IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100901

Docket: 44582

Registry:
Vernon

Between:

Gisele Gendron

Plaintiff

And

Lynda Dianne
Moffat

Defendant

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

Introduction

[1]            
The plaintiff, who is now 58 years of age, is the owner/operator of a
janitorial business and was involved in a motor vehicle accident on April 28,
2008. Her motor vehicle was struck by the defendant’s vehicle, hitting the left
front side of the plaintiff’s car. Liability is admitted. The plaintiff is
claiming non-pecuniary damages, as well as damages for past wage loss, loss of
future earning capacity including loss of housekeeping capacity, cost of future
care and special damages.

Medical Evidence

[2]            
Apart from some neck stiffness, the plaintiff felt relatively unharmed immediately
following the accident and therefore did not seek medical treatment. However, the
following morning she woke up with severe neck stiffness; upper back and
shoulder pain; and a headache. She attended her family doctor, where she
complained of severe neck stiffness, interscalpular pain, bilateral shoulder
pain, and a dull headache. The doctor also found there was tenderness on her
right quadratus lumborum muscle and both lower lumbar paraspinal muscle areas. He
summarized her injuries that were directly attributable to the motor vehicle
accident, the day after that accident, as follows:

1.       cervical strain, grade
2

2.       thoracic strain, grade
2

3.       lumbar strain, grade 2

4.       right shoulder strain,
grade 2

5.       left shoulder and arm
contusions.

[3]            
She was given Ibuprofen for her pain and referred to physiotherapy.

[4]            
On May 2, 2008, her neck pain had worsened and she was advised to
discontinue Ibuprofen because of stomach upset. She was told not to work but
advised her doctor that she had no option. She was prescribed acetaminophen
with codeine to use for pain control. X-rays of her cervical spine were also
taken on that date.

[5]            
On July 18, 2008, she had improved a bit but reported right sided shoulder
and lower back pain.

[6]            
On September 15, 2008, the plaintiff underwent an MRI which showed mild
to moderate changes in her cervical spine.

[7]            
On September 29, 2008, there was continued severe pain in her upper
shoulder and neck area and ongoing bilateral low back pain.

[8]            
On November 25, 2008, the plaintiff reported headaches and her present
work capacity was “60%” of her pre-MVA level.

[9]            
She attended physiotherapy from May 6, 2008 to December 18, 2008, and
then recommenced physiotherapy on May 27, 2009, on a weekly basis, up to June
22, 2010.

[10]        
On January 29, 2009, she reported being unable to work more than three
hours per day due to her severe back pain and right upper shoulder pain. The
back pain was most severe in her lower thoracic and upper lumbar paraspinal
area and her back pain increased with shoulder elevation and attempts at
extending her thoracolumbar spine. She also quit attending the gym because it
aggravated her back pain. It was recommended that she attempt “aqua exercises”
and was prescribed Flexeril and antihistamine sedatives to improve her sleep
quality. Without telling her doctor, the plaintiff did not take her medication
and has never looked into the aqua exercise program. She said she does not like
being in the water.

[11]        
On August 5, 2009, she told the doctor that she was “definitely a lot
better”; that the interscalpular and neck pain were less severe; and her work
endurance was slowly increasing. She said that her low back pain was presently
“fine”.

[12]        
On December 17, 2009, she told the doctor that she was working only
three or four hours a day due to ongoing neck and upper shoulder pain
predominately affecting her right side. Her neck and mid-thoracic paraspinal
back pain had flared up when she attempted to shovel snow at a job site on
December 13, 2009.

[13]        
On February 9, 2010, she attended her doctor’s office and requested a
referral to physiotherapy due to a flare up of her thoracic and upper lumbar
back pain over the preceding two weeks.

[14]        
She was last seen by the doctor on April 15, 2010, when she complained
that her area of maximal discomfort remained within her mid to lower central
thoracic paraspinal region and that her cervical and shoulder areas, predominantly
the right side, were relatively less problematic. She said she was working
three hours per day, six days per week.

[15]        
The doctor summarized her condition as follows:

Ms. Gendron sustained grade
2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to
her right shoulder when she was T-boned in an intersection by a vehicle that
had run through a red light. The impact imparted both forward and rotational
acceleration forces through Ms. Gendron, and the subsequent symptom
pattern and chronology of injury were consistent with the mechanism and
severity of injury. Ms. Gendron has consistently demonstrated a high level
of motivation to recover from her injuries, and has remained at work since her MVA
, albeit in a reduced capacity. [Emphasis added.]

[16]        
The last two sentences of that summary I had removed, as in my view, the
first sentence dealing with the impact of the accident and acceleration forces
were not within the expertise of the doctor and the comment about her high
level of motivation demonstrated that the doctor was acting more as an advocate
than as an independent professional.

[17]        
The doctor was also critical of Dr. T. O’Farell, an orthopaedic
surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s
report was “below the currently accepted standard for a specialist’s medical legal
report.”  Again, that sentence was removed on the basis that the family doctor
was more of an advocate than an independent professional and lacked the
expertise to make such a statement.

[18]        
Dr. O’Farell’s report, dated May 5, 2009, was filed and he gave
evidence at an examination for discovery. He noted that “she does not cooperate
at all with range of motion testing of the neck or strength testing”, but
agreed that that could have been because she was either tender and in pain or
guarded about her neck given the symptoms she had been through since the
accident.

[19]        
Dr. O’Farell was of the view that “most of her neck pain is likely
due to her degenerative disc disease”, which he found from her x-rays of May 2,
2008. He noted that the “C-spine shows fairly significant degenerative disc
disease at C5-6 C6-7 and also at C4-5”. He was of the view that she would not
have any significant long-term sequela secondary to the accident, and the
appropriate time frame for recovery from the accident would have been
approximately four months.

[20]        
On March 24, 2010, in a follow-up report, Dr. O’Farell said, “[w]ith
regards to the neck pain being due to arthritis in her spine, I think that her
symptoms may have been present before, but certainly would have been present
within a short time of the time of her accident, that is a year or less.”

[21]        
The doctor, however, was of the opinion that Dr. O’Farell’s view
that the cervical symptoms were likely due to pre-existing degenerative disc
disease of the cervical spine, is a “speculative statement, and he does not comment
on the contributions of myofascial and neurogenic factors to her symptoms.”

[22]        
I am of the view that the plaintiff’s family physician, while a highly
qualified doctor, is more of an advocate than an independent medical specialist
and that it is almost impossible to be objective and an advocate at the same
time. I therefore prefer the evidence of Dr. O’Farell that her neck pain
is due to arthritis in her spine.

[23]        
With respect to the mid-back pain, although the doctor’s initial notes
of April 29, 2008, do not contain reference to mid-back pain, the diagram that
he included in his notes does show that there is tenderness in one area in the
left mid-back and a larger area on the right mid-back.

[24]        
At trial the plaintiff said that her neck had slightly improved but
there was a spot that was to the left of her spine in the mid-back area that
was worse. She maintains that the “spot” was there since the day of the
accident but was not initially hurting, but rather was “like someone was
pushing on it”. After the snow shovelling incident on December 13, 2009, her
back got worse.

[25]        
The physiotherapist’s report, which covered the period of November 24,
2008 to December 18, 2008, refers to “sharp pain from the middle of her back
that occurs with certain movements and with pressure on this area.”  It is
difficult however, to determine whether or not this was based solely on
self-reporting by the plaintiff but there does not appear to be anything in the
physiotherapist’s finding or that of her doctor, that refers to this “spot”
that is to the left of her spine in the mid-back area.

[26]        
The reference to the “spot” on the left side mid-back of the plaintiff’s
spine is not present in any of the reports and the number of references to her
mid-back area, which would be the upper lumbar or lower thoracic areas, are
sparse. The mid-back area did not appear to be of any significant consequences after
January 29, 2009, and was reported to be “fine” on August 5, 2009, with no
further complaints until the snow shovelling incident of December 13, 2009, and
therefore I am satisfied that her mid-back problems that presently exist were
not caused by the motor vehicle accident, but by the shovelling of snow on
December 13, 2009.

[27]        
In conclusion, I find that the injuries sustained by the plaintiff in
the motor vehicle accident for which the defendant is liable, have
substantially resolved.

The Impact on the Plaintiff’s Business

[28]        
Prior to the accident, the plaintiff was an independent, hard working
individual that was physically fit. Her job as a janitor was demanding,
requiring lifting, bending and shovelling snow. She worked 50 to 55 hours per week,
over seven days a week. Following the accident, she says she had to cut down
her physical work by half and that after two and a half to three hours of work,
she has pain and is stiff.

[29]        
Beginning on April 29, 2008, the plaintiff hired extra help for work
that she could not do, and as a result had to pay extra wages and claims those
as special damages. In my view that claim is legitimate.

[30]        
In the summer of 2008, the plaintiff said that she let go of six
contracts for cleaning between August and September because she could not do
the work. However, practically all those contracts were contracts that her
subcontractors worked on and all she did was organize the work and the supplies
necessary for the business. In any event, practically all of those jobs
and contracts came back to the plaintiff’s business within a few months.

[31]        
In 2007, the plaintiff purchased a home and she wrote off approximately 35%
of her taxes, insurance, mortgage and electricity, but then listed the home six
weeks after the accident because she said she could not afford to keep the home
as she was unable to work full-time. However, in 2007, when she purchased the
home, she only had a net income before adjustments for business use of house of
$37,443, yet her monthly mortgage payments were $1,905 per month for a total of
$22,860 annually. Her net income in 2008, however, increased to $43,787, which
would indicate that she was in a much better position to make mortgage payments
after the accident than before.

[32]        
I have attached a schedule of the business revenue expenses for 2001 to 2009.
The plaintiff’s complaint is that she had fewer write-offs after she sold her
home and therefore she made less money. She also complained that after the
accident she had to pay too much in taxes. The fact of the matter is that in
2007, the business had gross revenue of $96,781 and a net income after business
use of home expenses of $31,919. In 2008, the business had gross revenue of
$88,967, and a net income after business use expenses of $37,215 and in 2009,
the gross revenue was $89,660 and the net income after business use expenses
was $44,131.

[33]        
The plaintiff says that the main reason for the increase in net income
was because her expenses from previous years were going down. For example, the
capital cost allowance and interest payments on her bank loan decreased from
2007 to 2009 in the amount of $5,442. However, net income after business use of
the home increased between 2007 and 2009 by $12,212. The major difference in
the expenses was the decrease in the cost of the subcontractors. The cost of
the subcontractors from 2007 to 2009, decreased from $29,073 to $21,009, or a
decrease of $7,964. Therefore, the profitability of the plaintiff’s business,
which increased from 2007 to 2009, was mainly attributable to the decrease and
use of subcontractors that went from 30% to 23% of gross revenue. The mystery
is how could the subcontractors’ costs decrease by that amount when the
plaintiff claims, and also reported to her physician, that she was only working
about 50% of the time after the accident?

The Plaintiff’s Credibility

[34]        
At trial the plaintiff gave evidence that she worked alone on the cleaning
contract referred to as the “New Railroad Station”, but at the examination for
discovery she said that she did not work at the New Railroad Station and that Twyla
Harsch did the work.

[35]        
At trial she said that she did some work on the Kamkal building but at
examination for discovery she denied doing any work on that contract.

[36]        
I found that the plaintiff also exaggerated or embellished parts of her
evidence. When she stated that she “would do anything to get better”, that
statement is not accurate. She did not take the medication prescribed by the
doctors and, save and except for the first occasion when she told the doctor
that she was not taking the medication because of stomach upset. She has not
pursued the aqua exercises that were recommended and did not tell the doctor
that she failed to do so because she was afraid of the water. Furthermore, it
was recommended that she take Tai Chi but she has never even looked at the
costs of that program, saying that she may do this in the fall of this year.

[37]        
When she stated that she worked 50 to 55 hours a week prior to the motor
vehicle accident, it was pointed out that when all the maximum possible daily
hours were tabulated, she only worked 48.5 hours prior to the accident.

[38]        
It is unbelievable that the plaintiff would, in the summer of 2008,
voluntarily give up some contracts where she, in fact, did not have to do the
physical work.

[39]        
The plaintiff’s complaints that she makes less money after the accident
because she is paying more taxes and cannot write off her home as a business
expense, are inconsistent with the evidence. She has to pay more taxes for the
simple reason that she is making more money because some of her expenses,
including her subcontracting expenses, are less. 

[40]        
If in fact the plaintiff is now only working half-time, as her family
physician believes, then she would have to be paying someone else to do the
work. One of her employees, Megan Dakin, gave evidence about the physical
difficulties the plaintiff is having at work. Ms. Dakin testified that she
makes $14 an hour. Assuming someone worked for $14/hour for 25 hours a week,
that would translate into $17,500 based on 50 weeks of work. That, one would
think, would increase the amount of the subcontractor’s expense. Instead, it
has been noted the subcontractor’s expense went down from 2007 to 2009 by 7% or
$7,964. The only conclusion I can reach is that the subcontractor’s expense
decreased because the plaintiff has been doing more work after the accident
than she did prior to the accident.

[41]        
After considering and weighing all of the plaintiff’s evidence, I do not
find that she is a credible witness.

Non-Pecuniary Damages

[42]        
Following the accident, not only has the plaintiff had to cut down her
physical work by half and thus reduce her business, the plaintiff alleges that
as a result of her injuries she has suffered a loss of enjoyment of life. She
was used to walking long distances, hiking, biking, dancing, and travelling. Now,
driving in a car for any long distance, if it is a twisty road, is painful and
she does not walk for more than 100 feet before experiencing pain. She can only
ride approximately one mile on her bike before experiencing a pulling in her
right shoulder and neck. She also has difficulty sitting for more than two
hours and pain develops after reading for 25 to 30 minutes. She also submits
that she had to sell her home because of the accident. Finally, her partner has
testified that she is not her same bouncy and energetic self.

[43]        
The plaintiff says that the appropriate range of damages is between
$50,000 and $75,000 referring to Deiter v. Briggs, 2009 BCSC 914; Shearsmith
v. Houdek, 2008 BCSC 997; Gregory v. Insurance Corp. of British Columbia,
2010 BCSC 352; Lamont v. Stead, 2010 BCSC 432; Brock v. King,
2009 BCSC 1179; Dutchak v. Fowler, 2010 BCSC 128; and Booth v.
Gartner, 2010 BCSC 471.

[44]        
The defendant says the appropriate compensation for the plaintiff’s
damages is $25,000 and refers to Asere v. Whelton and Transportation Lease
Systems Inc., 2006 BCSC 1617; and Rana v. Boparai, 2007 BCSC 1182 [Rana].
In the Rana case, a 50-year-old plaintiff suffered a lumbar strain and
soft tissue injuries to her cervical spine. The lower back symptoms resolved
within 18 months of the accident and her neck pain and restriction of motion
gradually improved. She required assistance at work with the heavier aspects of
her job. Non-pecuniary damages were awarded in the amount of $20,000.

[45]        
Here, I am satisfied that because of my findings that the plaintiff’s
back problem had basically resolved by December 13, 2009; because of the
arthritis in the plaintiff’s spine that was either present before the accident
or within a short time after the accident, as found by Dr. O’Farell; and considering
the age of the plaintiff and the effect of the injuries the defendant is liable
for, I assess non-pecuniary damages at $25,000.

Past Loss of Income

[46]        
The plaintiff claims $15,000 for past loss of income. The plaintiff
asserts that, while the net business income has increased, the business’ gross
revenues have decreased as a result of the fact that the plaintiff had to
reduce the number of contracts she can take since the accident. The plaintiff
submits that the income tax returns show a trend, whereby her business was
growing and her expenses were declining, and therefore it would have continued
to grow but for the accident and the reduced contracts.

[47]        
The plaintiff points to the Court of Appeal’s decision in Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30 [Rowe], where
the Court emphasized that a claim for past loss of income is actually a claim
for loss of earning capacity; a claim for the loss of the value of the work
that the plaintiff would have performed but for the injury. Evidence of the
value of the work may take many forms and the loss may be framed and measured
in different ways: Rowe, at para. 31.

[48]        
However, the defendant notes that the Court in Rowe, at para. 21,
agreed with the approach taken by the trial judge in recognizing that there was
a “real loss of a flow of income”. The Court quoted the trial judgement, at para. 13,
including the trial judge’s finding that “[t]he fact remains that there was a
real financial loss to the company and hence to Mr. Rowe.”  There is no
financial loss in the present case.

[49]        
Since the plaintiff’s net income has increased since the accident there
is no loss and I therefore make no award.

Loss of Future Income / Diminished Capacity

[50]        
As set out in Perren v. Lalari, 2010 BCCA 140 at para. 32, the
plaintiff always bears the onus of establishing that there is a “real and
substantial possibility of a future event leading to an income loss”.

[51]        
The plaintiff in this case has not discharged that burden of proof. There
is nothing in the evidence before me that would establish that there is a real
substantial possibility of a future income loss. The plaintiff has no
intention of changing her occupation and there is no evidence and no real
possibility that there would be an actual loss arising in the future. Indeed,
the plaintiff’s business has prospered somewhat since the accident. I therefore
decline to make an award under this head of damages.

Loss of Housekeeping Capacity

[52]        
The plaintiff is also seeking an award for loss of housekeeping capacity:
Paller v. Paller, 2004 BCSC 977 at paras. 57-59. When the plaintiff
owned her home she took care of the housekeeping and yard work. Because of the
accident, the plaintiff is no longer able to do such tasks. While the plaintiff
sold her home and currently lives in rental accommodations, which she admits
does not require a lot of housework, she submits that there is a real
possibility she will own a home again and will have to incur costs for
assistance around her home. The plaintiff is therefore seeking $10,000 under
this head of damages.

[53]        
As noted above, the plaintiff’s back problems had largely resolved by
December 2009, and her current difficulties are attributable to her arthritis
and therefore were not caused by the accident. As a result, any assistance that
she requires going forward is not the defendant’s liability. Furthermore, I am
not satisfied that she has established that she will require assistance in
housekeeping. Since the accident the plaintiff’s janitorial business has
flourished and I do not accept that she is capable of performing janitorial
duties but cannot do her own housekeeping.

Cost of Future Care

[54]        
The plaintiff is seeking $10,600 for the cost of her future care,
specifically for massage therapy, physiotherapy and Aquasize, which she submits
are reasonable expenses given the medical evidence.

[55]        
For the same reasons discussed under loss of housekeeping capacity, and
in view of my findings of credibility and the medical evidence that I have
accepted, there does not seem to be any basis to award costs of future care.

Special Damages

[56]        
The defendant has agreed to special damages in the amount of $2,143.95. As
already indicated, the plaintiff is entitled to special damages for the extra
workers she had to hire immediately after the accident, and this has been
accounted for in the agreed special damages. I am satisfied that the
plaintiff’s physiotherapy costs up until December 13, 2009, were properly
incurred, however the plaintiff is seeking reimbursement for physiotherapy
charges she incurred in 2010. In light of my conclusion that her injuries were
resolved by December 2009, I decline to award the plaintiff’s physiotherapy
costs for 2010.

Conclusion

[57]        
In summary, the plaintiff is entitled to $25,000 for non-pecuniary
damages and $2,143.95 in special damages, plus interest pursuant to the Court
Order Interest Act, R.S.B.C. 1996, c. 79.

[58]        
The parties can speak to the matter of costs.

The Honourable Mr. Justice
F. W. Cole

SCHEDULE “A”