IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101026

Docket: S020671

Registry:
Vancouver

Between:

Gordon John Bakken

Plaintiff

And

Edward J. Goddard

Defendant

Before:
The Honourable Madam Justice Wedge

Reasons for Judgment

I.        INTRODUCTION

[1]            
Gordon Bakken was injured in a car accident in August 1997. Shortly
after the accident, he retained Edward Goddard as his solicitor to bring a
personal injury action on his behalf. Mr. Bakken entered into a contingent
fee contract (the “Contract”) with Mr. Goddard. The action was advanced to
trial in October 1999 and was heard by Koenigsberg J. Following the trial,
Koenigsberg J. awarded damages to Mr. Bakken in an amount slightly in
excess of $300,000.

[2]            
Mr. Bakken was not satisfied with
the result, but he did not appeal the judgment. In 2002, he brought this
action, alleging that Mr. Goddard did not properly represent him in the
personal injury action.

[3]            
Mr. Bakken’s central claim, as
described in the pleadings, was that Mr. Goddard suffered from a medical
condition which he failed to disclose in a timely way, and which interfered
with his ability to properly and effectively represent Mr. Bakken before
and during the trial. The alleged wrongs were framed in the pleadings as breach
of contract and breach of fiduciary duty. Expansively read, the pleadings also
disclose an allegation of solicitor’s negligence.

[4]            
For the reasons that follow, I have
dismissed Mr. Bakken’s action against Mr. Goddard.

II.       BACKGROUND

[5]            
At the time of the accident in August 1997, Mr. Bakken was employed
by the provincial government as a corrections officer. He had been so employed
for 16 years.

[6]            
Immediately following the accident, Mr. Bakken was taken to
hospital by ambulance. He was treated and released the same day. The emergency
physician treating Mr. Bakken diagnosed soft tissue injury to his neck and
back, and to a lesser extent, his knees.

[7]            
Liability was admitted by the defendant,
but the assessment of Mr. Bakken’s injuries was complicated by serious
injuries he had sustained in an accident as a youth, and by a history of
physical and psychological difficulties he experienced during his employment as
a corrections officer.

[8]            
Mr. Goddard marshalled a significant
amount of evidence on Mr. Bakken’s behalf, including medical records and
expert medical opinions, employment records, vocational assessments, and
actuarial evidence. The experts retained by Mr. Goddard were all
individuals who have testified frequently in this court and are widely
recognized as well-qualified to speak to the issues within their areas of
competence. The weight of their opinions was that Mr. Bakken suffered soft
tissue injuries which, rather than resolving over time, had resulted in ongoing
chronic pain. The medical consensus was that while Mr. Bakken would not be
able to work as a corrections officer, he would be able to return to a more
sedentary job following appropriate treatment and rehabilitation programs.

[9]            
Mr. Goddard also interviewed several
potential lay witnesses, including friends and coworkers of Mr. Bakken, in
anticipation of calling evidence from some of them at trial.

[10]        
Throughout the almost two years preceding
the trial, Mr. Goddard corresponded regularly with Mr. Bakken
concerning the issues arising in the litigation and its progress. As the
trial date approached, he advised Mr. Bakken both verbally and in writing
of the risks of trial, and provided recommendations concerning possible
settlement.

[11]        
In January 1999, Mr. Bakken told Mr. Goddard
that he wanted an MRI performed on his cervical and thoracic spine because Mr. Bakken
believed that he had suffered skeletal injuries in those areas as a result of
the accident. However, Mr. Bakken’s family physician of many years had not
recommended the procedure, nor did any of the medical professionals retained to
provide expert opinions. All of the medical professionals remained of the view
that Mr. Bakken suffered chronic pain syndrome as a result of the soft
tissue injuries, exacerbated by pre-existing psychological difficulties.

[12]        
Mr. Goddard told Mr. Bakken
that the question of whether to obtain an MRI was a medical decision, and not one
that legal counsel should make. No medical professional recommended that Mr. Bakken
be referred for an MRI.

[13]        
The action proceeded to trial on October
18, 1999, and concluded on October 27, 1999. Mr. Goddard filed expert
reports and called the experts to give evidence. Mr. Goddard also called
evidence from lay witnesses concerning Mr. Bakken’s level of functioning
at home and work before and after the accident.

[14]        
The trial judge advised the parties on
the final day of trial that she would give oral reasons on November 9, 1999. She
subsequently advised the parties that the date for oral reasons had been
rescheduled to November 22.

[15]        
On November 16, 1999, Mr. Bakken
obtained an MRI of his cervical and thoracic spine (neck and back) on his own
initiative. The resulting MRI report disclosed some degenerative spinal
changes, a small disc bulge in the thoracic spine, and a moderate disc
herniation in the cervical spine.

[16]        
Mr. Bakken was of the view that the
MRI findings established that he had sustained a skeletal injury in the
accident, which had persisted since the accident and which rendered him unable
to obtain gainful employment. Accordingly, Mr. Bakken instructed Mr. Goddard
to apply to the trial judge to adjourn the giving of her reasons. Mr. Goddard
complied with those instructions and appeared before Koenigsberg J. on November
22, 1999. After hearing submissions, Koenigsberg J. agreed to adjourn the
proceedings to permit Mr. Bakken an opportunity to retain an orthopaedic
expert for the purpose of providing an opinion as to the effect of the MRI
findings on his current medical condition.

[17]        
Shortly after the November 22 appearance,
Mr. Goddard developed medical symptoms which prompted him to admit himself
to St. Paul’s Hospital on November 29, 1999. He remained in hospital until
December 10, 1999. Mr. Goddard took steps to have another lawyer, Fred
Hansford Q.C., retained for the duration of the proceedings.

[18]        
Mr. Bakken met with Mr. Hansford
and decided, as a result of the meeting, that he did not wish to have Mr. Hansford
represent him. Mr. Bakken also decided that he did not want any further assistance
from Mr. Goddard. In early March 2000, he retained Robert Crawford Q.C.
(now Mr. Justice Crawford). Mr. Bakken also obtained an expert
opinion from an orthopaedic surgeon, Dr. P.J. Kokan, concerning the
significance of the MRI findings.

[19]        
On March 20, 1999, Mr. Crawford
appeared before Koenigsberg J. and succeeded in persuading her (over the
strenuous objections of counsel for the defendant) to reopen Mr. Bakken’s
case to receive as evidence the MRI report and the opinion of Dr. Kokan.

III.       THE REASONS FOR JUDGMENT OF THE TRIAL JUDGE

[20]        
In her reasons for judgment given on July 19, 2000 (Bakken v. Young
et al, 2000 BCSC 1104), Koenigsberg J. summarized the factual
background to the litigation at paras. 2-4:

As a result of the motor vehicle accident of August 17, 1997,
Mr. Bakken suffered moderate soft tissue injury affecting his neck, back
and, to a minor extent, his knees. His spine was x-rayed, he was treated, and
released from the hospital on the same day. The x-rays showed no abnormalities
in the lumbar region but they showed kephosis of the cervical spine and
degeneration of the C5-6 disc.

Mr. Bakken, nearly two and one-half years later, still
complains of significant pain in his neck and back and, particularly, his low
back to the extent that he feels unable to return to work or engage in a
vigorous physical rehabilitation program.

For 16 years, up to the time of
the accident, Mr. Bakken worked as a corrections officer for the
provincial government. His employment record for that 16 year period reflects a
complicated medical and psychological history.

[21]        
The trial judge went on to describe the psychological problems Mr. Bakken
had encountered in the past (at paras. 11-13):

Mr. Bakken has undergone several psychological
assessments over the last several years. Some because of his problems with
stress on the job and some because of the claims he has made in relation to
this lawsuit. The assessments are generally consistent. Mr. Bakken is an
unusually anxious person with little personal insight into his problems. He
relies on alcohol and marijuana and large amounts of narcotic prescription
drugs to relieve his pain and anxiety. The psychological assessments all
indicate that Mr. Bakken has chronic pain and that a great deal of it is
non-organically caused.

As a result of the accident and Mr. Bakken’s ineffective
means of dealing with the discomfort from a minor to medium soft tissue injury,
Mr. Bakken has become severely deconditioned and moderately depressed. He
is angry with the medical-legal system which he perceives victimizes him.

At the time of the accident there
is no doubt that Mr. Bakken’s back was predisposed to injury. That is, any
relatively minor injury to his back or neck would likely take longer to heal
and have a greater chance of having flare-ups after healing took place. As
well, Mr. Bakken was, before the accident, a person with anxiety above the
norm and he experienced stress and stress-related illness in response to traumatic
events in his life whether physical or psychological or both. All psychological
assessments agree that Mr. Bakken’s psychologically based experience of
pain after the accident into the end of the first and on into the second year
after the accident were significantly contributed to by the accident.

[22]        
The trial judge framed the issue before her as follows at para. 14:

[T]he real question in this case
is at what point in time, if at all, does the accident cease being the
significant contributing factor and the other factors causing Mr. Bakken
continuing dysfunction take over as causes in law?

[23]        
At para. 17, the trial judge stated:

I find that the plaintiff’s
ongoing disability relates to his perception of pain which was at least
triggered by the accident and the significant pain he experienced as a result
of the accident. He either cannot or will not try a graduated return to work,
and he cannot or will not engage in an active exercise program. I find, in
other words, that Mr. Bakken is a thin skull plaintiff. He had
pre-existing physical fragilities both in relation to his musculo-skeletal
system and his digestive system. He also was psychologically fragile. He did
not and does not tolerate stress very well from any cause and he has a very low
tolerance for pain. His pre-existing problems were activated or made worse by
the accident.

[24]        
At para. 19 (after citing Athey v. Leonati, [1996] 3 S.C.R.
458, 140 D.L.R. (4th) 235, the leading decision concerning causation),
she stated:

However, there is no doubt on the
evidence that Mr. Bakken’s pre-existing fragilities were likely to
precipitate similar, if not the same, losses. That is, Mr. Bakken is prone
to injury and, if injured, very prone to develop debilitating pain symptoms
which he would have difficulty overcoming. He is likely to lose time at work
and or quit his job because of the stress related to it, particularly the
physical and psychological demands of it.

[25]        
At para. 22, the trial judge summarized her conclusions on
causation as follows:

Thus, on the basis of all of Mr. Bakken’s
medical and psychological history as well as his employment history it is my
assessment that if it were not for Mr. Bakken’s psychological problems he
would have recovered from the accident such that he could have returned to work
in February 2000. At the very least, he could have begun a graduated return to
work at that time. He was advised to do so by all persons treating him but he
refused. I also find that his refusal to do so was in large part due to his
psychological fragility which pre-existed the accident and which was very much
at play in preventing him from doing those things which would have increased
his chance of a successful recovery and return to work. However, the
psychological problems were contributed to by the accident; that is, the
accident and the actual pain and temporary disability triggered Mr. Bakken’s
pre-existing psychological disorder.

[26]        
The trial judge then turned to the evidence of the MRI and the opinion
of Dr. Kokan concerning the relevance of the MRI findings to Mr. Bakken’s
current medical condition. The trial judge set out, verbatim, both the MRI
report and the full extent of Dr. Kokan’s opinion. I only reproduce Dr. Kokan’s
conclusions here, which were as follows:

It is impossible to state whether the herniated cervical and
dorsal discs are the result of the motor vehicle accident …

[T]he accidental trauma of August 1997 could have aggravated
a pre-existing herniation of the C5-6 disc and it is impossible to assess
whether this aggravation is still in existence or not.

I would tend to believe that the accidental trauma of August
1997 aggravated a pre-existing herniated cervical disc; however, I cannot be
certain about this. There is also a possibility that the trauma caused
herniation of the disc.

In summary: I cannot say if the
MRI findings are related to the MVA in question. MRI findings could have
pre-existed, could have been aggravated by the accident or could have developed
after the MVA of August 1997. MRI findings do give more credence to his
symptoms.

[27]        
The trial judge then set out her conclusions concerning the significance
of the MRI report at paras. 28-29. In essence, she concluded that the MRI
added little to Mr. Bakken’s case:

I find that there is insufficient evidence to conclude that
the herniated disc was caused by the motor vehicle accident. However, there is
reason to believe that if the disc problem pre-existed the accident, which is
more likely, then the accident aggravated that herniation and the symptomotology
experienced by Mr. Bakken is more likely to have lasted longer and been
less amenable to treatment than if Mr. Bakken had not had the pre-existing
physical weakness in his spine.

The MRI adds little to the
picture which the whole of the physical and psychological evidence provided
before. I concluded, prior to receiving the MRI findings, that Mr. Bakken
had pre-existing fragilities which were aggravated by the accident. In
addition, in my view, in light of the absence of definitive findings on the MRI
of irremediable nerve root or other irritation caused by the herniations
observed – the prognosis remains the same.

[28]        
The trial judge concluded that had Mr. Bakken participated in a
comprehensive reconditioning and pain management program, and a graduated
return to work program (all of which had been recommended by the medical
experts), he would likely have been able to return to a more sedentary job that was available within the provincial
government.

[29]        
In the result, Mr. Bakken received a
substantial award. The trial judge awarded $70,000 for non-pecuniary damages,
past wage loss estimated at $67,677, future wage loss of $150,000, and special
damages of $10,150 ($10,000 for the cost of a pain management clinic which Mr. Bakken
did not ultimately participate). Mr. Bakken also received costs and
disbursements.

IV.      MR. BAKKEN’S ALLEGATIONS AGAINST MR. GODDARD

[30]        
The statement of claim in the present action alleged that Mr. Goddard
failed to advise Mr. Bakken in a timely way that he suffered from a
medical condition which interfered with his ability to properly represent Mr. Bakken’s
interests. As a result, Mr. Goddard breached his contract with Mr. Bakken
and his fiduciary duty as a solicitor. Mr. Bakken sought damages for
negligence as well as breach of contract and fiduciary duty.

[31]        
However, the statement of claim did not contain any allegation that Mr. Goddard
breached the standard of care of an ordinarily prudent solicitor, nor did it
contain an allegation that the award of damages Mr. Bakken received was
less than it ought to have been as a result of some act or omission on Mr. Goddard’s
part.

[32]        
At the present trial, Mr. Bakken argued the following:

(a)      Mr. Goddard
retained physicians who did not properly diagnose Mr. Bakken’s condition;

(b)      Mr. Goddard
failed to obtain an MRI at an earlier date; and

(c)      Mr. Goddard
failed to effectively represent Mr. Bakken at trial, as a result of the
medical condition which resulted in his hospitalization a month after the trial
concluded in October 1999.

[33]        
Although Mr. Bakken represented himself at trial, the pleadings
initiating the present action were drafted by legal counsel. Mr. Bakken
was continuously represented by counsel from the time the action was initiated
until late 2008.

[34]        
Mr. Goddard argued that the
pleadings in the present trial do not disclose a claim against him for solicitor’s
negligence, yet this was the principal claim advanced by Mr. Bakken at
trial. Further, and in the alternative, Mr. Goddard
argued that there is no basis in the evidence to support any claim against him,
whether properly pleaded or not.

V.       DECISION

[35]        
I have concluded that whether or not the claims advanced at trial
against Mr. Goddard have a basis in the pleadings, Mr. Bakken has
failed to prove any of those claims on the evidence. Because Mr. Bakken’s
claims fail on their merits, I have not addressed the issue of the adequacy of
the pleadings.

[36]        
I have already reproduced, verbatim, the salient portions of the trial
judge’s reasons. My summary of her conclusions is as follows:

·                
Mr. Bakken sustained soft tissue injuries to his neck and
back in the accident;

·                
At the time of the accident, Mr. Bakken was predisposed to
injury such that a relatively minor injury would likely take longer to heal;

·                
The accident contributed to his psychologically-based experience
of pain for a period of time following the accident;

·                
Mr. Bakken’s ongoing disability relates to his perception of
pain which was triggered by the accident and the significant pain he
experienced as a result;

·                
Mr. Bakken’s pre-existing fragilities were likely to precipitate
similar, if not the same, losses, such that he was not only a “thin skull” but
also a “crumbling skull”;

·                
The MRI evidence and additional orthopaedic opinion did not add
to the evidence because it did not establish that the disc herniations were
caused by the accident; instead, the herniations made Mr. Bakken more
susceptible to a more prolonged injury. In addition, the trial judge had
already concluded that Mr. Bakken had pre-existing susceptibilities prior
to the introduction of the MRI evidence;

·                
Had Mr. Bakken participated in a comprehensive
rehabilitation program, as the experts recommended, he likely would have
recovered.

·                
Even with such a recovery Mr. Bakken would not have been
able to return to his pre-accident employment;

·                
As an employee of the provincial government covered by a
collective agreement, Mr. Bakken had the opportunity to obtain alternate
employment without loss of salary or benefits, but he has nonetheless sustained
a loss of capacity to earn income.

[37]        
Despite the findings of the trial judge in the personal injury action, Mr. Bakken
argued in the present proceedings that the MRI established a far more serious
injury resulting from the accident, and which continues to render him disabled.

[38]        
In the present proceedings, Mr. Bakken
also sought to rely on recent medical reports of his current family physician,
who has offered the opinion that Mr. Bakken continues to be disabled from
any gainful employment as a result of the accident.

[39]        
Mr. Bakken argued that the recent
medical opinions of his current physician, together with the MRI results,
established Mr. Goddard’s failure to properly represent him at trial.

[40]        
I cannot accept Mr. Bakken’s arguments.

[41]        
First, Mr. Bakken has misunderstood the significance of the
evidence at trial concerning his medical condition, including the MRI findings
and the opinion of Dr. Kokan based on those findings, and the conclusions
of the trial judge based on that evidence. Second, the recent opinion of Mr. Bakken’s
physician concerning Mr. Bakken’s current condition, even if accepted as
true, does not establish that Mr. Goddard failed to properly represent him
at trial.

[42]        
The fact that the trial judge concluded on
the evidence before her at the time of the personal injury trial that Mr. Bakken
could return to gainful employment in the future does not prove fault on the
part of Mr. Goddard. The trial judge reached her conclusions on the basis
of the evidence before her (including the MRI report and Dr. Kokan’s opinion
evidence), and no appeal was taken from that decision.

[43]        
The issue is not whether Mr. Bakken
can now muster evidence of ongoing disability. The issue is whether Mr. Goddard,
by action or omission, breached the requisite standard of care, the contract or
a fiduciary duty to his client.

[44]        
Mr. Bakken advanced no evidence in
the present proceedings which suggested that Mr. Goddard breached the
requisite standard of care, or committed any other breach. I have also reviewed
the voluminous medical, paramedical and actuarial reports obtained by Mr. Goddard
and advanced at the personal injury trial on Mr. Bakken’s behalf. It is
clear from those reports that Mr. Goddard vigorously pursued every head of
damage possible. Mr. Goddard sent Mr. Bakken to qualified
professionals who provided their considered opinions concerning Mr. Bakken’s
injuries, ongoing disabilities and prognosis. The trial judge concluded that
those opinions established the diagnosis of chronic pain syndrome caused in
part by pre-existing psychological factors, and a prognosis that with
appropriate treatment Mr. Bakken could return to light or sedentary work.

[45]        
The trial judge also concluded that the
MRI findings did not change Mr. Bakken’s prognosis or render him incapable
of returning to alternate work.

[46]        
Mr. Bakken called evidence from two
lay witnesses who had testified on his behalf at the personal injury trial. Both
witnesses were somewhat critical of Mr. Goddard’s performance as counsel. One
witness complained that she was called to give evidence sooner than she had
anticipated. She said Mr. Goddard did not ask her all of the questions she
had anticipated being asked. The other witness said Mr. Goddard appeared
flustered or disorganized.

[47]        
I have reviewed all of the transcripts of
the personal injury trial. The transcripts do not support the criticisms
alleged by Mr. Bakken in the present proceeding. Nor do the transcripts
disclose any suggestion of impairment, incapacity or incompetence on the part
of Mr. Goddard.

[48]        
 Mr. Bakken had access to Mr. Goddard’s
medical records, but did not advance any evidence to suggest that Mr. Goddard
was not medically fit before or during the personal injury trial.

[49]        
Mr. Goddard readily acknowledged
that several weeks after the trial concluded in October 1999, he encountered
medical difficulties which prevented him from continuing to work on the
application to reopen Mr. Bakken’s case. At that time, Mr. Goddard properly
referred Mr. Bakken to other experienced counsel, a step expressly
contemplated by the contingent fee contract. Despite this referral, Mr. Bakken
refused Mr. Hansford’s services and retained Mr. Crawford instead.

[50]        
Mr. Crawford was successful in
persuading the trial judge to reopen the case to receive the MRI report and
opinion of Dr. Kokan. Those steps cost Mr. Bakken no additional fee because
Mr. Crawford’s fee was taken from the contingent fee owing under the Contract
to Mr. Goddard. As a result, it was Mr. Goddard and not Mr. Bakken
who bore the cost of Mr. Crawford’s services.

[51]        
The trial judge concluded that the
additional evidence did not alter her conclusion concerning Mr. Bakken’s
diagnosis, prognosis and future income earning capacity.

[52]        
Mr. Bakken argued that by the time
the MRI evidence was tendered, the trial judge had reached her conclusions. He
alleged that the medical evidence advanced by Mr. Goddard to that stage of
the personal injury trial had irreversibly tainted his case.

[53]        
Mr. Bakken’s argument in the present
proceedings is based on a misunderstanding of Dr. Kokan’s medical opinion
concerning the significance the MRI findings. It is also based on a
misapprehension of the trial judge’s duty to fairly and impartially consider
all of the evidence before reaching her conclusions, and a misreading of her
careful and thorough reasons for judgment. The trial judge’s close examination and
consideration of Dr. Kokan’s opinion evidence illustrates that her
conclusions were based on the evidence before her, and not on a preconception
of the merits of Mr. Bakken’s case.

[54]        
In the course of this proceeding, Mr. Bakken
made numerous and wide-ranging allegations against Mr. Goddard. By way of
example, he alleged that Mr. Goddard advised him not to obtain an MRI, not
to attend a chronic pain clinic, and not to be truthful to the court. In his
evidence at trial, Mr. Goddard denied each allegation. Mr. Goddard
provided the court with contemporaneous documentary evidence which
substantiated his version of events. There was no independent evidence to
substantiate Mr. Bakken’s version of events occurring before, during or
after the personal injury trial.

[55]        
From the evidence as a whole, including
the trial transcripts and the medical reports exhibited at trial, I conclude
that Mr. Goddard worked diligently for Mr. Bakken to achieve the best
result he could in the circumstances. Mr. Bakken received a substantial
award due, in large part, to the efforts of Mr. Goddard.

[56]        
 Mr. Bakken did not argue that Mr. Goddard
should be denied the benefit of the contingent fee stipulated in the Contract,
nor was there evidence to suggest that Mr. Goddard was not entitled to the
fee.

[57]        
In any event, Mr. Bakken has applied
for a review of Mr. Goddard’s fee under the Contract, and that review is
pending before the Registrar.

VI.      CONCLUSION

[58]        
Mr. Bakken has failed to establish that Mr. Goddard breached
any duty owed to him as Mr. Bakken’s solicitor or that Mr. Goddard is
not entitled to the benefit of the Contract.

[59]        
Mr. Bakken’s claim is dismissed with costs to Mr. Goddard at
Scale B.

The Honourable Madam
Justice C.A. Wedge