IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110222

Docket: M074654

Registry:
Vancouver

Between:

James
Franklin Dempsey III

Plaintiff

And

Heon
M. Oh

Defendant

Before:
The Honourable Mr. Justice Myers

Reasons for Judgment

I.                
Introduction

[1]      On
March 31, 2007 the plaintiff, Mr. Dempsey, was riding his bicycle eastward on
16^th Avenue in Vancouver, when he collided with a panel van being
driven by the defendant.  In addition to scrapes and bruises, the plaintiff says
he suffered soft tissue injury which was so debilitating that he could not
perform his work as a real estate agent.  During the trial, the defendant
admitted liability and therefore this judgment concerns damages only.

[2]      Causation
is the central issue in this case.  Prior to the accident, the plaintiff had
pre-existing back problems, including bulging discs, which were symptomatic.  The
defendant says that this caused Mr. Dempsey’s problems after the accident, and
that the plaintiff has not been a credible witness with respect to his
condition both before and after the accident.

II.              
Facts

[3]      Mr.
Dempsey is currently 57 years old.  He was born in the United States.  His
father was a professional football player and Mr. Dempsey has been athletic and
concerned with his own fitness all of his life.  He played NCAA hockey for the
University of New Hampshire, where he graduated with an arts degree.

[4]      In
1993 – after, amongst other things, a career as a helicopter pilot – Mr. Dempsey
got his real estate licence while working at Block Brothers.  He developed
skills as a successful cold-caller.  In 1995 Block Brothers went bankrupt and
Mr. Dempsey moved to what is now called RE/MAX® Select working out of their
Arbutus Street office.

[5]      In
1999 or 2000 Mr. Dempsey began focussing on the seniors market.  He used
publicly available information to locate older owners of homes and cold-called
them in an effort to develop a rapport so that when they were ready to sell
their homes they would use him as their agent.  He recorded their information
in a database.  If a call became a “warm call”, namely one in which there was
some relation established, Mr. Dempsey would keep the name in the database; if
the potential client indicated they had no interest or it later transpired that
a person in the database had sold their home, they would be deleted.  This was
an ongoing process so that names were continually being added and deleted from
the database.  Geographically, Mr. Dempsey’s main market was the east side of
Vancouver, and secondarily the west side.

[6]      RE/MAX
agents keep 100% of the commissions they earn from any transaction, but RE/MAX charges
the agents a fee for services provided to them, such as office rental.  There
is no doubt – and the defendant does not dispute – that Mr. Dempsey was a
successful real estate agent and that he had the somewhat uncommon ability to be
an effective cold-caller.  Mr. Dempsey’s commission earnings in the year before
the accident were (rounded to the nearest thousand):

In
2006 Mr. Dempsey incorporated several companies and set up a family trust for
tax-splitting and income deferral purposes, and the figure for that year is the
aggregate of commissions generated by Mr. Dempsey’s efforts, not all of which was
paid to him.

[7]      For
2007, Mr. Dempsey generated commissions of $335,000.  He says that $221,000 of
that was earned – but not necessarily paid – before the accident.  In 2008 Mr.
Dempsey generated $98,000 and in 2009 $161,000.

[8] In his direct evidence, Mr.
Dempsey acknowledged that he had back pain and was taking pain medication before
the accident but he said there were no limiting factors to what he could do.  He
said he had occasionally been prescribed opioid pain medications, such
as Oxycontin® and Percocet®, and Tylenol® 3 by his family physician, Dr. Mintz,
which he used for aches and pains while playing semi-contact sports.  He
testified that he often did not require the full quantity of the prescriptions
and threw the excess away when it reached the expiry date.  He continued to
play hockey up to the time of the accident, except on occasions when he had a “minor
flare-up”.  He played tennis and soccer.  Mr. Dempsey also said that he
never took more than an hour or two off of work.  He reiterated several times that
he was not disabled from sports before the accident.

[9]      The
accident occurred on Saturday, March 31, 2007.  Mr. Dempsey was cycling in
the curb lane heading east on 16^th when the defendant’s van turned
right onto Camosun Street, cutting Mr. Dempsey off.  Mr. Dempsey hit the
van and remembers being flipped upside-down and ending up sitting in the middle
of Camosun Street.  An unmarked police car happened to be in the area and came
to assist.  Mr. Dempsey told them he did not need an ambulance.  His bike was
not rideable so he walked it home which was about 20 to 30 blocks away.

[10]    Mr. Dempsey laid down at home for the rest of the
day.  On Monday he went to see Dr. Mintz.  He said that Dr. Mintz noted
contusions on his elbow and knee and recommended an X-ray of the elbow which
showed no breaks.  Dr. Mintz prescribed pain medication which Mr. Dempsey took
in order to allow him to sit and work.

[11]    Mr. Dempsey said he was initially able to continue
to work but to “a lesser degree”.  His sleep patterns were disrupted from the
time of the accident, but from June to December Mr. Dempsey says he had to
sleep in a chair because he could not find a comfortable sleeping position in
his bed due to back pain.

[12]    In August 2007 Mr. Dempsey began physiotherapy which
had been recommended by Dr. Mintz sometime between the accident and April 30.  He
said by that time his pain was so bad he was willing to try anything.

[13]    By November 2007 Mr. Dempsey said he reached his low
point.  He asked for a referral for an MRI and rather than wait he paid to have
it done in a private clinic.  I discuss the MRI results in the next section of
these reasons.

[14]    Mr. Dempsey said that shortly after the accident he
reached the point where he could not make any telephone calls because of the
accident.  That prevented him from making new contacts and from keeping up
contact with those already in the database (“farming the database”).  He also
could not drive and do the other things necessary to deal with listings and
closings, such as putting signs out.

[15]    Mr. Dempsey had previously trained another agent –
Justin Leigh – who had moved to another agency.  However, they maintained a
working relationship which included referring clients when they had conflicts. 
For a period after the accident – it is not clear exactly when – Mr. Dempsey
forwarded his calls to Mr. Leigh so that Mr. Leigh could service his
clients.  Mr. Leigh and Mr. Dempsey both referred to several transactions after
the accident where they split commissions because of Mr. Leigh’s
involvement.  Mr Leigh said that in some instances Mr. Dempsey’s clients
would not want to deal with Mr. Leigh and went elsewhere.

[16]    Mr. Dempsey was asked in direct examination to
estimate his functionality or capacity after the accident.  He said that in
2008 he operated at one-third capacity; in 2009 he operated at 60% capacity; and
now he is now approaching 80% capacity.

[17]    Mr. Dempsey said that since the accident, he cannot
do any sports that involve torqueing, such as tennis, or high impact.  He
cannot play hockey.  He is now able to ride a stationary bicycle.

[18]    Mr. Dempsey’s wife testified as to their love of
sports.  She said that his back pain did not slow him down, however if it
bothered him he would rest for a couple of days.  After the accident, he went
into a slow decline and could not sleep when lying prone.

[19]    Mr. Dempsey’s manager at RE/MAX testified that she
saw him some time after the accident and he looked terrible.  Mr. Leigh said
that on one occasion he was acting “dopey”.

III.            
The medical
evidence

[20]    The records initially produced in this action from
Dr. Mintz began in 2001 and ended in November 2007.  Mr. Dempsey had complaints
of low back pain in November 7, 2001 and January 30, 2002.  One of these arose
from playing squash and the other from boxing.  There were numerous complaints
of low back pain throughout the entire years of 2004, 2005 and 2006, none of
which were said to have been triggered by any specific event.  In 2004 Mr. Demspey
complained he could not drive or sit.  In 2006 he complained of pain shooting
down the front and side of his right leg.

[21]    As a result of these complaints, Dr. Mintz
prescribed significant dosages of opioid pain medication.  He also referred the
plaintiff to an orthopaedic surgeon to consider back surgery, which was not
recommended.  In 2006 Mr. Dempsey was referred to Dr. Prasad at the McGavin
Sports Medicine Clinic for a review of options available to treat his back
pain.  He advised Mr. Dempsey to be careful with contact sports.

[22]    On March 22, 2004 an X-ray was done of Mr. Dempsey’s
lumbar spine and sacroiliac joints which showed early disc space narrowing from
the L2-3 to L4-5 levels and considerable degenerative disc disease at the L5-S1
level.  On July 12, 2004 Mr. Dempsey had a CT scan of his lumbar spine which
showed disc bulges at all but one level.  Mr. Dempsey underwent another CT scan
on July 26, 2006 which showed changes consistent with severe degenerative disc
disease.  The CT scans showed narrowing of the neural foramina (where the nerve
root exits the vertebrae) for the exiting lumbar nerve roots at several levels.

[23]    Dr. Mintz, on cross-examination, agreed that the
plaintiff suffered from serious and persistent back pain for years prior to the
accident.

[24]    The clinical records produced by Dr. Mintz before
the trial, which only went to up to November 2007, disclosed that Mr. Dempsey
had suffered from heroin addiction and substance abuse prior to the accident.  Dr.
Mintz’s note of April 7, 2004 indicated that the plaintiff was “off heroin
now” and the plaintiff, on cross-examination, confirmed that to be accurate.  Further,
in the context of being questioned in cross-examination about a notation in his
Day-Timer® for September 16, 2007, Mr. Dempsey denied that he was back
using street drugs at that point.

[25]    However, when Dr. Mintz took the stand, he brought
his entire file. (The initial non-disclosure of the full set of records was not
explained.)  It showed that Mr. Dempsey had undergone Rapid Opiate
Detoxification under Anaesthesia (RODA) in early 2010.  Dr. Mintz confirmed
this was a procedure to withdraw from heroin.  Dr. Mintz agreed under cross-examination
that he was aware of the plaintiff’s long-standing heroin addiction.  He also
agreed that in the two to three years before the plaintiff underwent the RODA
therapy, his heroin addiction was seriously impacting his relationship with his
family, his ability to function and his ability to function in his job.

[26]    Dr. Mintz stated that withdrawal from opioids can
cause sleep deprivation.  That is significant because Mr. Dempsey, who
acknowledged that he was addicted to the pain killers, stopped taking them from the end of June 2007 to March
2008.  That coincided with what he said was the worst period of his sleep
deprivation: above, para. 11.  Further, Dr. Mintz agreed that Mr. Dempsey stopped
taking the pain medications then because his back had improved.

[27]    The defendant provided a report by a radiologist,
Dr. Connell.  He was asked to compare the pre- and post-accident MRI and
CT scans.  His written report stated:

In summary, the CT and MRI
studies do demonstrate degenerative changes within the lumbar spine with disc
space narrowing which is most pronounced at the L5-S 1 level. There is disc
bulge at numerous levels this combined with degenerative change results in
narrowing of the neural foramina for the exiting lumbar nerve roots at several
levels. In directly comparing the 2004 CT study with the 2007 MRI study, there
is no significant change in the appearance of the disc herniations,
degenerative change or neural foraminal narrowing.

[28]    In his cross-examination Dr. Connell said that the
pre-existing narrowing of the foramina would make them more susceptible to
later injury.  However, he went on to say that it was likely that the
degenerative conditions in Mr. Dempsey’s spine would have caused him the very
pain that he complained of both before and after the accident.

[29] Dr.
Mintz provided a report on which Mr. Dempsey places great reliance.  (This and
Dr. Connell’s report were the only medical opinions adduced at trial.)  The
bulk of the report relays the history of the plaintiff’s visits with Dr. Mintz
from the time of the accident through to September 28, 2009.  The report is
dated October 8, 2009.

[30]    Dr. Mintz refers to over 27 visits by Mr.
Dempsey in his report.  The only time he mentions a physical examination with
respect to Mr. Dempsey’s back, or injuries relating to the accident, is the
visit on the Monday following the accident, when he noted a decreased range of
neck motion and prescribed Percocet.  In virtually every other visit subsequent
to the accident Mr. Dempsey was given a prescription for Percocet or another
opioid medication.  A visit on May 14, 2007 was with respect to a broken
metatarsal unrelated to the accident and Mr. Dempsey was prescribed an air cast
and more Percocet.

[31]    The Discussion and Prognosis sections of Dr.
Mintz’s report are as follows:

DISCUSSION

As a result of a motor vehicle accident the patient sustained
soft tissue injuries to his neck, lower back and right elbow. The right elbow
discomfort was resolved after a number of months however he has continued to
have lower back pain since the motor vehicle accident. The back pain had
originated with a disc bulging and the L4 – 5 space many years before the
accident. Most of that discomfort had resolved but flared up again following
the motor vehicle accident. He has followed the recommended treatment regime
consisting of physiotherapy, massage, exercises, heat, ice and analgesics and
muscle relaxants. With this regime he has slowly shown improvement. He works as
a realtor, as a result of the accident and his pain, therapy, and analgesics he
had a decreased ability to carry on working. He was unable to sit for long
periods of time. He was on analgesics for most of the time.

As a result of this he lost a lot of full-time work as well
as part -time work while he was recovering. As a result of this his income was
dramatically reduced. It is only now that he feels significantly better and
able to do his daily exercises and work longer hours.

PROGNOSIS

The ultimate prognosis for complete recovery from his
injuries is still guarded as he is still having treatment and is not back to
100% of his pre-accident physicality.

I am the author of this letter and solely responsible for its
content.

It is my feeling that it was the bike/motor vehicle
accident that accounted for his discomfort and disability since October 2007.

[Emphasis added]

[32]    Dr. Mintz explained that the reference in the
last sentence to October 2007 was a mistake; he meant to refer to March 31,
2007, the day of the accident.

[33]    As is often the case with soft tissue injuries,
medical reports, in part, relay and rely on what the patient has told the
physician of his symptoms and injuries.  However, in this case Dr. Mintz has
stated conclusions and opinions as his own that can only have
come from Mr. Dempsey, namely those attributing time off work and loss of
income to the accident.

[34]    There are further and more fundamental concerns
with Dr. Mintz’s report.  His statement (in the first quoted paragraph) that Mr.
Dempsey’s back pain had largely resolved before the accident cannot be
reconciled with Dr. Mintz’s clinical records or his prescriptions for pain
medications prior to the accident.  On April 19, 2006 Dr. Mintz noted that
Mr. Dempsey’s back pain had moved to his right leg and that he could not sit or
lie down.  Pain medication was prescribed on April 25, 2006, May 10, 2006, and
on June 27, 2006 when Dr. Mintz noted that a further CT scan was required.  In
July, August, September and October of 2006 further Tylenol 3s and opioids were
prescribed.

[35]    On December 7, 2006 – about 3 ½ months before
the accident – Dr. Mintz noted “still getting back pain”.  Dr. Mintz prescribed
60 Percocet and 60 Tylenol 3.  On February 14, 2007 Dr. Mintz prescribed
Percocet and Tylenol 3 again.  On March 14, 2007 – some two weeks before
the accident – Dr. Mintz again prescribed Percocet and Tylenol 3.

[36]    In his report, Dr. Mintz did not analyse or
address in depth the plaintiff’s pre-accident X-rays, CT scans or MRI.  In cross-examination
he said that it was an oversight.

[37]    This case called out for a careful and complete
analysis of Mr. Dempsey’s pre-existing conditions and their possible
relationship to Mr. Dempsey’s problems after the accident.  However, Dr. Mintz’s
one-line opinion that the motor vehicle accident “accounted for Mr. Dempsey’s
discomfort and disability since October 2007” is a conclusion without any
analysis.  It leaves more unsaid than was said.  That, together with the other
difficulties I have alluded to, leads me to conclude that I cannot put any
weight on the conclusion.

IV.           
Mr. Dempsey’s credibility

[38]    As Mr. Dempsey’s counsel acknowledged in
argument, Mr. Dempsey’s credibility is central to this case.  Having reviewed
the medical evidence, I will now comment on that.

[39]    Mr. Dempsey’s description of his condition prior
to his accident was contradicted by the clinical records of Dr. Mintz, the
cross-examination of Dr. Mintz and the cross-examination of Mr. Dempsey.  I am
mindful of the cautions with respect to the use of clinical records that N.
Smith J. helpfully summarised in his recent decision in Edmondson v. Payer, 2011 BCSC 118, which was released
after the case at bar was argued.  However, the differences between the
clinical records and Mr. Dempsey’s testimony are not minor; in fact, they are
quite glaring and significant.  Further, Dr. Mintz testified as to his
notations and Mr. Dempsey adopted them in his cross-examination.

[40]    It is apparent from the medical records and
evidence that Mr. Dempsey greatly downplayed his back problems prior to the
accident.  In his direct evidence, he described it as minor aches and pains.  When
confronted with his medical history he acknowledged that it was at times “excruciating”.

[41]    The description as “minor” also flies in the
face of the pain medications that he was taking.  In his direct examination Mr.
Dempsey said that he often threw away expired medication.  That evidence was
contradicted in cross-examination.

[42]    When Mr. Dempsey was cross-examined on his pre-accident
medical history, his constant response was to admit that he had had pain, but
that he was able to manage it with the pain medication and therefore function.  However,
even that was not correct.  On cross-examination, he agreed that the clinical
records of Dr. Mintz were accurate and include complaints of inability to
sleep, drive, sit and to stand on his right leg.

[43]    In his direct examination, Mr. Dempsey was
adamant that he played hockey up to the time of the accident.  However, on
cross-examination, when confronted with the medical records, he agreed that he
had given it up several years before the accident due to concerns about his
back.

[44]    Mr. Dempsey downplayed his use of heroin, and as
I said, he falsely stated that he had stopped using it in April 2004 (above,
para. 24).

[45]    Mr. Dempsey blamed the accident for his alleged near-complete
inability to work for an extended period after the accident.  However, he never
described why he could not use the phone to add to or farm his database and why
he could not drive.  Simply put, while Mr. Dempsey said he had pain he never specified
how it stopped him from being able to perform his job functions.

[46]    In the context of the defendant’s theory that
Mr. Dempsey was spending time running another business he had incorporated
rather than spending time on his real estate practice, he was cross-examined
closely on a frequently recurring cryptic entry in his Day-timer.  He said he
did could not remember what that referred to.  Given the number of times the
entry appeared that is not credible, whether or not it did relate to another
business project.

[47]    I do not find Mr. Dempsey to be a credible
witness.  There is no reason to believe that he was more truthful about what
occurred after the accident than he was about his condition before it.

V.             
Analysis and Conclusion

[48]    This is not a case of a plaintiff with asymptomatic
degenerative changes prior to an accident.  In this case, Mr. Dempsey suffered
severe back pain for many years prior to the accident and was on opioids to
relieve that pain.  It is up to him to prove that the accident caused or
contributed to a worsened condition.

[49]    I have concluded that Dr. Mintz’s report cannot
be relied on.  The only other medical evidence was that of Dr. Connell who testified
that Mr. Dempsey’s scans after the accident were the same as before and that
that condition would likely cause the pain complained of by Mr. Dempsey both
before and after the accident.  That is obviously not helpful to Mr. Dempsey’s
case.

[50]    The plaintiff’s case therefore hinges largely on
Mr. Dempsey’s evidence and I have found Mr. Dempsey not to be a credible
witness.

[51]    There is also Mr. Dempsey’s unexplained
cessation of pain medication from June 2007 to March 2008 by Mr. Dempsey.  If
he stopped taking the medication because his back was better, he can claim no
income loss or damages for pain and suffering for that time.  On the other hand
if his back was still bothering him and he stopped taking the medications and
was therefore unable to function, he was in the same position he was before the
accident: namely only able to function with the pain medication.

[52]    I have not ignored the evidence of Mr. Dempsey’s
manager at RE/MAX that on one occasion Mr. Dempsey looked horrible, and of Mr.
Leigh that Mr. Dempsey was dopey on another occasion.  But that can be
explained by a myriad of things, including Mr. Dempsey having ceased taking his
pain medication the withdrawal from which could cause sleep deprivation.  It
might also have been due to the use of heroin, but I need not make any finding
with respect to that.  On any analysis, that evidence is certainly not enough
to sway the burden of proof.

[53]    With respect to Mr. Leigh’s evidence about
concluding deals for Mr. Dempsey after the accident, even if that was
probative, the number of times it occurred was roughly the same as after the
accident.

[54]    Mr. Dempsey urges me to accept that there can be
no other explanation for his drop in income unless it was caused by the
accident.  I do not think that simple fact is sufficient to meet his burden of
proof.

[55]    I therefore conclude that the accident caused
nothing other than a mild whiplash and the contusions, for which I award Mr.
Dempsey $20,000.

[56]    As I have said above, Mr. Dempsey did not
explain why he could not use the telephone – his major tool.  He could also not
explain why he could not drive.  He was not a wage-earner or a time-biller with
a one-to-one relationship between hours expended and income earned.  Therefore
even assuming he suffered a minor whiplash, he has not demonstrated that the
accident caused any income loss or loss of earning capacity.

[57]    With respect to special costs, the pain medications
being claimed by Mr. Dempsey were being taken before the accident.  It has
not been shown why Mr. Dempsey could not wait to have an MRI done at a
hospital and I do not allow the cost for that.  Mr. Dempsey claims the costs of
an ergonomic chair, but that was something Dr. Mintz said he ought to have purchased
before the accident.  Mr. Dempsey claims the cost of a “bio-mat”, but that
is something that he heard might be beneficial from a friend of a friend.  There
is no evidence that it was medically reasonable or necessary or even objectively
beneficial.  Finally, Mr. Dempsey claims for physiotherapy but he did not
start that until some six months after the accident and I do not think he has
shown it was needed because of the accident.  Mr. Dempsey is entitled to
$629.96 for the replacement of his cycling clothing.

[58]    If offers to
settle have been made, costs may be spoken to if necessary.  Otherwise, the
plaintiff shall have his costs.

“E.M. MYERS, J.”