IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110201

Docket: M074679

Registry:
Vancouver

Between:

Crystal Lynn
Edmondson

Plaintiff

And

Raymond A. Payer

Defendant

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

I. INTRODUCTION

[1]            
The plaintiff sustained soft tissue injuries in a motor vehicle accident
on November 9, 2005.  Five years later, the plaintiff says she still has frequent
neck pain and stiffness, as well as headaches, although she has remained
physically active and has experienced no significant loss of income.  The
defendant responds to this relatively small claim for damages with a full-scale
attack on the credibility of the plaintiff and the medical experts called on
her behalf.

[2]            
Neither the medical profession nor the court can measure or confirm the
existence of pain. Some accident victims may consciously or unconsciously
exaggerate their pain or become unduly focussed upon it.  It is therefore
well settled that where a plaintiff’s case relies on subjective symptoms with
little or no objective evidence of injury, the court must be “exceedingly
careful” in its examination of the evidence:  Price v. Kostryba (1982),
70 B.C.L.R. 397 at 399 (S.C.).

[3]            
However, in my view, it is equally the case that a defendant who accuses
a plaintiff of deliberate falsification−an accusation that effectively
amounts to one of fraud and perjury−must be prepared to present the court
with something more than speculation and innuendo.

II. THE
PLAINTIFF’S EVIDENCE OF INJURY

[4]            
The plaintiff, now 31, is a hairdresser.  The accident at issue
occurred while she was driving to work.  She was approaching an
intersection where she had the right of way and vehicles on the cross street
were controlled by stop signs.  The defendant’s vehicle entered the
intersection from the cross street and the plaintiff collided with it. 
Liability for the accident is admitted.

[5]            
The plaintiff testified said she was initially shaken up and did not go
to work that day.  It was not until that evening that she began to feel
stiffness and soreness in her neck and wrist and had a headache.
  She attended a walk-in clinic the next day and was advised to take
over the counter anti-inflammatory medication for pain and to continue with her
normal activities, including light exercise. The plaintiff does not recall if
she went to work the day after the accident, but says she must have at least
attempted to because the walk-in clinic is in the same shopping mall as the
hair salon where she works.

[6]            
The plaintiff saw her family physician, Dr. Lau, 11 days after the
accident and again in early January, 2006.  On Dr. Lau’s
recommendation, she had 12 physiotherapy sessions between late November 2005
and late March 2006.   She testified that the benefits of
physiotherapy did not last beyond the day of each treatment.

[7]            
The plaintiff testified that she did not think her long-time family
physician was taking her complaints seriously and she had been considering
finding a new doctor in any event.  Her counsel recommended
Dr. Iriarte, who she saw for the first time April 6, 2006.  The
plaintiff saw Dr. Iriarte again in May and October 2006 and saw an
associate of Dr. Iriarte on February 15, 2007.

[8]            
Over the next two years, the plaintiff saw various other doctors from
time to time for other matters and, according to the clinical records, did not report
any history or symptoms relating to the accident.  However, the plaintiff
said she continued to have neck pain and headaches of varying severity.

[9]            
The plaintiff was married in May 2007 and lived with her husband in
California for about eight months before the marriage ended in August 2008.
Following her return to British Columbia, she began seeing Dr. Iriarte
again in May, 2009 and, by the fall of 2010, had seen her on five more
occasions.  She had some further physiotherapy in 2009 and early 2010 and
chiropractic treatment shortly before trial.  Since returning from
California, she has clearly increased her therapies and has made more frequent
visits to Dr. Iriarte, but denied that she was “ramping up” her treatment
in preparation for trial.  She said she became frustrated with the
persistence of her symptoms and was more willing to “try anything.”

[10]        
The plaintiff said she continues to have neck pain and stiffness,
particularly in the morning, and headaches three or four times a week. 
She said there is no real pattern to her symptoms, with some good weeks and
some bad weeks.  Except for some initial improvement in the period
immediately following the accident, she testified her condition has remained
essentially unchanged.

[11]        
The plaintiff has maintained a high level of physical fitness.  She
works out in a gym at least three days a week,
although she said she does not do all of the same exercises as she did before
the accident.  She noted her neck pain and headaches are worse on days
that she does not begin with a morning workout.  She continues to take
non-prescription pain relievers and anti-inflammatories.

[12]        
In November, 2006, approximately a year after the accident, the
plaintiff participated in a fitness competition, which included a 90-second
dance routine.  Photographs of the competition indicate the plaintiff was
able to demonstrate considerable strength and flexibility.  I note here
that defence counsel obtained these photographs because the plaintiff herself
posted them on the internet.  She was clearly making no attempt to hide
her level of activity.  She testified she actually felt better while
training intensively for the competition, but she did not do well and has not
entered subsequent competitions.

[13]        
Before the accident, the plaintiff said she was an avid snowboarder, but
has only gone snowboarding four or five times since the accident.  She now
finds snowboarding painful and stated “the next day I am in the hot tub with a
lot of Advil.”

[14]        
The plaintiff also said she experiences anxiety while driving or riding
as a passenger in a car, particularly when the situation resembles that of the
accident.

[15]        
The plaintiff continues to work full-time as a hairdresser, although she
has adjusted her schedule to work a four day week and have three consecutive
days off.  During the workday she said she sometimes has to briefly stop
what she is doing in order to stretch and, when she has time, she sometimes
goes for a shiatsu massage treatment at a clinic in the same shopping
mall.  She testified she missed a total of about four days of work, not
consecutively, in the weeks following the accident, but no reliable records of
that absence have been produced.  Her income tax returns confirm that
there has been no reduction in income.

[16]        
The hair salon in which the plaintiff works is managed and partly owned
by her sister, Ms. Snelling, who said she often sees the plaintiff pulling
on her shoulder and neck, taking medication, or sitting at a shampoo sink with
her eyes closed and a towel on her neck.  Ms. Snelling said she saw
no such behaviour before the accident.

[17]        
Ms. Snelling also spends leisure time with her sister and sees her
in a home environment.  She testified that they sometimes go to the gym
together and, during exercise classes, she occasionally sees the plaintiff
avoid certain exercises.  At home, she said the plaintiff appears unable
to perform the heavier household cleaning tasks.

[18]        
The physical signs of injury have always been minimal.  The day
after the accident Dr. Robinson, the doctor at the walk in clinic, found
mild tenderness in the cervical muscles.  On November 21, 2005,
Dr. Lau found tenderness in the left trapezius muscle, no muscle spasm and
a full range of motion.  Dr. Iriarte said that when she first saw the
plaintiff almost five months after the accident, she noted that there was
tenderness in the cervical spine and that forward flexion and rotation of the
neck were impaired due to pain.

[19]        
In a medical report dated February 4, 2008, Dr. Iriarte stated that
the plaintiff was suffering from soft tissue injuries of the neck and related
headaches as a result of the accident.  At the date of that report,
Dr. Iriarte had not seen the plaintiff for more than a year. 
Dr. Iriarte provided a further report, dated September 27, 2010, based on
her subsequent contact with the plaintiff.  Her diagnosis was essentially
unchanged.

[20]        
On October, 4, 2007, the plaintiff was examined by Dr. Stewart, a
specialist in physical medicine and rehabilitation, at the request of her
counsel.  Dr. Stewart found increased muscle tension in both
shoulders and a slight restriction in neck rotation to the left. 
Dr. Stewart saw the plaintiff again two years later and found a full range
of motion.  In cross-examination at trial she described this as an
improvement from what had been a minor restriction in the first place. 
She said a normal physical examination does not mean an absence of pain.

III. CREDIBILITY

[21]        
In the absence of significant objective findings, Dr. Stewart and
Dr. Iriarte have both based their opinions on the symptoms reported to
them by the plaintiff.  The weight that can be given to those opinions
therefore depends on the court’s assessment of the plaintiff’s credibility and
on the consistency of her evidence at trial with the information she provided
to the doctors.

[22]        
Counsel for the defendant described the plaintiff as “litigation
focussed” and “claims conscious” and submitted she recovered from her injuries
long ago but “refuses to admit it while there remains the potential to improve
her financial position.”  I have some difficulty reconciling that
submission with another submission made by the defendant−that the long
periods during which the plaintiff sought no medical advice or treatment for
her injuries “point to her having recovered from her injuries and call into
question the reliability of her current complaints.”  One would think that
a plaintiff attempting to build evidence in support of a false or exaggerated
claim would make sure that self-serving complaints appeared frequently in the
medical records.

a) Clinical
Records

[23]        
Much of the defendant’s submission on the plaintiff’s credibility flows
from what is, or is not, found in the clinical records of doctors the plaintiff
has seen.  It is therefore important to review the limited purposes for
which clinical records are admissible.  It is easy to lose sight of those
limitations in cases of this kind, where the time spent parsing a single note
made by a doctor often far exceeds the length of the medical appointment that
the note records.

[24]        
Clinical records may be admissible as business records pursuant to
s. 42 (2) of the Evidence Act, R.S.B.C. 1996, c. 124
[Evidence Act], which reads:

(2) In proceedings in which direct oral evidence of a fact
would be admissible, a statement of a fact in a document is admissible as
evidence of the fact if

(a) the
document was made or kept in the usual and ordinary course of business, and

(b) it was in the usual and
ordinary course of the business to record in that document a statement of the
fact at the time it occurred or within a reasonable time after that.

[25]        
 In Olynyk v. Yeo (1988), 55 D.L.R. (4th) 294, 33 B.C.L.R.
(2d) 247 [Olynyk cited to D.L.R.], the Court of Appeal said at 300:

The words "to record in that
document a statement of the fact" mean, in our opinion,
that the fact occurred within the observation of someone who has a duty
himself to record it or to communicate it to someone else to record as part of
the usual and ordinary course of business.

[26]        
Section 42 of the Evidence Act therefore makes records admissible
to prove such things as a doctor’s direct observations of the patient’s medical
condition, the results of tests performed or ordered by the doctor, and the
medical advice given.  It eliminates the need for doctors to give oral
evidence of those facts, of which they are unlikely to have independent
recollection.  But as the court noted in Olynyk, this “does not
make everything in a document admissible just because the document is one which
for some purposes falls within the section.”: at 301.

[27]        
The principles governing the admissibility and use of clinical records
(and business records generally) were summarized by Burnyeat J. in McTavish
v. MacGillivray (1997), 38 B.C.L.R. (3d) 306 at 311-12 (S.C.):

1.  The notes taken must be made contemporaneously.

2.  The notes must be made by someone having a personal
knowledge of the matters being recorded.

3.  The notes must be made by someone who has a duty
himself or herself to record the notes or to communicate the notes to someone
else to record as part of the usual and ordinary course of their business.

4.  The matters which are being recorded must be of the
kind that would ordinarily be recorded in the usual and ordinary course of that
business.

5.  A statement in the records of the fact that a
certain diagnosis was made will be admissible.

6.  Recorded observations, diagnosis and opinions will
be admissible providing they are recorded in accordance with points 1 through
4.

7.  The fact that the referring doctor relied upon
another doctor’s opinion to assist in coming to his or her own diagnosis and
opinion is only evidence of that fact so that the other opinion does not become
evidence unless it is otherwise admissible. Accordingly, it is only evidence of
the fact that the referring doctor wished or required that opinion to be
received before forming his or her own opinion.

8.  Statements made by
parties or by experts which are recorded in the usual and ordinary course of
business but which lie outside the exception to the hearsay rule are hearsay
and will not be admitted into evidence unless they can be brought within
Section 14 of the Evidence Act which allows for the admissibility
of such statements if it can be shown that they are proof of a prior
inconsistent statement.

[28]        
The last point refers to the procedure for cross-examining a witness on
a prior inconsistent statement.  Section 14 of the Evidence Act
reads:

(1) Subject to subsection (2), if a witness, in cross
examination as to a former statement made by the witness relative to the
subject matter of the proceedings and inconsistent with the present testimony
of the witness, does not distinctly admit to making the statement, proof may be
given that the witness did in fact make that statement.

(2) Before giving the proof referred to in subsection (1),

(a) the
circumstances of the supposed statement, sufficient to designate the particular
occasion, must be mentioned to the witness, and

(b) the witness must be asked
whether or not the witness made the statement.

[29]        
Portions of clinical records that report statements made by the
plaintiff, including the plaintiff’s description of symptoms, are therefore
evidence of the fact the plaintiff made the recorded statements on those
occasions. Where the recorded statements are inconsistent with the plaintiff’s
evidence at trial, they may be used in cross-examination to impeach the
plaintiff’s credibility.

[30]        
Unlike prior inconsistent statements of an ordinary witness, which may
only be used to impeach credibility, prior inconsistent statements of a party
may also be treated as admissions and  accepted for the truth of their
content.  However, there are important qualifications that apply to such
statements in clinical records, whichever purpose they are being used for.

[31]        
In Diack v. Bardsley (1983), 46 B.C.L.R. 240, 25 C.C.L.T. 159
(S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308 (C.A.), McEachern
C.J.S.C., as he then was, referred to differences between the evidence of a party
at trial and what was said by that party on examination for discovery, at 247:

… I wish to say that I place
absolutely no reliance upon the minor variations between the defendant’s
discovery and his evidence. Lawyers tend to pounce upon these semantical
differences but their usefulness is limited because witnesses seldom speak with
much precision at discovery, and they are understandably surprised when they
find lawyers placing so much stress on precise words spoken on previous
occasions.

[32]        
That observation applies with even greater force to statements in
clinical records, which are usually not, and are not intended to be, a verbatim
record of everything that was said.  They are usually a brief summary or
paraphrase, reflecting the information that the doctor considered most
pertinent to the medical advice or treatment being sought on that day. There is
no record of the questions that elicited the recorded statements.

[33]        
When statements of a party are relied on for the truth of their content,
the authors of Sopinka, Lederman & Bryant, The Law of Evidence in
Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009) point out at
paragraph 6.398 that one rationale for the admissibility of such statements is
that “it is always open to the party to take the witness box and testify either
that he or she never made that admission or to qualify it in some other
way.”  The authors also emphasize at paragraph 6.413, that the whole of a
statement must be put into evidence:

Thus, if an admission contains
statements both adverse and favourable to a party and if an opponent tenders
it, he or she may thereby be adducing evidence both helpful and damaging to his
or her cause.

[34]        
The difficulty with statements in clinical records is that, because they
are only a brief summary or paraphrase, there is no record of anything else
that may have been said and which might in some way explain, expand upon or
qualify a particular doctor’s note.  The plaintiff will usually have no
specific recollection of what was said and, when shown the record on
cross-examination, can rarely do more than agree that he or she must have said
what the doctor wrote.

[35]        
Further difficulties arise when a number of clinical records made over a
lengthy period are being considered.  Inconsistencies are almost
inevitable because few people, when asked to describe their condition on
numerous occasions, will use exactly the same words or emphasis each
time.  As Parrett J. said
in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph
104:

…the reports are those of a
layperson going through a traumatic and difficult time and one for which she is
seeing little, if any, hope for improvement. Secondly, the histories are those
recorded by different doctors who may well have had different perspectives and
different perceptions of what is important. … I find little surprising in the
variations of the plaintiff’s history in this case, particularly given the
human tendency to reconsider, review and summarize history in light of new
information.

[36]        
While the content of a clinical record may be evidence for some
purposes, the absence of a record is not, in itself, evidence of
anything.  For example, the absence of reference to a symptom in a
doctor’s notes of a particular visit cannot be the sole basis for any inference
about the existence or non-existence of that symptom.  At most, it
indicates only that it was not the focus of discussion on that occasion.

[37]        
The same applies to a complete absence of a clinical record. 
Except in severe or catastrophic cases, the injury at issue is not the only
thing of consequence in the plaintiff’s life.  There certainly may be
cases where a plaintiff’s description of his or her symptoms is clearly
inconsistent with a failure to seek medical attention, permitting the court to
draw adverse conclusions about the plaintiff’s credibility.  But a
plaintiff whose condition neither deteriorates nor improves is not obliged to
constantly bother busy doctors with reports that nothing has changed,
particularly if the plaintiff has no reason to expect the doctors will be able
to offer any new or different treatment.  Similarly, a plaintiff who seeks
medical attention for unrelated conditions is not obliged to recount the
history of the accident and resulting injury to a doctor who is not being asked
to treat that injury and has no reason to be interested in it.

[38]        
The introduction of clinical records cannot be used to circumvent the
requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme
Court Civil Rules, B.C. Reg. 168/ 2009 [Rules].  A medical diagnosis−and the reasoning that led to the
diagnosis−is a matter of expert opinion.  Clinical records
are admissible for the fact that a diagnosis was made, but the court cannot
accept the diagnosis as correct in the absence of proper opinion evidence to
that effect.  Depending on the facts and issues in a particular case, the
mere fact that a diagnosis was made may or may not be
relevant.

[39]        
Clinical records may provide the assumed facts on which an expert may
offer an opinion, including diagnosis.  For example, statements made by
the plaintiff and recorded in clinical records at various times may be relied
on by a defence expert in concluding that the plaintiff’s current symptoms are
the result of a condition that pre-dated the accident.  That does not mean
that the court can itself use clinical records to arrive at a medical diagnosis
in the absence of expert opinion.

[40]        
Some of the defendant’s submissions must now be considered in light of
these principles.

[41]        
Counsel for the defendant asserted that the plaintiff reported her
condition honestly until March, 2006, when she began to report increased
symptoms of pain and headaches “for no apparent reason.”  Relying on the
records solely as evidence that the plaintiff reported the symptoms that are
recorded, I find there is no evidence of an inexplicable increase in reported
symptoms. The brief clinical notes made by Dr. Iriarte recording the
plaintiff’s subjective complaints in April, 2006, are not significantly
different from the similarly brief notes of Dr. Lau in November, 2005 and
January 2006.

[42]        
The only change in the clinical notes through that period is the reference
to headaches, which does not appear in the notes made in the days immediately
following the accident, but was noted by Dr. Lau in January, 2006. 
The plaintiff testified that her headaches began shortly after the
accident.  The fact that there are two early medical appointments that do
not record a complaint of headaches cannot, in itself, be taken as evidence of
whether the plaintiff was or was not experiencing headaches at that time. 
At most, it indicates that other symptoms were considered more significant−either
by her or by the doctor−on those dates.

[43]        
The defendant argued that the plaintiff had a pre-existing history of
chronic headaches.  The evidence in support of that suggestion consists of
two notes in Dr. Lau’s records indicating the plaintiff was complaining of
headaches in January and February 1998−almost 8 years before the accident
at issue.  Dr. Lau diagnosed those headaches as migraines. There is
no evidence of the plaintiff suffering headaches at any time in the interim period.

[44]        
In 2001, the plaintiff filled out a medical history form at a dentist’s
office in which she was asked to indicate whether or not she had ever suffered
from certain listed conditions.  One of those listed on the form was
“chronic headaches, neck pain or stiffness” and the plaintiff checked the “yes”
column.  Asked about that on cross-examination, the plaintiff referred to
the fact she previously had migraines.  She agreed that the document
referred to “chronic” headaches, but was not asked to clarify what her
understanding of that term may have been at the time.

[45]        
The question of whether the headaches the plaintiff now experiences are
of a nature and character consistent with those she had in the past and whether
they are a manifestation of some condition unrelated to the accident is clearly
one that calls for the application of medical expertise.  There is no
medical opinion evidence before me to support the defendant’s theory of a
pre-existing condition.

[46]        
The clinical notes of Dr. Lau record an initial diagnosis of a
“grade one soft tissue sprain.”  I did not permit defence counsel to lead
evidence from Dr. Lau about what she meant by a “grade one” sprain because
any further explanation of the diagnosis or the reasons for it would be expert
opinion, of which no notice required by Rules 11-6 and 11-7 had been
given.  The fact of the diagnosis, while admissible, would not permit the
court to conclude that diagnosis was correct in preference to expert opinions
that were properly before the court.  The fact of the diagnosis,
unsupported by proper expert opinion, was therefore of very little probative
value.

[47]        
Counsel urged me to find that the plaintiff recovered from her injuries
because there are some clinical records where the accident and resulting
injuries are not mentioned and that there are periods for which no clinical
records exist at all.  For the reasons set out in paragraphs 36 and 37
above, that is not an inference that can properly be drawn solely on the basis
of the records.

b) Conclusion on
Credibility

[48]        
I do not find a significant inconsistency or contradiction between the
evidence the plaintiff gave at trial and the very brief statements attributed
to her in the clinical records.  I also found the plaintiff to be a
generally forthright and credible witness.  Her evidence was internally
consistent and consistent with what little other evidence exists, such as the
evidence of her sister.  She did not appear to be exaggerating her
symptoms and she unhesitatingly admitted that she tries, as much as possible,
to not let her injury interfere with her lifestyle.

[49]        
The evidence does indicate that the plaintiff maintains a level of
physical activity much higher than might be expected of many, perhaps most,
individuals who have had the kind of injury at issue.  I am satisfied that
this reflects the very high level of fitness she enjoyed before the accident
and her efforts to maintain it as much as possible.  I also accept her
evidence that exercise helps reduce her pain and stiffness and note that in
remaining as active as possible she has followed the medical advice she has
received from the beginning.

[50]        
There is no evidence of any event other than the accident likely to have
caused the plaintiff’s symptoms.  Defence counsel suggested she could have
strained herself during a gym workout and that her headaches may be related to
work-related stress.  This is pure speculation unsupported by any
evidence. There is no evidence of the same or similar recreational or work
activities causing injury before the accident.

[51]        
I also reject the defendant’s submission that the plaintiff has
exaggerated her injuries “due to the influence of a number of older adults upon
whom she has relied for guidance in the past.”  This suggestion appears to
be based on no more than the fact the plaintiff retained counsel on the advice
and recommendation of her sister.  There is no evidence of any
inappropriate influence.

IV. The Medical
Opinions

[52]        
The only medical opinions before me are those of Dr. Iriarte and
Dr. Stewart.  The defendant presented no expert evidence.  The
plaintiff testified that at one point she saw Dr. Travlos, a physical
medicine specialist, at the request of defence counsel, but no evidence from
Dr. Travlos was put forward.

[53]        
Counsel for the defendant took the position that any opinion of
Dr. Travlos would be of little assistance because it would have to be
based on the plaintiff’s reported symptoms, which the defendant says are not
true.  The defendant certainly has the right to take that position and
assessment of the plaintiff’s credibility is clearly a matter for the court,
not the medical witnesses.  However, I would have expected to have heard
from Dr. Travlos if there was a purely medical basis for rejecting the
authenticity of the plaintiff’s symptoms, if he had identified possible
alternate causes of those symptoms or if he was of the view that
Dr. Stewart or Dr. Iriarte misstated or failed to properly apply
general medical principles.

[54]        
Dr. Stewart says in her first report that the plaintiff sustained
soft tissue injuries to her neck in the accident and had:

…ongoing neck, shoulder and upper
back pain and secondary muscle tension headaches resulting from that
injury.  Her symptoms have been aggravated by increased muscle tension and
by the demands of her job as a hair stylist, particularly the need to hold her
arms up for long periods of time.

[55]        
Dr. Stewart said that given the length of time symptoms had been
present, the plaintiff is likely to continue having “at least intermittent neck
pain and occasional headaches, with limitations with respect to more strenuous
work and leisure activities.”  Dr. Stewart said it is unlikely that
the plaintiff will be able to continue working as a hairdresser over the long
term.

[56]        
In her subsequent report, Dr. Stewart said the plaintiff was
reporting little improvement in her symptoms and, given the time that has
elapsed since the accident, these are likely to continue:

It is likely that she will
continue to require medication for pain over the long term.  She will
probably continue to be restricted with regard to heavier household tasks and
more strenuous and jarring recreational activities…

[57]        
Dr. Stewart said she did not make efforts to rule out other causes
because there was nothing to indicate the existence of other causes and the
reported symptoms were consistent both with the medical records and the type of
injury commonly suffered in similar circumstances.

[58]        
Dr. Iriarte’s opinion is similar to Dr. Stewart’s.  She
said the plaintiff “likely sustained a musculoligamentous injury to her neck to
upper back region which continues to cause her neck and upper back symptoms as
well as intermittent headaches.”

[59]        
During trial, the defendant sought to have the opinions of
Dr. Iriarte and Dr. Stewart ruled inadmissible on the basis that they
were biased and their opinions did not demonstrate the application of any
medical expertise.  I ruled that the opinions were admissible, subject to
consideration of the weight that should be given to them.  Before dealing
with the issue of weight, I will briefly re-iterate the reasons I gave for
ruling the opinions admissible.

[60]        
The defendant did not challenge the qualifications of either witness to
give opinion evidence within the area of her own medical specialty. 
Before arguing that the opinions were inadmissible, counsel fully
cross-examined each witness on the substance of and basis for her opinion.

[61]        
The admissibility of expert opinion is to be judged according to the
four criteria stated by the Supreme Court of Canada in R. v. Mohan,
[1994] 2 S.C.R. 9 at 20 and 21 [Mohan]:

Admission of expert evidence depends on the application of
the following criteria:

(a) relevance;

(b) necessity in assisting the trier
of fact;

(c) the absence of any exclusionary
rule;

(d) a properly qualified expert.

…

…Evidence that is otherwise
logically relevant may be excluded on this basis, if its probative value is
overborne by its prejudicial effect, if it involves an inordinate amount of
time which is not commensurate with its value or if it is misleading in the sense
that its effect on the trier of fact, particularly a jury, is out of proportion
to its reliability.  While frequently considered as an aspect of legal
relevance, the exclusion of logically relevant evidence on these grounds is
more properly regarded as a general exclusionary rule (see Morris v. The Queen, [1983] 2 S.C.R. 190). 
Whether it is treated as an aspect of relevance or an exclusionary rule, the
effect is the same.  The reliability versus effect factor has special
significance in assessing the admissibility of expert evidence.

[62]        
In this case, counsel for the defendant admitted that the fourth
criterion was satisfied.  The first three criteria are generally accepted
to be satisfied in cases of this kind.  In determining the nature, extent
and cause of a plaintiff’s injury, medical opinion evidence is usually relevant
and necessary and is an invariable feature of any case where those issues
arise.  Of course, the fact that such evidence is usually admissible is
not determinative of the admissibility of a particular opinion in a particular
case.  In R. v. Abbey, 2009 ONCA 624 [Abbey], leave to
appeal to S.C.C. refused, [2010] S.C.C.A. No. 125, the Ontario Court of Appeal
suggested a two step process for applying the Mohan criteria:

[76]      Using these criteria, I
suggest a two-step process for determining admissibility.  First, the
party proffering the evidence must demonstrate the existence of certain
preconditions to the admissibility of expert evidence.  For example, that
party must show that the proposed witness is qualified to give the relevant
opinion.  Second, the trial judge must decide whether expert evidence that
meets the preconditions to admissibility is sufficiently beneficial to the
trial process to warrant its admission despite the potential harm to the trial
process that may flow from the admission of the expert evidence.  This
“gatekeeper” component of the admissibility inquiry lies at the heart of the
present evidentiary regime governing the admissibility of expert opinion
evidence: …

…

[78]      It is helpful to
distinguish between what I describe as the preconditions to admissibility of
expert opinion evidence and the performance of the “gatekeeper” function
because the two are very different.  The inquiry into compliance with the
preconditions to admissibility is a rules-based analysis that will yield “yes”
or “no” answers.  Evidence that does not meet all of the preconditions to
admissibility must be excluded and the trial judge need not address the more
difficult and subtle considerations that arise in the “gatekeeper” phase of the
admissibility inquiry.

[79]     
The “gatekeeper” inquiry does not involve the application of bright line rules,
but instead requires an exercise of judicial discretion.  The trial judge must
identify and weigh competing considerations to decide whether on balance those
considerations favour the admissibility of the evidence.  This
cost-benefit analysis is case-specific and, unlike the first phase of the
admissibility inquiry, often does not admit of a straightforward “yes” or “no”
answer.  Different trial judges, properly applying the relevant principles
in the exercise of their discretion, could in some situations come to different
conclusions on admissibility.

[63]        
Although this “gatekeeper” analysis does require some direct
consideration of the content of the expert opinion in order to determine its
admissibility, the Court in Abbey stressed at paragraph 142 that trial
judges must be careful not to consider as issues of admissibility matters that
properly go to weight.  Indeed, the Court ultimately found that the trial
judge had erred in finding certain expert evidence to be inadmissible.

[64]        
Mohan and Abbey were both criminal cases.  While the
admissibility criteria apply equally to civil and criminal cases, there are
important differences in the procedure by which they are applied.  In a
criminal case, admissibility is determined on a voir dire, which may
include complete examination and cross-examination of a witness.

[65]        
The voir dire is not a normal feature of civil cases−certainly
not civil cases without a jury.  Instead, the party who seeks to tender
expert evidence must provide notice of that opinion in the form of a report
prepared and served pursuant to Rule 11-6.  That report is expected to
contain the complete opinion that is to form part of that party’s case and,
subject only to matters of explanation or clarification, the report is intended
to be the evidence in chief of that witness.  Any additional opinions or
qualifications to the original opinion are those elicited on cross-examination.

[66]        
The fourth Mohan criterion, that of the
expert’s qualifications, must be explored and ruled upon by the trial judge
before the opinion is put into evidence.  If there is an objection to the
admissibility of the opinion based on any of the other criteria, it will
usually arise on the face of the report and will also be argued before the
report is put into evidence and before the expert testifies on the substance of
the opinion.  The court may rule the opinion admissible or inadmissible in
its entirety, or may find some portions of the evidence to be admissible while
directing that other portions be expunged.

[67]        
Whether a particular issue or defect in an opinion goes to admissibility
or weight will not always be clear or immediately obvious.  As counsel for
the defendant agreed during argument, there is a continuum, ranging from issues
that may clearly render an opinion inadmissible to those that can only go to
weight, with many points in between that require a balancing of the relevant
considerations, or what the court in Abbey called the cost-benefit
analysis:

[92]      … As when measuring the
benefits flowing from the admission of expert evidence, the trial judge as
“gatekeeper” must go beyond truisms about the risks inherent in expert evidence
and come to grips with those risks as they apply to the particular
circumstances of the individual case.

…

[95]     
In many cases, the proffered opinion evidence will fall somewhere between the
essential and the unhelpful.  In those cases, the trial judge’s assessment
of the extent to which the evidence could assist the jury will be one of the
factors to be weighed in deciding whether the benefits flowing from admission
are sufficiently strong to overcome the costs associated with admission.

[68]        
In United City Properties Ltd. v. Tong, 2010 BCSC 111 [United
City Properties], Romilly J. reviewed the law, including Abbey, and
said that bias or potential bias may make an expert opinion inadmissible. That
case involved a dispute between neighbouring property owners.  A driveway
on the plaintiff’s property encroached onto the property of the defendant and
the plaintiff sought an order that either created a permanent right of way or
that conveyed title to the portion of property encroached upon.

[69]        
Both parties were making or planning improvements to or redevelopment of
their respective properties.  Each party had retained an architect for
purposes of design and development and they both sought to tender their
respective architects as expert witnesses.  Each architect therefore not
only had a direct business relationship with the party calling him, but
potentially a direct pecuniary interest in the outcome of the litigation. 
Nevertheless, after reviewing the law and considering the “cost benefit
analysis”, Romilly J. concluded that the evidence of both architects was admissible
“subject to weighing where they espouse any bias.”: United
City Properties at para. 69.

[70]        
In this case, the objections were based partly on what was or was not
contained in the reports and partly on matters raised during cross-examination. 
The introduction of issues raised on cross-examination, in my view, increased
the difficulty of identifying whether an issue properly goes to admissibility
or to weight because such evidence is usually subject to interpretation and
understanding in the context of all of that witness’s evidence.  While I
accept that an opinion that is apparently admissible on its face could be
rendered inadmissible by facts or admissions elicited on cross-examination, I
expect that would happen only in exceptional circumstances.

[71]        
 On the question of weight, counsel for the defendant correctly
characterized the medical opinions in this case as primarily a recitation of
what the doctors were told by the plaintiff, followed by an opinion, with
little explanation of how the opinion was arrived at.  That does not mean,
however, that there has been no application of medical expertise.

[72]        
The extent to which an expert’s methodology must be clearly expressed in
the opinion will always depend on the nature of the case, the type of expertise
involved and the purpose for which the opinion is tendered.  In this case,
the soft tissue injuries alleged by the plaintiff are, by their very nature,
not always susceptible to physical testing or analysis and the doctors must
rely on the subjective symptoms reported by the plaintiff, as well as on their
general medical knowledge and experience.

[73]        
In such a case, the effect of the expert opinion is really nothing more
than to confirm that the plaintiff’s reported symptoms make sense medically and
are consistent with injuries known to be caused by the type of trauma the
plaintiff experienced.  That opinion assists the court in drawing factual
inferences about the plaintiff’s injuries.

[74]        
The extent to which the court accepts the opinion and draws those
inferences depends, as I have already said, on the court’s assessment of the
plaintiff’s credibility.  I have found the plaintiff to be a credible
witness and find no significant discrepancy between her evidence in this court
and the information she gave to the doctors.

[75]        
The defendant said the doctors have made no effort to corroborate the
plaintiff’s complaints by reference to collateral evidence or to conduct a
sufficiently probing interview of the plaintiff.  That submission is based
in part on the comments of McEwan J. in Fan (Guardian ad litem of) v. Chana,
2009 BCSC 1497:

[16]      I have observed in other
cases that it is not part of doctors’ function to cross-examine their
patients.  On the other hand, I do not think it asks too much of medical
professionals who know their reports are going to be used in forensic contexts,
that matters that can be verified by objective evidence be verified.  The
cogency of medical reports erodes pretty quickly when, for example, someone who
plays on the school basketball team is otherwise described as seriously limited
in his or her physical capacities. …

[17]     
It is disturbing to find that a matter has come to trial on a costly series of
opinions, founded on premises that a rudimentary effort at fact checking would
reveal to be dubious.  It is not asking experts to trespass the
fact-finding responsibilities of the court to ask that they take some
responsibility for the soundness of the premises on which they proceed. 
It may be that disbursements for such reports ought to be more carefully
scrutinized for value, when bills of costs are taxed.

[76]        
Those comments were made in the course of a decision on costs in a case
where the plaintiff’s reported symptoms, on which some of the medical experts
relied, were found not to be credible.  The medical specialists referred
to appear to have been in possession of some of the information and records
that McEwan J. found to weaken the plaintiff’s credibility and some of that
material was referred to by defence experts. The comments cited can have no
application where, as here, I have found the plaintiff to be credible and the
defence has offered no contrary medical opinion against which the opinions of
the plaintiff’s experts can be weighed. They do not detract from the basic
principle, which McEwan J. restated in his earlier judgment on the merits of
the same case indexed at 2009 BCSC 1127, para. 73:

… As courts have observed on
any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately
reporting to them and then set about a diagnosis that plausibly fits the
pattern of the complaint.  In the absence of objective signs of injury,
the court’s reliance on the medical profession must, however, proceed from the
facts it finds, and must seek congruence between those facts and the
advice offered by the medical witnesses as to the possible medical consequences
and the potential duration of the injuries.

[Italics in original.]

[77]        
Simply put, the doctor’s job is to take the patient’s complaints at face
value and offer an opinion based on them.  It is for the court to assess
credibility.  Of course, if there is a medical or other reason for the
doctor to suspect the plaintiff’s complaints are not genuine, are inconsistent
with the clinical picture or are inconsistent with the known course of such an
injury, the court must be told of that.  But it is not the doctor’s job to
conduct an investigation beyond the confines of the examining room.

[78]        
The two doctors in this case are also said to be biased because of a
“close financial association with the plaintiff’s bar.”  Dr. Stewart
testified that her practice consists predominantly of providing medical legal
opinions and for that purpose she is usually retained by 
plaintiffs, rarely if ever by defendants.  Dr. Iriarte has
actively sought referrals of new patients from plaintiffs’ lawyers.

[79]        
In personal injury litigation, medical experts generally fall into one
of two categories.  Some become involved because they are directly engaged
in the medical treatment of the plaintiff.   Others are professional
witnesses−and I do not use that term in any pejorative
sense−who are retained by one party or the other specifically for
the purpose of providing an opinion.  In this case, Dr. Stewart is
clearly a professional witness.  Dr. Iriarte identifies herself as a
treating physician, although defence counsel challenges that characterization.

[80]        
The court must always be alive to the risk of bias inherent in both
types of medical evidence and counsel have cited examples of cases where both
types have had to be considered.  Treating physicians have a professional
commitment and duty to the interests of their patients, which may result in
them becoming advocates for the plaintiff rather than impartial experts.

[81]        
Professional expert witnesses are subject to a natural, usually
unconscious inclination to favour the party that has retained them.  That
concern is magnified by the nature and frequency of this kind of litigation,
which has created the unfortunate, but probably unavoidable, situation in which
some professional witnesses are usually seen as witnesses for plaintiffs while
others become known as regular witnesses for defendants.  This can create
a situation where a very large percentage, perhaps the majority, of a witness’
income depends on continued referrals from a particular insurer or segment of
the bar.  The court normally has no way of knowing the extent to which a
witness’s identification with one side or the other arises from the witness’s
own preference or from counsel’s selection process.

[82]        
But if the possibility or risk of bias was, in and of itself, a reason
to reject expert evidence, most personal injury cases would have to be
conducted without any medical opinion evidence at all.  That would
undoubtedly shorten trials, but it would leave the court with no basis on which
to make factual findings essential for resolving the issues between the
parties.  The role of the court is to determine the rights and liabilities
of the parties before it, not to declare the winner of a single strategic
battle in an ongoing war between the plaintiff and defence bars, or between the
plaintiffs’ bar and the insurer.

[83]        
In the adversarial environment of litigation, true and complete
objectivity is probably an ideal often sought but rarely achieved.
 Medical witness may come to a matter with certain biases or preconceptions,
but they have both a professional and a civic responsibility to put them aside
and provide a proper medical opinion based on the information given to
them.  In that regard, a witness who is aware of his or her biases and
preconceptions and makes a conscious effort to guard against their influence
may be more reliable than one who wrongly believes himself or herself to be
free of bias.

[84]        
 The task of the court is to ensure that, if bias exists or may
exist, it has not influenced or compromised the opinion that has been tendered
in the case before it.  That determination includes assessment of the
opinion’s consistency with other evidence and its reasonableness in the context
of all the established facts.  Of course, when a party alleges that an
expert opinion has been tainted by bias, the court will usually be in a better
position to consider, and perhaps accept that submission when the opinion can
be compared to a contrary, purportedly unbiased opinion.

[85]        
In addition to the general bias in favour of plaintiffs that both
experts are alleged to have, Dr. Iriarte is alleged to have an additional
bias because her husband operates a private clinic that provides MRI scanning
and is said to rely on business from plaintiffs’ lawyers.  When
Dr. Iriarte first saw the plaintiff, she referred her for a scan at that
clinic.

[86]        
The MRI did not reveal any abnormalities and Dr. Iriarte had no
reason to expect it would.  She testified that she thought a negative scan
would be useful to re-assure the plaintiff and reduce her anxiety.  She
agreed that the medical services plan would not pay for an MRI in such
circumstances and she knew that if a scan was obtained, payment would have to
come in some way through counsel and the litigation process.

[87]        
Dr. Iriarte denied any direct involvement in her husband’s business
or any detailed knowledge if it’s financial arrangements, but knows that it may
waive its fee for plaintiffs who do not ultimately recover damages.  There
is no evidence she had any specific knowledge of the financial arrangements
that may have existed between her husband’s company and the plaintiff or her
counsel in this case.

[88]        
At the opening of trial, I set aside a subpoena directed to
Dr. Iriarte’s husband, Mr. Cherniak, because any evidence he could
give about the nature of his business or its financial arrangements with the
plaintiff or her counsel would not be relevant to any issue other than that of
Dr. Iriarte’s credibility.  Admission of such evidence would
therefore be contrary to the well-known rule against calling evidence on purely
collateral issues.

[89]        
However, the situation is clearly one in which the plaintiff was
referred by her counsel to Dr. Iriarte and Dr. Iriarte arranged for an
MRI at her husband’s clinic, which could only be paid for through the efforts
of plaintiff’s counsel. That does not establish that Dr. Iriarte has a
direct interest in the outcome of the litigation, but it raises at least a
possibility of bias that the court must take into account.

[90]        
The question, as said above, is whether any bias that may exist has led
Dr. Iriarte to offer a false or unreliable medical opinion. I am satisfied
it has not.  That conclusion is based on a consideration of Dr. Iriarte’s
report in the context of all of the evidence, including her answers to
questions in cross-examination, the consistency of her opinion with that of
Dr. Stewart, and the fact that her opinion is not contradicted or
questioned by any other medical opinion.

[91]        
For all of these reasons, I accept the evidence of Dr. Stewart and
Dr. Iriarte.

V. Damages

a) Non-pecuniary
Damages

[92]        
The ongoing injury of which the plaintiff complains is a relatively
minor one and she has not attempted to suggest that it amounts to any
significant disability.  She has been able to continue working and remain
physically active, with some limitations and difficulties that did not
previously exist.  But, five years after the accident, she still has recurrent
pain and stiffness that, while not constant, is frequent and significant enough
to make her life less comfortable and less enjoyable.

[93]        
Counsel for the plaintiff relies on Cabral v. Brice, 2010 BCSC
197, Hunter v. Yuan, 2010 BCSC 1526 [Hunter] and Sharpe v.
Tidey, 2009 BCSC 948, which suggest non-pecuniary damages of between
$35,000 and $50,000.  Counsel for the defendant relies upon Wiest v.
Angus, 2001 BCSC 98, Davies v. Larabie, 2005 BCSC 1167 and Jensen
v. Felker, 2008 BCSC 541 as support for an award in the “high end” of the
$10,000 to $18,000 range.

[94]        
Each case must be decided on its own facts and on the basis of factors
such as those set out by the Court of Appeal in Stapley v. Hejslet, 2006
BCCA 34:

[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).

[95]        
Prior cases are a useful guide, but only a guide, in that
assessment.  Having said that, on the basis of the facts as I have found
them, the plaintiff’s situation is broadly comparable to those described in the
cases cited by her counsel, particularly Hunter, and I award
non-pecuniary damages of $40,000.

b) Past Income
Loss

[96]        
The plaintiff said that her take home pay for an eight hour day at the
time of the accident was between $100 and $150.  She believes that she
missed a total of four or five days work as a result of her injuries.  Her
recollection of the number of days missed is somewhat uncertain and she can no
longer recall any specific dates.  That is normal and understandable, but
in such circumstances the court is usually assisted by employment records. 
No reliable, contemporaneous records have been produced by the employer in this
case.  The defendant concedes that the plaintiff did not work the day of
the accident, when she had been scheduled to work six hours, and says damages
for past loss of income should be set at $100.  The plaintiff has not met
the onus of proving any loss beyond that and I can therefore award only $100
under this head of damages.

c) Loss of
Earning Capacity

[97]        
 Although the plaintiff has suffered no ongoing loss of income and
has continued to work at the same job she had before the accident, she seeks an
award for loss of future earning capacity.  Her counsel argues that she
has generally been rendered less capable of earning income from all types of
employment, is less marketable or attractive to future employers, is less able
to take advantage of all job opportunities and is less valuable to herself as a
person capable of earning income in a competitive labour market.  Those
are the frequently cited factors set out by Finch J., as he then was, in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (B.C.S.C.) [Brown].

[98]        
The Court of Appeal recently had the opportunity to review the cases on
this issue, including Brown, in Perren v. Lalari, 2010 BCCA 140 [Perren]. 
The differing approaches to assessment of damages that have been stated are not
inconsistent with one another or with the basic principles, but are only
applicable if the plaintiff first proves a real and substantial possibility of
a future loss.  The court said at paragraph 12:

These cases, Steenblok, Brown,
and Kwei, illustrate the two (both correct) approaches to the assessment
of future loss of earning capacity.  One is what was later called by Finch
J.A. in Pallos the ‘real possibility’ approach.  Such an approach may
be appropriate where a demonstrated pecuniary loss is quantifiable in a
measurable way; however, even where the loss is assessable in a measurable way
(as it was in Steenblok), it remains a loss of capacity that is being
compensated.  The other approach is more appropriate where the loss,
though proven, is not measurable in a pecuniary way.  An obvious example
of the Brown approach is a young person whose career path is
uncertain.  In my view, the cases that follow do not alter these basic
propositions I have mentioned.  Nor do I consider that these cases
illustrate an inconsistency in the jurisprudence on the question of proof of
future loss of earning capacity.

[99]        
At paragraph 32, the court in Perren said:

A plaintiff must always prove,
as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss.  If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown.  The former approach will be more useful when the loss
is more easily measurable, as it was in Steenblok.  The latter
approach will be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych.  A plaintiff may indeed be able to prove that there
is a substantial possibility of a future loss of income despite having returned
to his or her usual employment.  That was the case in both Pallos
and Parypa.  But, as Donald J.A. said in Steward, an
inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[Emphasis in original.]

[100]    
In this case there is a medical opinion, from Dr. Stewart, that
expressly states:

In my opinion, it is unlikely
that she will be able to continue hairdressing on a full time basis over the
long term because of her injury. In alternative work, she would have difficulty
doing sedentary work which required a lot of keyboarding because of her neck
and shoulder pain, and she would be unable to do more physically demanding
work.

[101]     In the absence of any contrary opinion, that evidence is
sufficient to establish a real and substantial possibility of future loss.
 However, I find that possibility to be a relatively unlikely one that, if
it occurs at all, will not likely occur until much later in the plaintiff’s
life.  I base that conclusion on the absence of any work interruption to
date and on the plaintiff’s demonstrated ability and determination to persist
in her activities.  The risk of loss is also offset by the possibility of
the plaintiff eventually moving into a more supervisory or managerial capacity
within the hair styling industry.  I award damages of $15,000 for loss of
earning capacity.

d) Special
Damages

[102]     The plaintiff seeks special damages of $1,378.24. 
These consist primarily of the cost of non-prescription medication, massage and
other therapies as well as some visits to a personal trainer, in which the
plaintiff said her exercise routine was adjusted to avoid pain.  I find
all of these to be reasonable and justified expenses that have helped the
plaintiff deal with her ongoing symptoms.

e) Cost of
Future Care

[103]     The evidence establishes that the plaintiff has an ongoing
need for some pain medication and at least occasional massage therapy,
physiotherapy and/or chiropractic treatment.  I am satisfied this need
exists as a direct result of the accident.  I also find there is a real
and substantial possibility that this need will continue well into the future,
although it is not possible to predict how long or to quantify the future need
with any precision.   Doing the best I can with the evidence before
me, I award $1,500 for the cost of this future care.

VI. Summary and
Conclusion

[104]     The plaintiff is awarded the following damages:

[105]    
Unless counsel need to speak to circumstances I
am not aware of, the plaintiff will have costs.

“N.
Smith J.”