.  Of the $15,334.34 cost of these medications, Ms.
Poulton herself paid only $753.56 out of her own pocket.  In the course of
argument I gave leave to counsel for the defendant to determine whether the
Insurance Corporation of British Columbia had paid any portion of these
claims.  Counsel have now informed me the amounts were paid pursuant to Ms.
Poulton’s own extended medical benefits insurance coverage arranged through her
employer and not by ICBC.  They did agree that this claim should be reduced to
$14,873.82 because of some duplication in the amounts claimed

[46]        
 As Ms. Poulton contributed to the cost of the
premiums for this coverage and the balance of the premiums were paid as part of
her work compensation it would appear that there is no basis to restrict her
recovery to the amount she actually paid out-of-pocket.

[47]        
The second issue relating to this claim is
whether Ms. Poulton has proven on a balance of probabilities that she would not
have incurred this expense but for the injuries she suffered in the motor
vehicle accident.  In her affidavit evidence Ms. Poulton deposes that these
expenses related to rehabilitation for her injuries suffered in the motor
vehicle accident.  These medications were prescribed by Dr. Dhawan and Dr.
Noble.  I do not have the benefit of medical/legal opinions from either of
these doctors.  On the other hand, the evidence before me was that Ms. Poulton
was seeing Dr. Dhawan exclusively for treatment for the injuries she suffered
in the motor vehicle accident and that the prescriptions from Dr. Noble relate
to medication taken to address the symptoms of her injuries. 

[48]        
With respect to the special damages claimed, the
plaintiff has produced receipts which on their face indicate that either Dr.
Dhawan or Dr. Noble issued prescriptions.  I conclude that I can accept the
receipts as evidence of the fact that these doctors did prescribe the
medication.  In all of the circumstances I therefore conclude that Ms. Poulton
has established that the medications were obtained either because they were
considered to be medically necessary by her treating physicians or that her
physicians prescribed the medications to alleviate the symptoms from which she
was suffering.  I therefore allow this claim in the amount of $14,873.82.

[49]        
The total of the itemized claims for special
damages exceeds $19,000.  However, Ms. Poulton seeks special damages limited to
$18,500.  I therefore assess her special damages in that amount.

COST OF FUTURE CARE

[50]        
Ms. Poulton claims for the cost of acquiring medication
into the future as a cost of future care.  With respect to this claim, I have
concluded on the authority of Milina v. Bartsch, [1985] B.C.J. No. 2762;
49 B.C.L.R. (2d) 33 that Ms. Poulton has not established that the medications will
continue to be medically necessary.  Unlike the prescriptions filled to date, I
do not have the comfort of knowing that the medications have been prescribed. 
In Milina, Madam Justice McLaughlin, as she then was, made a
distinction between allowing claims for medication as a cost of future care and
taking the likelihood that a plaintiff would continue to take such medication to
obtain solace into account in assessing non-pecuniary damages.

[51]        
In this case I conclude that the medications in
question do provide solace and symptomatic relief to Ms. Poulton.  I therefore
considered it appropriate to include an allowance for on-going medications as
part of the award for non-pecuniary damages.  Given my conclusion that Ms.
Poulton will continue to experience symptoms for the foreseeable future, Ms.
Poulton’s evidence with respect to the ameliorative effect of these medications
and the amount that she has demonstrated that she spent on these medications to
the date of trial I considered it appropriate to assess a total award for
non-pecuniary damages of $70,000.00.

SUMMARY

[52]        
In summary I award Ms. Poulton damages in the
following amounts:

non-pecuniary
damages                     $70,000.00

past
loss of income                             $37,500.00

special damages $18,500.00
TOTAL:                                            $126,000.00

[53]        
Ms. Poulton is entitled to prejudgment interest
on the amounts awarded for past loss of income and special damages.  The
parties may apply for directions if they are unable to agree on the quantum of
such interest.

COSTS

[54]        
Ms. Poulton is entitled to her costs of this
action on Scale B, subject to any application counsel may wish to make pursuant
to Rule 57.

“The Honourable Mr. Justice Sewell”

SCHEDULE “A”

PAST INCOME LOSS

January 27, 2006 to March 5, 2007 = 13
months. (Poulton #2, para.7).

 2005 income = $35,816. (Poulton
#2, para. 23).

 13/12 x $35,816 = $38,800.

Plus signing bonus of $600. (Poulton #2,
para. 8).

Plus loss of wage rates wage rate increases
during the 13 months:
15.50/14.69 = 5.5% increase April 1, 2006. (Poulton #2, para. 32).

Subtotal = $38,800 + 5.5% + $600 = $41,500.

Income tax rate: 2005 = 12.6%.

 $41,500 x 87.4% = 36,271.

Lost RRSP employer contributions + delayed
wage rate increases upon return to work.

The
Plaintiff submits a net Past Income Loss of $37,500.