IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100601

Docket: M52984

Registry:
Nanaimo

Between:

Robert Anderson

Plaintiff

And

Daniel Cejka and
Mopsey Purcell

Defendants

Before:
The Honourable Mr. Justice Halfyard

Reasons for Judgment

Introduction

[1]            
In this trial, the plaintiff Robert Anderson claims against the
defendants Daniel Cejka and Mopsey Purcell for damages for personal injuries. The
plaintiff alleges that, on June 26, 2006, at Parksville, he was injured as a
result of the negligence of the defendant Daniel Cejka in the operation of a
motor vehicle owned by the defendant Mopsey Purcell.

[2]            
In their statement of defence, the defendants admit that the accident
alleged by the plaintiff occurred as a result of the negligent driving of
Daniel Cejka and that the defendants are liable for the accident. The trial
proceeded as an assessment of damages under Rule 66.

The Accident

[3]            
On June 26, 2006, at about 3:45 p.m., the plaintiff was
driving a 1998 Chevrolet Astro van on the Island Highway, travelling south, in
Parksville. Jeff Mercer, the plaintiff’s workmate, was riding in the front
passenger seat of the van. He stopped for a red traffic light at the
intersection of Moulinet Road, in the outside lane. The defendant Daniel Cejka
was behind the plaintiff, and was operating a 1994 Toyota Forerunner. He had
one passenger. He too was travelling south and was in the outside lane. Weather
conditions were good. The road surface was fairly level, and was dry.

[4]            
Mr. Cejka stopped his vehicle six feet or so behind the Chevrolet
Astro van, but then released pressure on the brakes and looked away from the
traffic ahead of him. The Toyota moved forward and hit the back end of the Chevrolet
Astro van. The front bumper of the Toyota was slightly higher than the rear
bumper of the van, and scraped over top of it, and dented the rear doors of the
van.

[5]            
The plaintiff was wearing his lap and shoulder seatbelt, looking forward
waiting for the light to change. He did not see the Toyota moving toward the
van and was not expecting to be rear-ended. He had his foot on the brake. The
impact caused movement of the van, and caused the plaintiff’s neck to go back
and then forward. There is a dispute as to whether the van was pushed forward
by the impact.

[6]            
The plaintiff got out of the van, and walked to the back end of it. He
spoke to Mr. Cejka briefly, and then they moved their vehicles off the
highway, and exchanged the necessary driving and vehicle information. Mr. Cejka
wrote a note, admitting that he was at fault for the accident.

[7]            
After exchanging information with Mr. Cejka, the plaintiff drove
the van one or two kilometres to the shop of his employer in Parksville. He
dropped off Mr. Mercer (who was finished work for the day) and then went
to do his final job of the day, which involved the repair of a heat pump. The
plaintiff had reported the accident to his employer, from the shop, by cell
phone. The plaintiff completed the job of changing the circuit board in a heat
pump, which took him two to two and one-half hours. Then he drove the van to
his home in Nanaimo.

The Claims

[8]            
The plaintiff claims damages under the following heads:

a)    pain and
suffering and loss of enjoyment of life;

b)    loss of future
earning capacity; and

c)     special
damages.

The Case for the Plaintiff

[9]            
The plaintiff alleges that he suffered a soft-tissue injury to his neck
as a result of the accident which was moderate in severity. He says that the
pain symptoms from the injury were acute for several weeks after the accident,
and that dizziness, neck stiffness and headaches persisted thereafter. The
dizziness resolved after about two months, but the neck stiffness has been
ongoing on an intermittent basis, with the occasional headache. The plaintiff
alleges that the effects of his injury have adversely affected his physical
ability to do the things that he had done and enjoyed doing before the
accident, although he does not claim disability. He states that his condition
has improved over the years but asserts that he has not recovered from the effects
of his injury. He alleges that his symptoms of neck stiffness from the accident
will continue for an uncertain time into the future.

[10]        
It was argued on behalf of the plaintiff that he should be awarded
damages for non-pecuniary loss in the range of $40,000 to $50,000, and $30,000
damages for impairment of future earning capacity. Special damages of $873.09
are claimed.

The Defence

[11]        
The defendants admit that the plaintiff sustained a soft-tissue injury
to his neck area as a result of the collision of June 26, 2006. But
it is alleged that the injury was only in the mild, not the moderate range. The
defendants deny that the plaintiff continues to experience symptoms caused by
the injury sustained on June 26, 2006, and say that the plaintiff had
substantially recovered by early 2007. In the alternative, the defendants state
that the plaintiff had fully recovered at least a year before the time of
trial, and that any intermittent symptoms between the fall of 2006 and the
spring of 2009 were infrequent and minor in nature.

[12]        
The defendants agree that the plaintiff should be awarded damages for
non-pecuniary loss, but submit that the appropriate range is $15,000 to $25,000,
in the event the court finds that the plaintiff’s symptoms persisted for an
extended period of time. They oppose any award for loss of future earning
capacity, and they question a number of the expenses claimed as special damages.

Fact Issues

[13]        
The main fact issues in the case are:

a)    What was the
degree of severity of the plaintiff’s injury?

b)    Has the
plaintiff recovered from his injuries, and if so, when did he achieve
substantial recovery?

c)     If the
plaintiff has not yet recovered from his injuries, when will he recover?

d)    What amount of
damages should be awarded for non-pecuniary loss?

e)    Should any award
of damages be made for impairment of future earning capacity, and if so, in
what amount?

f)      What
award should be made for special damages?

Evidence

– Summary of the plaintiff’s testimony

[14]        
The plaintiff is now 53 years of age. At the time of the accident on June 26, 2006,
he was 49. He is married and he and his wife have three children now aged 15,
10 and 8. The plaintiff’s wife is homemaker and she home schools the children. The
plaintiff had grown up in Quebec. He went to trade school in Montreal in the
mid-1990s, and obtained his certificate for an apprenticeship in refrigeration.
He moved to Nanaimo in 1997. Although he has had a continuous work history, he
was not able to get an apprenticeship in refrigeration until
November 2004, when he started working for the Comfort Group. He was
working for the Comfort Group at the time of the accident, and his work
consisted mainly of installing heat pumps for residences.

[15]        
In early 2009, the plaintiff obtained full certification as a journeyman
refrigeration mechanic (in addition to being a gas fitter). By
August 2009, the plaintiff was earning $27 per hour with the Comfort Group.
He asked for a pay increase, but this was refused. He had applied for work with
Archie Johnstone Plumbing and Heating Ltd., and obtained employment with that
firm in mid-August 2009. This was a union position, and paid $54 per hour.

[16]        
The plaintiff had been involved in a motor vehicle accident on
October 20, 2003. A small car that he was driving was rear-ended by a
large truck. He sustained soft-tissue injuries to his neck, and testified that
he recovered from the effects of this injury after about three months.

[17]        
The plaintiff testified that, up until he got home from work on June 26,
2006, he had not felt any pain, only a “heightened awareness.”  He stated that
after he got home from work that evening, he started to feel dizzy and had a
stiff neck and a headache. He said that those symptoms continued, so he went to
see a doctor after a few days. He did not miss any work in the almost four years
since the accident. However, the plaintiff testified that he has had ongoing
intermittent problems with his neck.

[18]        
The dizziness experienced by the plaintiff lasted for about two months
and then disappeared. His headaches became few and far between. But the
stiffness in his neck persisted. On two occasions after the accident, the
plaintiff “pulled his neck.”  This occurred once when he turned his neck while
driving a motor vehicle, and once when he turned his head while taking a shower.
He had never injured his neck in this way in the past, and is quite sure that
these episodes were caused by the injury he sustained in the accident. Those
events led the plaintiff to consult a doctor, and he was referred for
physiotherapy. There were five physiotherapy sessions between
December 4, 2006, and January 4, 2007. In November and
December 2008, the plaintiff attended for a few sessions of massage
therapy.

[19]        
Most of the heat pump installations the plaintiff was doing for the
Comfort Group were for private residences. This work often required him to work
in crawl spaces and involved considerable twisting of the neck with his head in
awkward positions. He would experience neck stiffness and pain in the evenings,
after a day’s work. His neck stiffness and pain also made it difficult for him
to sleep properly and he has purchased special pillows in an attempt to help
him sleep. The plaintiff said he felt more prone to making mistakes at work
(which I took to mean in the first few weeks or months after the accident).

[20]        
One of the reasons why the plaintiff sought a new job in the summer of
2009 was because Archie Johnstone Plumbing and Heating Ltd. install heating and
refrigeration equipment mainly in commercial buildings. His new job does not
require him to work in crawl spaces and so is much easier on his neck. Although
he earns much more money and has full fringe benefits in his new job, the
plaintiff and his wife are concerned that he has no seniority with his new
employer, whereas he had high seniority while working for the Comfort Group. The
plaintiff is at a higher risk of being laid off, in the event of an economic
downturn.

[21]        
The plaintiff has had to travel to distant locations on Vancouver Island
on occasion in his new job. His neck gets stiff when he has to drive for long
distances, such as from Nanaimo to Port Hardy or Tofino.

[22]        
The plaintiff says that his neck symptoms have improved since he changed
jobs in August 2009. The symptoms come and go, and he sometimes goes for
weeks without any problems.

[23]        
The plaintiff did not suggest that his injury had prevented him from
doing the activities he had done before the accident. He had specifically
mentioned yard work, riding bikes with his children and rebuilding an old car. But
he said that, for some considerable period of time, he did less of these things
than he had previously done, due to his neck stiffness.

[24]        
With an eye to the future, the plaintiff has set up a company through
which he can take on jobs doing heat pump installations in residences. To date,
he has done two jobs with another man helping him, and who did whatever work
was necessary in a crawl space.

[25]        
In cross examination, the plaintiff agreed that at some point between
August and November 2006, his symptoms became intermittent. He said that
after completing physiotherapy treatments and doing home exercises following
the pulled neck muscles, that particular problem was remedied and it never
occurred again.

[26]        
The plaintiff acknowledged that only once did a doctor prescribe
medicine for him, that being Dr. Janssen, who prescribed a muscle relaxant
on July 9, 2006. He agreed that he had never described his neck pain
as being higher than two out of ten.

[27]        
The plaintiff had testified that “the van moved forward” in the collision,
but said “I don’t know how far.” It was established in cross examination that the
plaintiff had made a statement in writing to ICBC on July 4, 2006,
and that in this statement, the plaintiff said:

I am not sure if the van was
pushed forward by the accident.

[28]        
The plaintiff attempted to explain this answer by asserting, in effect,
that he meant to say he did not know how far the van was pushed forward.

[29]        
The plaintiff acknowledged that on April 14, 2009, he told Dr. Lynne
MacKean that “the van was pushed forward a few feet into the intersection
following the impact.”  He said that what he told Dr. MacKean was “maybe
not accurate.”

[30]        
The plaintiff admitted that he had gone as long as three months without
having any symptoms in his neck and he acknowledged that there were other
shorter (but still significant) periods of time when he was symptom free. But
he said that, more often, it was a pattern of a few days between episodes of
neck stiffness.

[31]        
The plaintiff admitted that, on November 17, 2008, he told Dr. Roe
that he would get a sore neck at the end of the day, but that he was “fine
while at work (installs heat pumps).”

[32]        
The plaintiff agreed that on December 31, 2008, he saw Dr. Roe
at the request of his lawyer, and that during this examination he made
statements which, in substance, included the following:

a)    That his neck
was sore and stiff at the end of the day after work, four to five days a week;

b)    That he was
feeling okay when he wakes up in the morning, and usually has no problems
through the day;

c)     That he
uses Advil about once a week when the stiffness is bad, and sometimes uses a
horseshoe neck collar/cushion while watching television; and

d)    That his
symptoms do not keep him from doing anything and he has not stopped doing
anything he used to do.

Other Evidence as to the Force of Impact

[33]        
The evidence of Daniel Cejka was that there was a small dent on the
front bumper of the Toyota. He said that his vehicle was rolling for about six
feet at a speed of about three or four kilometres per hour and that the impact
did not push the van forward. Mr. Cejka stated that the Forerunner was
repaired by replacing the shell on the front bumper, but no cost of repair was
given.

[34]        
Jeff Mercer described the impact as being “a very harsh collision from
the rear.”  He testified that the van “moved forward a little bit, about four
feet,” as a result of the collision. He said he did not get out of the van, but
at a later time saw the damage to it, and described the rear doors as being
“caved in.”  In cross examination, he said that it might be more accurate to
describe that damage as being a “strong dent.”  When asked how he knew the van
had been pushed four feet ahead, Mr. Mercer answered that “it lurched
forward. It moved a bit.”  Mr. Mercer acknowledged having a bias against
ICBC.

[35]        
It was common ground that Mr. Mercer, Mr. Cejka and Mr. Cejka’s
passenger were not injured.

The Evidence of Barbara Anderson

[36]        
Barbara Anderson confirmed much of her husband’s testimony about the
problems he was having with his neck after the accident of
June 26, 2006, and the effects those problems had on his work, his
other activities and his sleeping. She also described similar concerns they had
about Mr. Anderson changing jobs in 2009, about his loss of seniority and
his vulnerability to layoff.

[37]        
Mrs. Anderson stated that the plaintiff had bought two expensive
pillows (totalling about $375) in an attempt to improve his ability to sleep
through the night. She said that these pillows have helped him but that he
still tosses and turns to some extent while sleeping. She said that she bought
him a horseshoe pillow for him to wear while watching TV, to prevent his neck
getting into an awkward position.

The Evidence of Dr. Richard Roe

[38]        
Dr. Roe had been the plaintiff’s family physician for eight to ten
years. His report dated February 3, 2009, was filed in evidence, and
he was required to attend at court for cross examination.

[39]        
In his report, Dr. Roe expressed the following opinions:

a)    The early
degenerative changes shown in the plaintiff’s cervical spine by the x-ray of
April 15, 2008, “are age-appropriate changes in the neck that I think
are unrelated to the motor vehicle accident.”

b)    “This man had
soft-tissue neck injuries from the motor vehicle accident of
June 26, 2006.”

c)     “His
symptoms are intermittent and non-limiting in terms of his lifestyle at the
moment.”

d)    “I am unable to
say when, if ever, he will be completely free of any neck pain and stiffness at
the end of a working day.”

[40]        
In his trial testimony on direct examination, Dr. Roe gave his
prognosis for the plaintiff’s recovery as being good in the long term, but said
he was uncertain as to how long recovery would take.

[41]        
In cross examination, counsel reviewed some of the findings made by
other doctors who had examined the plaintiff, and the x-ray results of
April 15, 2008. Dr. Roe said that the degenerative changes in
the plaintiff’s cervical spine would not be expected to be symptomatic,
although he allowed the possibility that such changes could cause achiness or
soreness in the neck.

[42]        
Counsel reviewed the plaintiff’s complaints and Dr. Roe’s findings
on the plaintiff’s office visits of November 17, 2008, and
December 31, 2008. Dr. Roe stated that he did not refer the
plaintiff to any specialist to investigate his ongoing complaints of neck
stiffness, because in his opinion, nothing further could be done for the
plaintiff’s problem in addition to what was already being done.

[43]        
Counsel asked Dr. Roe whether he knew that the plaintiff had gone
through periods of time up to three months in length without experiencing neck
symptoms. Dr. Roe said that he was unaware of this. He agreed that, if
that was true, it could affect his prognosis.

The Evidence of Dr. Lynne C. MacKean

[44]        
Dr. Lynne MacKean is a specialist in physical medicine and
rehabilitation, and has impressive qualifications. She examined the plaintiff
on April 14, 2009, at the request of his counsel. Her two medical
reports dated April 14, 2009, and May 5, 2009, were filed
in evidence. Counsel for the defendants required her to attend at the trial for
cross examination.

[45]        
The plaintiff’s complaints to Dr. MacKean included the following:

a)    “He states he
works installing heat pumps and ventilation systems and finds generally his
neck does not bother him with his work, but if he has to turn his head in an
awkward position then it will be sore.”

b)    “He works on
older cars for a hobby and he finds if he is lying underneath the car on his
back and he has to lift his head up then it will aggravate his neck pain.”

c)     “The one
activity that he describes as painful is when he is lying on his back and
lifting his head, so he should try to avoid that type of activity whenever
possible.” (In her trial testimony, Dr. MacKean confirmed that “the one
activity” referred to by the plaintiff was working underneath older cars.)

[46]        
Dr. MacKean’s findings on her examination of the plaintiff included
the following:

a)    The plaintiff
had a full range of motion of the cervical spine.

b)    The plaintiff
did not experience any pain during any movements of his neck or head.

c)     The
plaintiff did not experience any pain on palpation in the neck and cervical
spine.

d)    The plaintiff had
no significant discomfort involving the cervical or thoracic para-spinal
muscles or in the scapula region, but she detected “some muscular tightness
involving the cervical para-spinal muscles and the levator scapulae muscles
particularly on the right side.”

[47]        
In her report dated April 14, 2009, Dr. MacKean expressed
the following opinions, among others:

a)    Her impression
of the plaintiff’s condition was:  “grade two whiplash associated disorder
involving the cervical spine with persistent stiffness and occasional flare-ups
of pain.”

b)    The ongoing
problems with neck stiffness and intermittent flare-ups of pain described by
the plaintiff “are related to the motor vehicle accident that occurred on
June 26, 2006.”

c)     “I do not
think he has yet reached the point of maximal medical improvement and I expect
him to see improvement in his condition over the next few years.”

d)    Physiotherapy,
massage therapy or acupuncture treatment should only be used if the plaintiff
has flare-ups of neck pain which last for more than a few weeks.

e)    “I do not think
he is at increased risk of developing degenerative changes of the cervical
spine as the result of these injuries sustained in this accident.”

f)      The
plaintiff should be able to continue working in his job of installing heat
pumps and ventilation systems and she does not expect his neck injuries to
affect the plaintiff’s ability to be able to work in his job.

g)    Other than lying
on his back and lifting his head (when working underneath old cars), the
plaintiff “should be able to continue with all other activities in terms of
regular day-to-day activities with no significant limitations.”

h)    The plaintiff
should continue with the stretching exercises that he was taught by the
physiotherapist, on a daily basis.

[48]        
In her report dated May 5, 2009, Dr. MacKean confirmed
her opinion that the degenerative changes in the plaintiff’s cervical spine did
not become symptomatic as a result of the motor vehicle accident of
June 26, 2006, and did not make him more susceptible to injury of the
kind he sustained in that accident.

[49]        
In cross examination at trial, Dr. MacKean said that the plaintiff
made no complaint of pain at any time during her examination of him. She testified
that there was no pain and no tenderness associated with the “muscular
tightness” that she detected in the cervical para-spinal muscles, and said that
she did not know what caused this tightness.

[50]        
When asked to explain her opinion that the plaintiff had “grade two
whiplash associated disorder,” Dr. MacKean said that this was an injury to
the soft tissues (muscles and ligaments) of the cervical spine. She had read
the clinical records and she had relied on the findings of the various doctors
in reasoning to her diagnosis.

[51]        
Dr. MacKean stated that she had made no significant findings on her
examination of the plaintiff. She said that for the most part, the plaintiff
was recovered from his injury by the time she saw him and that his injury was
almost completely resolved by the time of her examination, but with occasional flare-ups.

[52]        
Dr. MacKean testified that Mr. Anderson had not told her that
he had been symptom free for periods as long as three months, but said that if
that were true, it would not surprise her. She also said that the plaintiff had
not told her that he had “pulled his neck.”

[53]        
Dr. MacKean agreed there was a possibility that the plaintiff’s
injury in the previous accident of October 20, 2003, could be partly
responsible for the plaintiff’s apparent ongoing symptoms. But she did not
accept that theory. She also allowed the possibility that, if the plaintiff had
“pulled his neck” muscles as an independent event, unrelated to the injury from
the June 26, 2006 accident, then that could be a partial cause of his
persistent symptoms. Dr. MacKean also agreed with the suggestion that any
man in his 50s doing the job that the plaintiff has been doing, could have
occasional problems with his neck as a result of the aging process alone.

[54]        
Dr. MacKean was re-examined at some length, but in my view, her
evidence did not affect the opinions I have described. She did say that the
plaintiff’s failure to continue with the stretching exercises was not a serious
matter because he had a full range of motion in his neck.

The Evidence in the Clinical Records

[55]        
The plaintiff first visited a doctor on June 29, 2006, in
connection with the accident that had occurred three days earlier. He made
eight further visits to doctors up to December 31, 2008, with respect
to complaints of neck pain. I will summarize each of these visits, giving only
the essence of Mr. Anderson’s complaints and the findings made by the
doctors.

[56]        
On June 29, 2006, the plaintiff visited Dr. Dunstan-Adams.
He complained of headache and fatigue at the end of the day. The doctor found
that he had a full range of motion in the neck and there was no vertebral
tenderness in the cervical spine area on palpation.

[57]        
On August 5, 2006, the plaintiff visited Dr. Bland. He
complained of the onset of sudden neck pain while having a shower the previous
day. The doctor found that he had decreased range of motion in turning his head
to the left.

[58]        
On November 16, 2006, the plaintiff saw Dr. Meyer. He
complained of on-and-off neck pain. The doctor found decreased range of motion,
tenderness at the right side of the neck and muscle spasm. Dr. Meyer
recommended physiotherapy (which was taken between December 4, 2006,
and January 4, 2007).

[59]        
On September 6, 2007, the plaintiff visited Dr. Janssen. He
complained of pain in his neck and upper back. The doctor found tenderness in
the right trapezius, some spasm and decreased range of motion. He appears to
have recommended massage.

[60]        
On November 16, 2007, the plaintiff visited Dr. Roe. He
complained of intermittent stiff neck. No findings were noted (there may not
have been an examination).

[61]        
On April 13, 2008, the plaintiff visited Dr. Olivier. He
complained of neck pain. The doctor found normal range of motion but ordered an
x-ray of the cervical spine (this was done on April 15, 2008).

[62]        
On April 28, 2008, the plaintiff visited Dr. Roe. He
complained of neck pain and said that it “comes and goes.”  No findings are
noted.

[63]        
On November 17, 2008, the plaintiff visited Dr. Roe. He
complained of neck pain. The doctor found that he had good range of motion and
that there was no local tenderness. 

[64]        
On December 31, 2008, the plaintiff visited Dr. Roe. He
complained that his neck was sore and stiff at the end of the day. He said he
was okay when he wakes up, and usually had no problems through the day, and
that he uses Advil “when bad.”  The plaintiff said that his neck problem “does
not keep him from doing anything and has not stopped doing anything he used to
do.”  The doctor found that he had good range of motion and that there was no
local tenderness.

Credibility

[65]        
Counsel for the defendants challenged the plaintiff on his evidence as
to the force of impact and with respect to the reasons why he sought and
obtained new employment in the summer of 2009. The defendants do not accept the
plaintiff’s evidence that he continues to suffer intermittent neck pain and
stiffness as a result of the injury he sustained in the motor vehicle accident
of June 26, 2006. But the challenge to this evidence did not involve
an attack on the honesty of the plaintiff. I understood their dispute with the
plaintiff to be centred on the issue of causation. The defendants seemed to
accept that the plaintiff gets occasional flare-ups of neck soreness and
stiffness and that he believes these episodes are caused by the injury he
sustained in the June 26, 2006, accident. They imply that the
plaintiff is mistaken in this belief.

[66]        
The credibility of Jeff Mercer was challenged by defence counsel on the
issues of the force of impact and the damage to the van. The plaintiff did not
accept Daniel Cejka’s evidence relating to the force of impact, but since his
evidence was given by reading in parts of his discovery evidence (under a
previous court order), there was no opportunity to impeach his credibility.

[67]        
There was no challenge to the honesty of Barbara Anderson, Dr. Roe
or Dr. MacKean. The defence does question the reliability of some of the
evidence given by these witnesses. In general, I accept the evidence of these
witnesses, except where otherwise stated or where I have made a finding
inconsistent with some part of their testimony.

The Credibility of the Plaintiff

[68]        
As I see it, the plaintiff made no attempt to exaggerate the neck pain
and stiffness that he described, or the effects of those symptoms upon him. Indeed,
the defendants relied on many parts of the plaintiff’s evidence. But I was not
impressed with the plaintiff’s attempt to down play the large increase in pay
as being a significant reason why he changed jobs in the summer of 2009.

[69]        
In addition, the plaintiff made two previous statements about the force
of impact that were inconsistent with his trial testimony on that issue.

[70]        
I will approach the plaintiff’s evidence with some caution. One of the main
issues in this case is causation. The medical evidence will have considerable
importance on this issue. But the reliability of the plaintiff’s evidence is a
key factor with respect to all issues.

The Credibility of Jeff Mercer

[71]        
Jeff Mercer effectively admitted that he was biased against ICBC. I
think there is a significant risk that he exaggerated the force of the rear-end
impact, and the extent of the damage to the van.

Findings of Fact

What was the degree of severity of the plaintiff’s injury?

— The Force of Impact

[72]        
The defendants do not allege that the force of impact was not capable of
causing any injury to the plaintiff. But they do say that the force of impact
was minor, and that this fact is relevant to the issue of the severity of the
injury sustained by the plaintiff. I agree with that submission. See Laxdal
v. Robbins 2009 BCSC 1074 (Gerow J.) at paragraphs 16 – 17; Robbie v.
King 2003 BCSC 1453 (Ballance J.) at paragraph. 35.

[73]        
I find that the bottom of the front bumper of the Toyota rode up over
the top of the rear bumper of the van, causing a groove in the van’s bumper and
a dent near the bottom of the two rear doors of the van. The plaintiff used the
rear doors without difficulty thereafter, until the van was repaired. There is
no evidence as to the cost of repair. I find that the damage to the van was
minimal.

[74]        
I find that the impact caused the van to rock back and forth, but I am
not satisfied that the van was pushed forward by the impact. I find that this
was a low-velocity accident in which the force of impact was minor.

[75]        
I find that the plaintiff sustained an injury to the soft tissues of his
neck and cervical spine which was mild in degree. I make this finding on the
whole of the evidence.

Has the plaintiff recovered from his injury, and if so, when did he achieve
substantial recovery?

[76]        
I find that, by the fall of 2006, the plaintiff’s symptoms had become
intermittent and that by the fall of 2007, his episodes of neck soreness and
stiffness had become even less frequent. From the evidence given by Dr. Roe
and Dr. MacKean, I infer that muscle spasm, decreased range of motion and
tenderness on palpation are objective findings which confirm a patient’s
complaint of pain. There is no evidence that any such objective findings were
made after the fall of 2007, and I note that the plaintiff had normal range of
motion in his neck on his examination by Dr. Olivier on
April 13, 2008. On Dr. Roe’s examination on
November 17, 2008, he found that the plaintiff had “good range of
motion” and “no local tenderness.”  I find that the plaintiff had substantially
recovered from the injury he sustained in the motor vehicle accident of June 26, 2006,
by the time he saw Dr. MacKean on April 14, 2009.

Has the plaintiff made a full recovery from his injury, and if not, when
will full recovery be achieved?

[77]        
The question then becomes whether the plaintiff is still suffering
intermittent episodes of neck stiffness as he claims, and if so, whether these
episodes are causally connected to the accident of June 2006.

[78]        
The case law reminds trial judges that they should be cautious about
accepting a plaintiff’s claims of long-term pain and disability, where there is
little or no objective evidence which confirms his or her trial testimony on
these issues. In this case, the last objective findings were made on
September 6, 2007. The findings of the doctors were normal on
April 13, 2008, November 17, 2008, December 31, 2008,
and April 14, 2009. And the plaintiff changed jobs in
August 2009, and his new job was much easier on his neck.

[79]        
I do not accept the defence submission that the two occasions when the
plaintiff “pulled his neck” were events that were separate and independent from
the motor vehicle accident. In my opinion, they were causally related. Nor do I
accept Mr. Dreyer’s submission that the plaintiff’s injury from the
October 20, 2003, accident could be a partial cause of the
plaintiff’s ongoing symptoms. I find that the plaintiff, up to about the end of
2009, has occasionally experienced intermittent episodes of neck stiffness,
which have been few and far between, which have never been disabling, but which
have been caused, in part, by the injury he sustained on
June 26, 2006.

[80]        
For the most part, I have accepted the opinions of Dr. Roe and Dr. MacKean.
But their opinions to the effect that the plaintiff would continue to
experience intermittent symptoms for an indefinite time in the future that are
causally related to his injury on June 26, 2006, depend heavily on
the recorded findings of the other doctors, and on their own acceptance of the
plaintiff’s subjective complaints. Dr. Roe first saw the plaintiff on
November 16, 2007, in relation to this accident. Dr. MacKean saw
the plaintiff only once, on April 14, 2009, by which time he had
substantially recovered. Neither doctor made any objective finding, and neither
of them knew that the plaintiff had a number of fairly lengthy periods when he
was symptom-free, one of which was three months in length. The plaintiff was
still doing a considerable amount of crawl-space work when he saw Dr. MacKean,
yet he made only minimal complaint to her about work difficulties.

[81]        
On all of the evidence, I find that the plaintiff had fully recovered
from his injury by the time of trial. Any ongoing problems that he may have in
the future will not be causally connected to the accident of June 2006.

What amount of damages should be awarded for non-pecuniary loss?

[82]        
The factors that a trial judge should consider in assessing damages for
non-pecuniary loss are well known and are set out in Stapley v. Hejslet
2006 BCCA 34, at paragraph 46. Counsel for the plaintiff referred me to these
factors and to a number of previously-decided cases in support of his
submission that damages should be awarded in the range of $40,000 to $50,000. But
to a significant extent, this submission rests on the assumption that the
plaintiff will continue to suffer the effects of his injury for an indefinite
period of time into the future. I have rejected that submission.

[83]        
Counsel for the defendants has cited a group of cases which tend to
support his position that the range of damages in the present case is $15,000
to $25,000.

[84]        
In my opinion, previously-decided cases, even where there are some
similarities with the case at bar, can only assist in establishing a general
range of damages which may apply to a particular case. This is because no two
plaintiffs will ever be the same in age, previous state of strength and health,
occupation and other activities. Moreover, the injuries (or combination of
injuries) sustained by one plaintiff will never be the same as those incurred
by another, in kind or severity. Additionally, the reaction of any two persons
to the pain of a similar injury or to particular treatments will rarely if ever
be the same. Other differentiating features may be the apparent length of the
recovery period and, if the plaintiff has not recovered, the kind and extent of
residual effects remaining from the injury at the time of trial, and whether
any of the effects will be permanent.

[85]        
I have reviewed the cases cited by counsel, in light of the facts which
I have found. Due to significant differences, I see no useful purpose in
discussing them. There is no legal formula which can be used to measure the
amount of pain and suffering and loss of enjoyment of life that a plaintiff has
experienced as a result of an injury caused by the defendant. In my opinion,
the range of damages for non-pecuniary loss in this case is the range suggested
by Mr. Dreyer, namely, $15,000 to $25,000.

[86]        
The pain suffered by the plaintiff was never serious. He himself
consistently described its severity as being one or two on a scale of ten. Within
a few months after the accident, the symptoms became intermittent. Eventually,
they became few and far between. The plaintiff was never disabled by the pain,
to any significant extent. I must be careful not to penalize the plaintiff for
being stoical in the face of pain. But I do not find that this is the case here.
I award $20,000 for this head of damages.

Should any award of damages be made for impairment of future earning
capacity, and if so, in what amount?

[87]        
In order to justify an award of damages for loss of future earning
capacity, a plaintiff must prove “that there is a real and substantial possibility
of a future event leading to an income loss.”  The fact that a plaintiff has
returned to his or her usual employment after the injury does not by itself
prevent proof of a substantial possibility of a future loss of income. See Perren
v. Lalari 2010 BCCA 140 at paragraph 32. Of course, a plaintiff’s potential
loss of income in the future must be causally related to the injury that was
caused by the defendant.

[88]        
Counsel for the plaintiff argued, as I understood him, that the
potential “future event” would be the necessity for the plaintiff to return to
doing frequent heat pump installations in the crawl spaces of private
residences, which would cause him neck pain requiring him to take time off
work.

[89]        
Even if I had found that the plaintiff would continue to experience causally-connected
episodes of neck stiffness and pain in the future, I do not think the evidence
would support a finding that there is a real and substantial possibility that
such intermittent episodes would cause a loss of income in the future. However,
that question does not arise, because I have found that the plaintiff had
recovered from the effects of his injury by the time of trial.

[90]        
At trial, counsel for the plaintiff sought to introduce into evidence
the report of Darren Benning, economist, dated February 10, 2010. Mr. Klear
submitted that the expert evidence would provide a basis for the arithmetic
calculation of the amount that should be awarded to the plaintiff for loss of
future earning capacity, should entitlement to such an award be proved. Mr. Dreyer
objected to the admissibility of this report, on the ground that it was
irrelevant. It was implicit in his argument that the evidence presented in this
case could never justify the use of the “arithmetic” approach in calculating
any award that might be made for loss of future earning capacity; and that if
an assessment of damages was necessary, it could only be done on the “capital
asset” approach.

[91]        
I reserved my decision on the issue of admissibility of the economist’s
report which was marked “A” for identification.

[92]        
On further consideration, I agree with defence counsel’s submission. In
my opinion, the “arithmetical” approach could be of no use to the court in
quantifying damages for loss of future earning capacity, in the circumstances
of this case. Had it been necessary to quantify damages under this head, the
economist’s report could not be of assistance to the court, and so would not be
admissible on the test in R. v. Mohan [1994] 2 S.C.R. 9.

[93]        
The plaintiff’s claim for damages for loss of future earning capacity is
dismissed.

What award should be made for special damages?

[94]        
The plaintiff claims special damages of $873.09, for the following
expenses:

[95]        
At one point, counsel for the defendants seemed to dispute only the
expense claimed for the pillows. At a later time in trial, counsel appeared to
take the position that no award should be made for special damages. The latter
position rested on the argument that the plaintiff’s “pulled neck” incidents
were not connected with the motor vehicle accident and that all of the expenses
claimed by the plaintiff were incurred as a result of the two occasions on
which he pulled his neck. I have rejected that submission.

[96]        
The plaintiff testified that he incurred all of the expenses claimed and
said, in effect, that they were made necessary by the effects of his injury. He
testified that he purchased the expensive pillows on his own, in an attempt to
alleviate his sleeping problems. His wife confirmed that the pillows have
helped the plaintiff to sleep better.

[97]        
I find that the prescription medicine, physiotherapy and massage therapy
are all supported by the medical evidence. I accept the plaintiff’s evidence
about the pillows, and I find that this expense was reasonable. The evidence as
to the expense claimed for mileage was somewhat confusing to me but I am
satisfied that this expense was reasonable and necessary. I award special
damages in the amount claimed, namely, $873.09.

Summary

[98]        
To summarize, I award damages to the plaintiff as follows:

Costs

[99]        
Unless there are other relevant facts of which I am unaware, the Rules
of Court that are relevant to the issue of costs are Rules 57(10) and 66(29). The
plaintiff has recovered a sum that is within the jurisdiction of the Provincial
Court, and so there may be an issue whether “there was sufficient reason for
bringing the proceeding in the Supreme Court” when the action was commenced on
April 11, 2008. The parties may be able to agree on costs. If not, I
will have to hear submissions before deciding this issue. A date may be
arranged with the Trial Scheduling Manager. Alternatively, if counsel agree,
submissions on costs may be made in writing. If there is such an agreement,
then counsel for the plaintiff shall file and deliver his submissions within
fourteen days after the date of these reasons. Counsel for the defendants will
file and deliver his submissions within seven days thereafter, and counsel for
the plaintiff will have a further seven days to reply.

 ”Mr. Justice
Halfyard”