IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Borgfjord v. Penner, |
| 2010 BCSC 1809 |
Date: 20101217
Docket: M1985
Registry:
Powell River
Between:
Cheryl Borgfjord
Plaintiff
And
Brendan James
Penner
Defendant
Before:
The Honourable Mr. Justice Shabbits
Reasons for Judgment
Counsel for the plaintiff: | F.G. Reif |
Counsel for the defendant: | M. Burger |
Place and Date of Trial: | Powell River, B.C. July 13, 14, 15, 16, |
Place and Date of Judgment: | Powell River, B.C. December 17, 2010 |
Nature of Proceeding
[1]
The plaintiff lives in Powell River, British Columbia. At about six
oclock in the evening of October 10, 2010, the plaintiff was injured in a
motor vehicle accident that occurred just south of Powell River, on Highway 101.
[2]
The plaintiff was the operator and sole occupant of a four door Intrepid
Chrysler sedan that was rear-ended by a ¾ ton Dodge pickup truck. The truck was
owned and being operated by the defendant.
[3]
The plaintiff had stopped her car on the highway in order to turn left
into a card lock fuel facility. The plaintiff was waiting for oncoming traffic.
She was wearing a seat and shoulder belt. She had a head-rest. She did not hear
anything before she became aware that her vehicle had been struck. The collision
popped the trunk of her car open. It shattered its back window. The plaintiff
was thrown forward and then pulled back.
[4]
The plaintiff testified that her vehicle suffered significant damage
and that the force of the impact threw her violently about. I accept that
evidence. The photographs of the Dodge exhibited at trial show damage to the
areas of both taillights, the trunk and the rear window. I am satisfied the
force of the collision was sufficient to cause the plaintiff serious injury and
bodily harm.
[5]
The plaintiff claims damages for the injuries and losses that she
suffered as a result of the accident.
[6]
The defendant admits that the accident occurred as a result of his
negligence. He puts damages at issue.
[7]
This proceeding is to assess the plaintiffs damages.
The Plaintiffs Evidence
[8]
The plaintiff said that she felt immediate pain in the back of her head.
She was trembling and shaking. The plaintiff telephoned her husband who was at
their house a couple of kilometres away. He immediately came to the scene of
the accident, and he was there when an ambulance arrived.
[9]
The plaintiff was transported to the Powell River General Hospital in
the ambulance on a spine board.
[10]
X-rays were taken at the hospital and found to be negative. The hospital
records note the plaintiff complained of left clavicle pain and thoracic spinal
pain. The assessment of the Emergency Department physician was MVA, chest wall
contusion. He gave the plaintiff standard RICE instructions and prescribed
medication. The plaintiff was at emergency for about an hour. Her husband drove
her home.
[11]
The plaintiff said that when she left the hospital she felt tired and sore.
She spent three days in bed. The plaintiff said she had episodes of severe pain
in her back, and headaches. She sometimes felt light headed and dizzy. Her neck
was tender. She was generally sore.
[12]
On November 1, the plaintiff experienced an episode of stabbing pain (her
evidence) or a sharp tearing sensation (the hospital records) and she went
back to emergency. She saw the same Emergency Department physician. She had
more x-rays. She was prescribed more medication. She was given more discharge
instructions. The physician assessment was Muscle pain and soreness following
MVA.
[13]
The plaintiff started driving again in December 2006, but she said that
driving made her anxious. She says that driving for long periods of time causes
flare-ups of pain.
[14]
The plaintiff started to keep a diary to record complaints. The diary supports
the plaintiffs evidence that since the accident she has experienced intermittent
soreness and pain in her lower back, upper back, neck and head. Her complaints
have waxed and waned. They are sometimes aggravated by poor weather and by
physical activity.
[15]
The plaintiffs complaints have not resolved. The plaintiff now
identifies her upper back area between her shoulder blades as an area of
particular soreness and stiffness. She said that she has numbness in her
left arm that comes and goes.
[16]
The plaintiff described the effect the motor vehicle accident has had on
her activities. She has not been able to get back to her pre-accident
activities. She has difficulty doing housework. She gets far less enjoyment
from physical activity, such as boating. She avoids other kinds of physical
activity, especially exercise. She has gained weight. Her marital relationship has
suffered. Her sleep is disordered.
[17]
The plaintiff describes years of intermittent misery. Her complaints
have plateaued. She now experiences flare-ups of discomfort and pain with
accompanying restriction of activity.
[18]
The plaintiff has taken prescribed and recommended medication. She has
had massage treatments. She has had acupuncture. She has had physiotherapy
treatments. She had a few sessions with a personal trainer. She has tried yoga.
[19]
The plaintiff gave evidence about two incidents that were the focus of some
attention during the trial.
[20]
In June 2007 she was sleeping in the family boat when another boat that
was pulling into dock collided with it. The plaintiff was jolted about, and her
back went into spasm. She went to the hospital to be examined. The plaintiff
says this accident had no long-lasting effects.
[21]
In October 2008 her neck locked. The plaintiff said she had instant pain
up the back of her head. She again went to the hospital. The plaintiff says
that her complaints from that incident lasted a few days.
[22]
The plaintiff and her husband both say that he now does things around
the house that she did before the accident. Mr. Wayne Borgfjord now helps
out with housework for two or three hours a week. He cannot do more because he
is fully occupied in operating a lumber sawmill in which he is a partner.
[23]
The plaintiff acknowledges that her doctors and care-givers have urged
her to be more physically active and to involve herself in conditioning
programs. She concedes she could have done more, but she explains that
complicating factors have included depression, lack of motivation, weight gain
and her fear that physical activity might aggravate complaints.
[24]
The plaintiff had a number of jobs before she and her husband Wayne married
in 1999. They were primarily clerical or office jobs. She worked part time in a
bank, and she worked full time in a lawyers office in Powell River for about three
years before she began her relationship with her husband. That was her first
full time job.
[25]
The plaintiff said that both she and Wayne have children from previous
marriages, and that after 2002 she became a stay-at-home mother and housewife.
She said that she had planned to return to work.
[26]
After the accident, the plaintiff did return to work. In June of 2007, the
plaintiff began full time work as an assistant housing manager for a First Nations
Band office at Powell River. The plaintiff is First Nations.
[27]
In the spring of 2008, the plaintiff switched from full-time work to
part-time work. She explained that in November 2007, she trained to be a
membership clerk. She said that the assistant housing manager position was
stressful, and that she preferred other work.
[28]
The plaintiff said that she left her part time work at the Band office
in September 2009 because of asthma. Asthma had been problematic for the
plaintiff prior to the motor vehicle accident.
[29]
The plaintiff concedes that there are long gaps in the journal without entries.
The plaintiff denies that that is of relevance. She says that she did not write
everything down in the diary. Much of what could be written was repetitive.
[30]
The plaintiff had arthroscopic knee surgery in 2002. She had played
soccer prior to that time, even as an adult, but she did not play soccer after
surgery. The plaintiff had some lower back problems prior to the accident. The
plaintiff experienced nerve arm symptoms before the accident and she had been
noted to have problematic posture.
[31]
Mr. Borgfjord gave evidence consistent with the plaintiffs
evidence. Although the passage of time has made it difficult for him to
remember details of past events, he gave general evidence confirming the
plaintiffs history of injury and physical restrictions. He confirms that the
plaintiff continues to have complaints of discomfort and that her activities
continue to be restricted.
The Medical Evidence
Dr. Pieter Rossouw
[32]
Dr. Pieter Rossouw is in family practice in Powell River. He was
the plaintiffs treating physician.
[33]
On December 06, 2006, Dr. Rossouw completed a medical
report for ICBC on its form CL19.
[34]
Dr. Rossouw reports that the plaintiffs initial subjective
complaint was neck pain. He writes that his initial objective finding was bilateral
neck muscle spasms, and that the plaintiffs current subjective complaints were
neck pain and upper back pain with numbness and weakness in her left arm. Dr. Rossouw
writes that the plaintiff had motor weakness of the left arm, decreased range
of motion in the neck and muscle spasm in the neck and upper back. He says that
she was not capable of working and not able to do housework.
[35]
On July 24, 2008, in a letter to the plaintiffs counsel, Dr. Rossouw
answers counsels questions. Dr. Rossouw says that it is difficult to
anatomically localize and categorize all the injuries that the plaintiff might
have sustained in the motor vehicle accident, but he says her main complaints
over the past six months seemed to be localized in her neck and her upper back.
[36]
He says the plaintiff has tried all available modalities including
pharmacological, acupuncture, physiotherapy, and chiropractic treatment, and
that they likely offer only symptomatic relief.
[37]
Dr. Rossouw writes that Ms. Borgfjord was initially disabled
from work and unfortunately I do not have the exact dates and She was also
disabled from household tasks and recreational activities and amenities of life
(period not defined).
Dr. John A. Fuller
[38]
Dr. Fuller is an orthopaedic specialist.
[39]
Dr. Rossouw referred the plaintiff to Dr. Fuller. Dr. Fuller
examined the plaintiff on March 3, 2009.
[40]
In a consultation report transcribed March 19, 2009, Dr. Fuller
notes that the plaintiff complained of pain at the C6/7 level with the
alignment suggesting a subluxation flexion extension. He writes that further x-rays
of the cervical spine were obtained and that they display no evidence of
fracture or subluxation.
[41]
Dr. Fuller writes the diagnosis was pain, proximal thoracic spine,
not yet diagnosed. Dr. Fuller says that a CT scan had disclosed
degenerative changes at C5/6, and that he arranged for an MRI because of
inadequate diagnosis of the plaintiffs presentation.
[42]
Dr. Fullers wrote a medical legal report on May 31, 2009
after he received the results of the MRI investigation.
[43]
He reports that the review of the MRI discloses a right paracentral
focal disc protrusion at the C6/7 level as well as a degree of degenerative
change at C5/6.
[44]
Dr. Fuller says that those changes could give rise to discogenic
pain. He says there is no indication on the MRI or clinically for nerve root
compromise.
[45]
Dr. Fullers writes that on the balance of probabilities, the
degenerative changes at C5/6 were not symptomatic, and that it is more probable
the plaintiffs symptoms relate to discogenic pain at the C6/7 level.
[46]
After noting that Ms. Borgfjord sustained a significant flexion/extension
overload in the motor vehicle accident, Dr. Fuller offers this opinion
On the balance of probability,
this stress could have either caused the C6/7 disc protrusion or rendered it
more symptomatic. It is less probable that the degenerative changes at C5/6
have been significantly rendered symptomatic.
[47]
Dr. Fuller was cross examined by video deposition on
July 9, 2010.
[48]
Dr. Fuller testified that the plaintiff had no subluxation or
partial dislocation.
[49]
Dr. Fuller examined the MRI film and he agrees with the MRI report
that the plaintiff has degenerative changes at C5/6 and a paracentral focal disc
protrusion at C6/7.
[50]
Dr. Clement said there was no obvious nerve root compromise at
C6/7.
[51]
Dr. Fuller was asked about whether the motor vehicle accident
caused the disc protrusion. Dr. Fuller explained that he wouldnt be as
definite as to say it caused and that what he said earlier was that it
appears reasonable.
[52]
When asked whether disc protrusions can occur in other ways than in a
motor vehicle accident, he said very much so. He agrees with the suggestion
that protrusions could be caused without the exertion of a lot of force.
[53]
Dr. Fuller said that he would expect the protrusion of a disc to
cause immediate or almost immediate pain.
[54]
Dr. Fuller noted that the lapse of some two and one-half years
between the motor vehicle accident and the identification of the disc
protrusion made inferences in respect of causation more difficult.
[55]
Dr. Fuller agreed with the suggestion that symptoms that are aggravated
by stress are more suggestive of soft-tissue injury. He said soft tissue
injuries seem to be more reactive to psychological stress than dolesions, such
as a disc protrusion, which tend to have more constant symptoms.
[56]
Dr. Fuller said the protrusion did not cause neurological
impingement.
[57]
Dr. Fuller wrote a further report on August 10, 2009.
[58]
In this report, Dr. Fuller again writes that the spine overload in
the motor vehicle accident was sufficient to initiate symptoms involving the
neck secondary to both a degree of musculoligamentus injury and a C6/7 disc
protrusion. He says:
On this
basis, it appears reasonable to relate the onset of this patients symptoms to
the motor vehicle accident of October 10, 2006.
I would, however, reiterate that
I did not see this patient prior to the motor vehicle accident in question nor
did I see her for two years and five months following the accident. I,
therefore, have no definitive knowledge of the absence of some alternative
traumatic event.
[59]
Dr. Fuller writes that the final diagnosis subsequent to the MRI
was a significant central C6/7 disc causing discogenic pain.
[60]
Dr. Fuller says that his opinion is that the prognosis of further
improvement is guarded, if not poor.
[61]
Dr. Fuller concludes by saying that degenerative changes at C6/7
will probably occur, but he thinks that such changes would not materially alter
her clinical status.
Dr. Iain G. Dommisse
[62]
Dr. Dommisse examined the plaintiff at the request of counsel for
the defendant. His medical report is dated September 3, 2009. He says
his purpose was to ascertain the degree of musculoskeletal injury the plaintiff
suffered in the accident.
[63]
Dr. Dommisse makes note of the plaintiffs complaints, past
treatment and past history. All of that accords with the plaintiffs evidence
at trial. He notes the plaintiffs symptoms vary with weather change, fatigue
and activity. He notes that the plaintiff has had upper back pain since the
accident.
[64]
Dr. Dommisse details his observations on examination. He reviews
the CT scan and the MRI study.
[65]
Dr. Dommisse writes that his diagnosis of the plaintiff is that of
Grade II cervical strain as the result of the motor vehicle accident. His
opinion is that prognosis for future recovery from the accident is good, and
that the plaintiff will not be permanently or partially disabled as a result of
the accident.
[66]
Dr. Dommisse explains that in his opinion Ms. Borgfjords
symptoms are likely caused by degenerative changes at C5/6 and C6/7, and that
those degenerative changes produce pain radiating to Ms. Borgfjords upper
thoracic area.
[67]
Dr. Dommisse writes that Ms. Borgfjords symptoms related to
her left arm do not correlate with Dr. Fullers statement that she is
suffering from symptoms due to discogenic pain at the C6/7 level.
[68]
Dr. Dommisse testified at the trial.
[69]
He said that his opinion is that the motor vehicle accident caused a
Grade II cervical strain that has since resolved.
[70]
Dr. Dommisse said that he does not agree that the plaintiffs disc
protrusion is traumatic in origin. It said his opinion is that it was caused by
degeneration of the spine. It said the protrusion is an early sign of
degeneration. He said that he is of the opinion that the protrusion was not
caused by the motor vehicle accident.
[71]
Dr. Dommisse said that the history makes it improbable that there
was an accident caused disc protrusion. The plaintiff did not experience immediate
or almost immediate pain. There was no observation of a symptom that supports
that diagnosis.
[72]
Dr. Dommisse said his opinion that the protrusion of the disc is a
degenerative change is consistent with the overall condition of the plaintiffs
spine. He said it is common to have problems with the lumbar spine if you have
problems with the cervical spine.
[73]
He said his opinion is consistent with the improvement of symptoms with
good weather.
[74]
Dr. Dommisses opinion is that cervical strain caused the
plaintiffs early problems and that her cervical strain symptoms likely
resolved within 6 months to 2 years post accident. His opinion is that
degenerative changes caused the plaintiffs later problems. He says that
degenerative changes are the cause of the plaintiffs continuing problems.
[75]
Dr. Dommisse said that exercise improves range of motion and muscle
strength. He said exercise lessens symptoms caused by cervical strain as well
as symptoms caused by degenerative change.
Dr. K. Waterman
[76]
Dr. Waterman is a consulting neurologist. The plaintiff was referred
to him by Dr. Rossouw at the request of counsel for the plaintiff. Dr. Watermans
medical report is dated May 5, 2010.
[77]
Dr. Watermans opinion is that the plaintiff suffered whiplash
after a rear-ender type of motor vehicle accident.
[78]
He says that he evaluated her nervous system on May 4, 2010,
and that there is no neurologic disorder to explain the plaintiffs intermittent
numbness of the left hand or arm for most of the time since her accident.
[79]
Dr. Waterman writes that intermittent numbness of the arm is a
common reason for a person with whiplash to visit a neurologist. He says that
if there is no neurologic cause, it is attributed to postural change. He
explains that a patient tends to assume a slightly flexed posture in response
to discomfort which causes the nerves to be compressed as they pass through the
shoulder region into the armpit. The reason it is intermittent is that the
postural change is not constant. He says the mechanism is like when a leg goes
numb on a long bus ride.
[80]
Dr. Waterman says that in the case of the plaintiff, the MRI scan
was done two and one-half years after the accident. No scan was done before the
accident. Dr. Watermans opinion is that it is a logical fallacy to assume
the degenerative changes seen on the MRI occurred at the time of the accident
rather than sometime before or after the accident.
[81]
Dr. Waterman writes this:
Speaking to the cause of
whiplash, or of non-neurologic spine pain in general, it is commonly believed
by the public and even some physicians (see opinion of Dr. Fuller, above)
that mild degenerative changes seen on CT or MRI are a cause. However, the
medical evidence suggests that this view is not true. Numerous studies have
shown that there is a high incidence of minor degenerative change on MRI or CT,
as is seen in this patient, and even of substantial disc herniation in
populations of patients who do not have spine pain. There are also many people
with bad spinal pain who have no degenerative change (usually young people). In
view of this data, it is difficult to attribute spine pain in a given case to a
minor degenerative problem.
[82]
In his medical legal letter, Dr. Waterman reviews Dr. Jason Clements
MRI report. When doing so, he says he reviewed the images of the MRI scan, and
that he agrees with Dr. Clements MRI report. In that MRI report, Dr. Clements
notes a small right paracentral focal disc protrusion at C6/7. Dr. Waterman
writes that although he agrees with Dr. Clements MRI report, he would
have dictated and phrased it like this: There are minor degenerative changes
at several levels of the cervical spine that do not result in nerve root or
spinal cord compression and are unlikely to be clinically significant. It
therefore follows that Dr. Waterman is of the opinion that the protrusion is degenerative
in origin.
[83]
Dr. Waterman does not agree that the plaintiffs pain is caused by
the protrusion. His opinion is that it is pain from soft tissue damage.
[84]
Dr. Watermans prognosis is that the plaintiffs most likely
outcome is that she will be improved in several years, and that she will suffer
intermittent pain at that time which she can largely control by modulating her
activities, and that it is less likely that she will be either better or worse
than that.
[85]
He says that he does not believe that this motor vehicle accident has
increased the chance that the plaintiff will develop neuro-surgically important
cervical disc disease in the future. He writes Whiplash does not generally
have a substantial relapse without re-injury.
Discussion
[86]
The parties agree that the motor vehicle accident caused the plaintiff whiplash
associated disorder. They disagree as to its severity and its duration
[87]
The plaintiffs claims that the motor vehicle accident either caused her
disc protrusion at C6/7 or that it materially contributed to disc protrusion symptoms.
[88]
The defendant submits that it has not been established that the accident
caused the C6/7 disc protrusion. The defendant submits that the soft tissue
injury has resolved, and that what the plaintiff is feeling now, and what she
has been feeling for at least the last two years, is caused by factors other
than that of the motor vehicle accident. The defendant submits that he is not
responsible for any of the plaintiffs symptoms relating to degeneration of the
spine or to symptoms caused by disc protrusion or disc herniation.
[89]
Dr. Fullers opinion that it is reasonable to conclude that the C6/7
disc protrusion rests on the premises that the motor vehicle accident forces
were sufficient to cause the protrusion, that the protrusion is traumatic in
origin and that there is no other known traumatic event.
[90]
Dr. Fullers opinion is not shared by Dr. Dommisse or Dr. Waterman.
[91]
There is no objective evidence as to when the disc protrusion or
degenerative changes occurred. The disc protrusion and degenerative changes may
have occurred before the accident, at the time of the accident, or after the
accident.
[92]
Dr. Dommisse is of the opinion that the protrusion is not traumatic
in origin.
[93]
Dr. Waterman thinks it is unlikely that the C6/7 protrusion is
symptomatic.
[94]
Although Dr. Fuller says the C6/7 protrusion is traumatic in
origin, he agrees that not a lot of force is needed to cause such a protrusion.
[95]
I am satisfied that the accident was of sufficient force to cause the
disc protrusion, but I am not satisfied that the protrusion is traumatic in
origin or that it was caused by the accident.
[96]
The plaintiff did not have the pain after the accident that usually accompanies
a traumatic protrusion of a disc. The plaintiff has degeneration of the spine that
was not caused by the accident. I accept Dr. Dommisses opinion those other
degenerative changes are consistent with the protrusion being degenerative in
origin. The plaintiffs post-accident symptoms are not constant but change with
changes of the weather. That indicates the symptoms are soft tissue injury
symptoms and not symptoms of a traumatic disc protrusion.
[97]
I have concluded that the plaintiff has not established, on a balance of
probabilities, that the motor vehicle accident caused her C6/7 disc protrusion.
[98]
In my opinion, the plaintiff has established that the accident caused
her to suffer a cervical strain.
[99]
In my opinion, Dr. Dommisse is speculating when he opines that the
plaintiffs accident caused symptoms have already resolved. The usual pattern
of soft tissue injury may well involve the resolution of symptoms within 6
months to two years post injury, but the plaintiffs complaints have continued
unabated and there is no certainty that the plaintiffs disc protrusion or
degenerative condition of the spine is now or ever has been symptomatic.
Dr. Watermans opinion is that what he saw on the MRI, (which includes the
disc protrusion), is unlikely to be clinically significant. He says it is
difficult to attribute spine pain to what he observed.
[100]
I accept the opinion and prognosis of Dr. Waterman. In my opinion,
his evaluation and analysis of the medical evidence is persuasive.
[101]
I find that the plaintiff suffered a whiplash injury in the motor
vehicle accident and that her whiplash caused injuries are ongoing. I think it
more likely than not that the plaintiff falls within that category of patients
referred to by Dr. Waterman who experience whiplash caused pain for years
post-accident. I find that the most likely outcome of the plaintiffs injuries
is that she will be improved in several years, but that she will suffer
intermittent pain which she will be able to largely control by modulating her
activities.
[102]
Dr. Waterman is of the opinion that the motor vehicle accident has
not increased the chance that the plaintiff will develop neuro-surgically
important cervical disc disease in the future. He says that whiplash does not
generally have a substantial relapse without re-injury. I accept that opinion evidence.
Non-Pecuniary Damages
[103]
In Stapley v. Hejslet, 2006 BCCA 34, Madam Justice Kirkpatrick
writes for the majority of the Court of Appeal. She discusses the underlying
purpose of non-pecuniary damages at paragraphs 45 and 46:
[45] Before embarking on that task, I think it is instructive
to reiterate the underlying purpose of non-pecuniary damages. Much, of course,
has been said about this topic. However, given the not-infrequent inclination
by lawyers and judges to compare only injuries, the following passage from Lindal
v. Lindal, supra, at 637 is a helpful reminder:
Thus the amount of an award for non-pecuniary damage should
not depend alone upon the seriousness of the injury but upon its ability to
ameliorate the condition of the victim considering his or her particular
situation. It therefore will not follow that in considering what part of the
maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it will
be impossible to develop a "tariff". An award will vary in each case
"to meet the specific circumstances of the individual case" (Thornton
at p. 284 of S.C.R.).
[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors,
although they may arguably be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163
(QL), 2005 BCCA 54).
[104]
After referring to Stapley v. Hejslet, Madam Justice Ker of this
court says this at paragraph 188 and 189 of Trites v. Penner, 2010 BCSC
882:
[188] Non-pecuniary damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of
amenities. The compensation awarded should be fair and reasonable to both
parties: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews];
Jackson v. Lai, 2007 BCSC 1023 at para. 134 [Jackson]; Kuskis
v. Hon Tin, 2008 BCSC 862 at para. 135 [Kuskis].
[189] For the purposes of
assessing non-pecuniary damages, fairness is measured against awards made in
comparable cases. Such cases, though helpful, serve only as a rough guide. Each
case depends on its own unique facts: Andrews; Jackson; Jenkins
v. Bourcier, 2003 BCSC 388 at para. 87; Radford v. Drobot et al.,
2005 BCSC 293 at para. 62; Kuskis at para 136.
[105] The
defendant points out that the plaintiff had knee surgery before the accident
and that she had pre-existing back pain. The defendant submits that the
assessment must not include compensation for pain or restriction unrelated to
the motor vehicle accident. I agree.
[106] Counsel
for the defendant has referred me to the cautionary note of McEachern C.J.S.C.
(as he then was) in Price v. Kostryba, (1982) 70 B.C.L.R. 397 (S.C.) at
399. Although an injured person is entitled to compensation for injury or
disability, a claimant cannot expect compensation in the absence of convincing
evidence, which could be just his own evidence if the surrounding circumstances
are consistent.
[107] The
plaintiffs testimony included testimony that reflects to its credit. For
example, the plaintiff said that the reason why she left two jobs following the
accident was not because of the motor vehicle accident. She testified at
discovery that the accident had not caused her to lose income. She conceded
that she could have done more in mitigation of injury. The plaintiffs recollection
of events has been compromised by the passage of time, but I thought her
evidence was credible. I accept it.
[108] The
plaintiff was 40 years of age when she was injured. She suffered soft-tissues injuries
that have not yet resolved. It is more likely than not that she will continue
to experience episodes of significant pain and restriction of activity for
years to come. The plaintiff has experienced depression both before and after
the motor vehicle accident, and that has exacerbated the effects of the
accident.
[109] I have
been referred to a number of decisions of this court for comparative review.
[110] In Gosselin
v.Neal, 2010 BCSC 456, Mr. Justice Silverman assesses non-pecuniary
damages for a female plaintiff who was 39 years old at the time of a motor
vehicle accident. The plaintiff claimed injuries to her neck, right shoulder,
back and mid-back. Mr. Justice Silverman assesses non-pecuniary damages at
$100,000.
[111] In Smusz
v. Wolfe Chevrolet Ltd. 2010 BCSC 82, Madam Justice Russell assesses
non-pecuniary damages for a female plaintiff who was injured in a motor vehicle
accident at the age of 43. Her injuries included a C3/4 disc herniation, a C6/7
disc protrusion, and a bulging lumbar disc, all of which were symptomatic. Her
injuries, more serious than the plaintiffs, were assessed at $100,000.
[112] In Fox
v. Danis, 2005 BCSC 102, Madam Justice Sinclair-Prowse assesses damages for
a female plaintiff who was 28 when she was injured in a motor vehicle accident.
Madam Justice Sinclair-Prowse was satisfied that the plaintiff suffered a
moderately severe soft-tissue injury that is permanent, as well as a prolapsed
disc at L5/S1 that resulted in nerve injury. The nerve injury was permanent. The
injuries caused the plaintiff periodic pain in her neck, right shoulder and
chronic pain in her lumbar spine, left buttock and left leg. Non-pecuniary
damages are assessed at $100,000.
[113] In Chu
v. Ponsford, 2008 BCSC 429, Mr. Justice Masuhara assesses
non-pecuniary damages for a female plaintiff who was 33 years old when injured
in a motor vehicle accident. The plaintiff suffered soft-tissue injury in the accident,
which resulted in a variety of complaints. Her injuries are described as
moderate. All had resolved except for continuing right-sided posterior shoulder
girdle and mid-back pain. Mr. Justice Masuhara finds the prognosis for the
unresolved symptoms was for good to very-good recovery. Damages are assessed at
$25,000.
[114] In Reichennek
v. Archibald, 2008 BCSC 1304, Mr. Justice Williams assesses
non-pecuniary damages for a female plaintiff who sustained a moderate
soft-tissue whiplash injury that caused pain and discomfort to her neck and
back and resulted in headaches. Symptoms were significantly resolved by four
months post accident, although discomfort and limitation of activity, albeit
gradually improving, continued up to trial, three and one-half years post
accident. Mr. Justice Williams finds that with proper exercise and self
care, there would be a complete resolution. He assesses non-pecuniary damages
at $22,000.
[115] All of
these cases, and others to which I was referred, are helpful for comparative
purposes, but all turn on their facts.
[116] The
plaintiffs complaints are moderately severe. They wax and wane and are
intermittent. It is more likely than not that the plaintiffs condition will
not improve for several years, and that even then her pain will likely largely
be controlled by modulation of activities rather than by resolution.
[117] The
defendant puts mitigation at issue. His defence pleads that the plaintiff has
failed or refused or neglected to take reasonable steps to mitigate her damages,
losses and expenses.
[118]
Mr. Justice Halfyard discusses mitigation in Turner v. Coblenz,
2008 BCSC 1801 at paragraph 101:
101 The defendant bears the onus of proving the
essential elements of failure to mitigate, which are the following:
(a) That a qualified medical expert recommended that a
plaintiff undergo a particular form of treatment;
(b) That the plaintiff failed or refused to take the
recommended treatment although it was available to him or her; and
(c) That the plaintiffs refusal or failure was
unreasonable, in that if the plaintiff had taken the recommended treatment,
there is some likelihood that he or she would have received substantial benefit
from it, and the treatment would not expose the plaintiff to significant risk.
See Janiak v. Ippolito
[1985] 1 S.C.R. 146; Chiu (guardian ad litem of) v. Chiu 2002
BCCA 618 at paragraph 57; and Middleton v. Morcke 2007 BCSC 804
at paragraph 37.
[119] In this
case, the plaintiff was urged by Dr. Rossouw and other physicians to
pursue a physical conditioning program. She was told by other health
professionals that she should exercise and improve her core strength. She
acknowledges that.
[120] The
plaintiff did make some half-hearted efforts to improve her conditioning, but
in my opinion she did not do what was reasonably required.
[121] I have, in
coming to the conclusion that the plaintiff did not act reasonably, taken into
account that the plaintiff has experienced depression and that she was frustrated
and angry.
[122] Dr. Dommisse,
who had recommended to the plaintiff that she exercise, explained that pain
causes reduction of muscle activity. He said that exercise would have improved
the plaintiffs range of motion, and her muscle strength, and decreased her
symptoms related to cervical strain.
[123] I have
concluded that the defendant has established that the plaintiffs injuries and
damages would have been mitigated had she taken reasonable steps in mitigation.
[124] I assess
the plaintiffs non-pecuniary damages at $85,000. I am of the view that her
right to recover damages should be reduced by 20% because of her failure to
mitigate.
[125] I order
that the plaintiff recover $68,000 of the defendant for non-pecuniary damages.
Past Loss of Income
[126] The
plaintiff acknowledges that the clinical records and Dr. Fullers opinion
indicate that she was capable of continuing with her employment as an assistant
business manager and membership clerk, albeit with some exacerbation of symptoms.
[127] At
discovery, the plaintiff agreed that she had not suffered an income loss
because of the accident.
[128] The
plaintiff testified that she left her housing management job because of the
stress of the work, and that she left her membership clerk job because of
asthma. She said those events were unrelated to the motor vehicle accident.
[129] The
plaintiff concedes that she is unable to establish a past wage loss.
[130] I find
that the plaintiff has not established that she has suffered a past loss of
income. She has not presented evidence that she suffered such a loss. Her
claim for damages for past loss of income is dismissed.
Special Damages
[131] The
plaintiff claims special damages in the sum of $6,588.72. They are itemized in
the list that she submitted for consideration.
[132] The
defendant takes issue with some of those claims.
[133] I agree
that the travel expenses claimed by the plaintiff to be examined by Dr. Waterman
are not special damages. They are disbursements for the bill of costs.
[134] The
plaintiff has not established that she incurred all of the muscle pain patch
costs that she has claims. I allow $500 for the cost of muscle pain patches.
[135] The claimed
massage treatments, totalling $539.90, shall be reduced by whatever the
defendant has already paid for them.
[136] The
defendant submits that had the plaintiff followed the medical recommendations that
she exercise, that some of her special damages expenditures would not have been
necessary. I am of the view that the evidence does not show that the claim for
special damages should be reduced by failure to reasonably mitigate. Exercise
would have reduced but not eliminated symptoms. Treatment and expenditures
would still have been necessary, even if the plaintiffs symptoms had been
reduced.
[137] The
defendant notes that the plaintiff did not think massage treatments were
benefiting her, but that she continued with massage treatments. The defendant submits
that he should not be required to pay for massage treatments after 2007. I do
not agree that because the plaintiff was sceptical that they were of benefit
that it was unreasonable for her to continue with those treatments. It seems to
me that had she discontinued the treatments, that that, too, could have been
the subject of criticism.
[138] I allow
the balance of the special damages as claimed.
[139] The
plaintiff shall recover special damages of $5,990.82 less any amounts that she
has already paid for massage treatments.
Loss of Future Earning Capacity
[140] The
plaintiff advances a claim based on loss of earning capacity.
[141] The
plaintiff submits that there is a real or substantial possibility that she will
earn less money in the future than she would have earned but for the motor
vehicle accident, and that that loss must be assessed.
[142] Claims for
loss of earning capacity were recently discussed by the British Columbia Court
of Appeal in Perren v. Lalari, 2010 BCCA 140.
[143] At
paragraph 12, Madam Justice Garson writes that there are two approaches to the
assessment of future earning capacity, and both are correct.
[144] The first approach
is to assess a pecuniary loss that is quantifiable in a measurable way. Garson J.A.
writes that this is the real possibility approach discussed in Pallos v. Insurance
Corp. of British Columbia, 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 319. The
plaintiff agrees that her future loss of earning capacity is not quantifiable
in a measurable way. She does not advance a claim on this basis.
[145] The second
approach is more appropriate where the loss, though proven, is not measurable
in a pecuniary way. The factors of relevance in this kind of assessment are
discussed in Brown v. Galey (1985), 26 B.C.L.R. (3d) 353. This is the basis
of the plaintiffs claim.
[146] At
paragraph 26 of Perren, Garson J.A. agrees that there must be a
substantial possibility of future income loss before one embarks on assessing
the loss under either approach to this head of loss.
[147] The
plaintiff has established that her present condition will continue for some
years, but there is no basis for concluding that her condition will become
worse.
[148] In the
years following the accident the plaintiff did not suffer a loss of income.
[149] The
defendant says it would be unusual to allow a claim relating to a loss of capacity
to earn income in the future when the plaintiff concedes she suffered no income
loss in the years following the accident.
[150] The
plaintiff submits that she never said that she did not have a past loss of
capacity. She says that what she said was that she did not suffer an actual
past loss of income that could be quantified. She submits that she continues to
have a loss of capacity to earn income, and that she is entitled to have her
claim for her loss of capacity to earn income in the future assessed and
allowed.
[151] Although I
do not disagree with the submission that some income earning activities are
unavailable to the plaintiff because of accident caused restrictions, Perren
holds that that by itself does not entitle the plaintiff to recover
damages.
[152] I have
concluded that the plaintiffs complaints and restrictions will decrease over
the next several years. The plaintiff can continue to do the kinds of work she
has done throughout her working career, albeit with discomfort, which has been
taken into account in assessing non-pecuniary damages. There is no substantial
possibility that but for the accident the plaintiff would have involved herself
in the physically demanding kinds of work the accident precludes her from
doing.
[153] In my
opinion, the plaintiff has not established that there is a substantial
possibility of future income loss, and her claim for loss of future earning
capacity must be dismissed.
Loss of Housekeeping Capacity
[154] The
plaintiff continues to be unable to do all that she could in her household
before the accident and all that she would be doing had the accident not
occurred. The plaintiff can do most of what she did before, but she continues
to require ongoing assistance.
[155] The
plaintiffs need for help in the household will decrease over the next several
years. However, she will require help in the future and she is entitled to
compensation for its cost.
[156] This loss
cannot be calculated with precision. It must be assessed.
[157] The
plaintiff will likely require outside help for a couple of hours a week for the
next five years or so, and less help thereafter.
[158] I assess
the plaintiffs claim for loss of housekeeping capacity at $30,000.
Cost of Future Care
[159] The
plaintiffs future care needs were assessed by Cris Rowan, an occupational
therapist. Ms. Rowan gave opinion evidence at the trial.
[160] A voir
dire conducted during the trial defined the breadth of the opinion evidence
that Ms. Rowan was permitted to advance. The voir dire canvassed
shortcomings in the methodology Ms. Rowan employed and it addressed the
reliability of her evidence.
[161] For
example, Ms. Rowan did not use formalized testing to assess the
plaintiffs limitations. As a result, there is no objective basis for review of
her opinions as to the plaintiffs limitations. Ms. Rowan did not have the
plaintiff complete written questionnaires. There is some uncertainty as to the
history on which she relied. Ms. Rowan agrees that there are errors in her
report.
[162] I have concluded
that Ms. Rowan assumed the role of an advocate for the plaintiff.
[163] Nevertheless,
Ms. Rowans report and evidence provides helpful information. She identifies
aids and props that I think should be made available to the plaintiff, and she
costs items out.
[164] I allow
the following:
Ergonomic equipment | $1,000.00 | |
Anti fatigue mats | $360.00 | |
Specialized home use chairs | $1,379.00 | |
| Memberships at local pools or | $2,250.00 |
| Personal fitness training | $500.00 |
| Allowance for hot patches | $500.00 |
I do not allow the claims for a special bed or for out- of-
town personal fitness training.
Summary
[165] The
plaintiff shall have judgment for these sums:
Non-Pecuniary Damages $
68,000.00
Special Damages $
5,990.82
Loss of Housekeeping
Capacity $ 30,000.00
Cost of Future Care $
5,989.00
Total: $
109,979.82
The plaintiff is entitled to recover court ordered interest
on the award for special damages.
Costs
[166] Unless
there is some reason that the parties wish to speak to costs, the plaintiff
shall recover costs on Scale B.
[167]
It is my opinion that it was reasonable for the plaintiff to obtain reports
from an economist and an occupational therapist.
_____________________________
Mr. Justice
S.J. Shabbits