IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Day v. Nicolau, |
| 2011 BCSC 490 |
Date: 20110418
Docket: M082902
Registry:
Vancouver
Between:
Kimberley Day
Plaintiff
And
Dragus Daniel Nicolau
Dragan Deni
Stancic
Defendants
– and –
Docket: M090647
Registry:
Vancouver
Between:
Kimberley Day
Plaintiff
And
Meghan Elizabeth
Mathias, Brenley Dale Raizen
Michael David
Miller
Defendants
Before:
The Honourable Mr. Justice Wong
Reasons for Judgment
Counsel for the Plaintiff: | J. M. Cameron D. W. Kolb |
Counsel for the Defendants: | R. Fister B. J. H. Crawford |
Place and Date of Trial: | Vancouver, B.C. February 7 – 11, 2011 |
Place and Date of Judgment: | Vancouver, B.C. April 18, 2011 |
Introduction
[1]
The plaintiff Kimberley Day, now 28 years of age, was involved in two
separate motor vehicle accidents: July 9, 2006 and February 8, 2007.
[2]
Liability was admitted by all defendants.
[3]
This trial was to assess damages.
[4]
The defendants did not seek apportionment of damages and was content to
have the court assess a global amount for both accidents.
The Background
Accident Number 1 – July 9, 2006
[5]
Ms. Day was involved in a motor vehicle accident in Burnaby on Kingsway
near midnight. She was a rear, middle-seat, restrained passenger (lap belt
only) in a Honda Civic vehicle. The vehicle was moving slowly as it approached
a stoplight. An oncoming car, out of control, impacted the Honda vehicle on
the drivers front side. As a result of the impact, both cars rotated and
there was a second contact.
[6]
Ms. Day was seated between two other people in the rear seat.
[7]
There was no loss of consciousness.
[8]
There was considerable damage to the Honda Civic and it was towed away
and written off. At the scene, Ms. Day recalled having immediate onset of pain
in the right side of her neck posteriorly. She also had right shoulder pain
and mid-back pain.
[9]
Following the accident, she took a taxi and went home. The next morning
she was aware of complaints on the right side of her body including neck,
shoulder, mid-back and low back. The following morning, she went to a walk-in
clinic and saw a physician who carried out a history and physical examination.
The following recommendations were made:
1.
Muscle relaxants.
2.
Physiotherapy.
3.
Massage therapy.
[10]
Ms. Day continued these treatments, she estimated, for about 6 to 12
months.
[11]
Just before motor vehicle accident number 2 on February 8, 2007, she was
experiencing the following:
1.
Right posterior neck pain – this pain had reduced in severity but was
still bothersome.
2.
Right shoulder – Ms. Day was experiencing ongoing pain in the right
shoulder and throughout the neck, associated with upper back pain.
3.
The complaint of low back pain was the most significant and Ms. Day said
her back hurt a lot.
Pre-Accident Employment
[12]
UBC Aquatics Centre – Ms. Day had been working at the UBC Aquatics
Centre as a lifeguard supervisor for three to four years. This was a part-time
job for 15 hours a week. She was, at the same time, a full-time student at
UBC.
Post-Accident Employment
[13]
Following the collision, Ms. Day took a few days off. She then
resumed her part-time activities as before.
Accident Number 2 – February 8, 2007
[14]
This accident occurred in Vancouver on 12th Avenue two blocks
west of Macdonald. Ms. Day was a restrained front-seat passenger in a vehicle
that had a road speed of 50 km per hour. The vehicle was a two-door compact.
While passing through an intersection, the other vehicle approached from the
left side and the Honda Civic could not avoid hitting the other vehicle in a
T-bone fashion on the passengers side.
[15]
At the point of impact there was no loss of consciousness.
[16]
Ms. Day did not come in contact with any part of the interior of the
vehicle. Emergency vehicles did not come to the scene of the accident. The
damage to the vehicle was minimal and it was driveable.
[17]
Ms. Day recalls having the immediate aggravation of all her previous
pains at the scene of the accident. She cannot recall when she got the
earliest medical attention. Nevertheless, she did return to the same walk-in
clinic and further treatment was declined. She was later sent to a kinesiology
for one-on-one personal training. She was instructed in a home exercise
program. This approach resulted in some improvement in her symptoms.
Current Accident-Related Symptoms
[18]
Headache: none.
[19]
Neck: Ms. Day stated that she still has pain on the right side of her
neck posteriorly. It is variable and she does no experience some pain-free
days.
[20]
Upper back: Ms. Day advised that the sensation she experiences in her
upper back is feeling fatigued.
[21]
Low back: Ms. Day stated that this is her worst problem. She underwent
a CT scan and was advised that she has pressure on a nerve. This was
apparently related to a complaint of occasional right leg radiation from the
hip down to the knee. Weakness in the right leg was denied.
[22]
Right shoulder: Ms. Day experiences daily pain in the right shoulder.
The pain in the right shoulder is precipitated or aggravated by sustained
overhead activity.
Current Employment
[23]
Ms. Day is currently living in London, Ontario and is employed by Tall
Tree Games and earning $40,000 – $50,000 a year.
Current Treatment
[24]
None.
Course of Convalescence
[25]
Ms. Day is of the opinion that her recovery from the soft tissue
injuries from both accidents has plateaued. She is experiencing symptoms still
but they come in waves and vary from day to day and week to week.
Leisure Activities
[26]
Ms. Day continues to enjoy swimming. She has, however, stopped her
activities as a lifeguard.
Past Health
[27]
Unremarkable.
Personal History
[28]
Ms. Day was born in London, Ontario. She completed high school. She
has a Bachelor of Arts in Film. She is single and has no dependents.
Employment Issues
[29]
Ms. Day enjoyed lifeguarding as a part of her swimming activities. She
has found that her physical complaints in her neck, shoulder and back are
barriers to her resuming her pre-accident activities as a lifeguard. Ms. Day
volunteered that she would have continued her lifeguarding activities but for
the motor vehicle accidents.
Household
[30]
Ms. Day lives alone and is independent; however, she does solicit help
for lifting heavy objects such as furniture.
Leisure Activities
[31]
In addition to swimming, Ms. Day is involved in yoga twice a week.
[32]
All the medical doctors who testified at trial either for the plaintiff
or the defendants were in agreement with their diagnosis and prognosis
concerning Ms. Day.
[33]
The most succinct opinion was that of Dr. Robert W. McGraw, an
orthopaedic specialist:
Orthopaedic Diagnoses
As a result of the motor vehicle accident of July 9, 2006,
Ms. Day sustained the following injuries:
1. Cervical
spine – musculoigamentous soft tissue injury not associated with neurological
impairment or fracture.
2. Thoracolumbar
spine – musculoigamentous soft tissue injury not associated with neurological
impairment or fracture.
As a result of the motor vehicle accident of February 8,
2007, Ms. Day sustained the following injuries:
1. Cervical
spine – aggravation of previous soft tissue injury.
2. Thoracolumbar
spine – aggravation of previous soft tissue injury.
Discussion
Neck
In the original accident of July 9, 2006, Ms. Day sustained
soft tissue injuries to her neck which were subsequently aggravated in the
motor vehicle accident of February 8, 2007 before the initial soft tissue
injuries resolved. Currently, she had made progress. There has been some
resolution of the painful neck condition. Ms. Day is now experiencing some
pain-free days. This is a good prognostic sign. The writer does not
anticipate there will be any long-term consequences such as the development of
post-traumatic degenerative osteoarthritis nor does the writer anticipate there
will ever be any need for surgery for any soft tissue injury that may have been
experienced in the neck and shoulder girdle as a result of either motor vehicle
accident of July 9, 2006 or February 8, 2007 or both.
Thoracolumbar Spine
Ongoing low back pain, by Ms. Days self-report, is her
principal problem. Investigation revealed early degenerative change at L4-5
level and intervertebral disc protrusion on the right side at L5-S1. It is the
writers opinion, based on the assessment of April 29, 2010, there was no
neurological abnormalities. That is to say, particularly in the right lower
extremity, there is no evidence of nerve root irritation, sensory abnormality,
reflex change, or weakness. In view of the abnormalities revealed on CT scan
at L4-5 and L5-S1, the prognosis for complete resolution of the low back is
guarded. Based on the present assessment, the writer does not anticipate there
will be any need for surgery for any soft tissue injury in the back that may
have resulted from either the motor vehicle accident of July 9, 2006 or
February 8, 2007 or both.
Causation
Ms. Day, prior to the motor vehicle accident of July 9, 2006,
was functioning at a high level physically. She was the head instructor at the
UBC Aquatics Centre (part-time) while, at the same time, attending to her
studies at the University of British Columbia. She denied any back symptoms
prior to July 9, 2006. Temporally, the onset of the low back pain was almost
immediately following the July 9, 2006 accident. It is the writers opinion
that the lumbar spine changes were either caused by the motor vehicle accident
or aggravated by it. The principal accident was July 9, 2006 while the
low-impact collision of February 8, 2007 appeared to aggravate what was already
an established complaint.
The long-term prognosis for complete recovery of the symptoms
in the low back remains guarded.
Future Treatment
If Ms. Day were to have any treatment in the future, the
writers preference would be that she not be involved in any passive treatment
modalities such as massage, acupuncture or chiropractic manipulation. The
writers treatment of choice would be a supervised active exercise program
preferably conducted by a university-educated kinesiologist or personal
trainer. The objectives of such a program would be to overcome deconditioning,
improve posture, improve core strength, improve cardiovascular fitness, improve
flexibility, improve endurance and education regarding spinal health and non-pharmacological
methods of pain relief such as stretching.
Ms. Day did have a session with a kinesiologist. She was
reported as being highly compliant and progress was made using this treatment
modality. If Ms. Day was to embark on such a program, the writer would
recommend a three to four-month program two to three times a week on a
one-on-one basis. Ms. Day should be given access to a proper exercise
facility. It would be prudent to review her exercise regimen three times a
year in order to determine the appropriateness of the program and also the
level of patient compliance.
Time Off Work
It is the writers opinion that the time taken off from work
was minimal and commendable.
Household Assistance
Ms. Day is currently living
independently and only requires occasional assistance with moving heavy
objects. It is the writers opinion that she does not require any additional
outside support for the maintenance of her domicile.
[34]
From the evidence Ms. Day sustained a soft tissue injury in the two motor
vehicle accidents. She has not maintained the exercise and core strengthening
regimen recommended by her treating doctors. Without proper back care, the
potential for flare ups and complications exist.
[35]
It is unclear what state of recovery function Ms. Day could have
obtained with proper back care and exercise. All doctors indicate in their
reports the importance of back care exercise. Though their prognosis is
guarded they seem to imply that with proper care there is still potential for
return to functionality with only intermittent flare ups.
[36]
Ms. Day had aspirations of a lifetime career in aquatics as a lifeguard,
swimming instructor, lifeguard instructor/trainer, first aid instructor and
trainer.
[37]
Lifeguarding requires stamina, body strength and physical flexibility.
[38]
After the second accident, Ms. Day sought light duty accommodation from
her superiors after experiencing a severe back spasm. She was given light and
modified duties consisting primarily of desk and administrative work and
assisting in the scheduling of pool programs and staff schedules. This
accommodation had no set time limit.
[39]
Eventually Ms. Day decided to leave the UBC Aquatic Centre over a work
scheduling issue conflict with her superior and left aquatics work. Had she
continued her accommodated employment at the aquatic centre, she could have
continued swimming to recover some core strength. Instead she chose to leave.
[40]
Since then Ms. Day has taken three jobs which require her to be in an
office setting, likely minimizing her likelihood or ability to undertake
additional contract aquatics work.
[41]
Ms. Day was secure in a full-time position at UBC and in a course
scheduling dispute with her superior chose to quit her position and cut all
ties to aquatics and contract work that she could have continued.
[42]
She then secured a position with the stroke association where her
earnings of $40,000 per year surpassed her earnings at UBC. She lost that job
unrelated to her injuries.
[43]
Her periods of unemployment were brought on by her rash decision at UBC
and then her poor performance at the stroke association.
[44]
She then secured a job with Tall Tree Games at an income of $40,000 to
start, which was then raised to $50,000.
[45]
These incomes clearly surpass what she could have expected in aquatics.
I see no basis for past income loss.
Other Damages
Non -Pecuniary Damages
[46]
Ms. Day is a 28 year old woman who has a chronic injury to her lower
back and related sacroiliac joint injury and a less serious lasting injury to
her neck and right shoulder. She has experienced pain, discomfort and some
limitations to enjoyment of her previous active life for almost five years and
her future condition is guarded.
[47]
I fix the non-pecuniary award at $50,000.
Past Wage Loss
[48]
For reasons stated previously there is no past wage loss up to the date
of trial.
Special Damages
[49]
Counsel agreed that Ms. Days out of pocket expenses were $925.
Accordingly the amount will be fixed at $925.
Impairment of Future Earning Capacity
[50]
The evidence is clear that as a result of her injuries and physical limitations
sustained from the motor vehicles accidents, Ms. Day will not likely ever
return to aquatics as an occupation but will continue in her present line of
work in administrative/managerial office type work giving her comparable income
to what she might have earned in aquatics.
[51]
After consideration of a recent Court of Appeal case of Perren v.
Lalari, 2010 BCCA 140, I think the appropriate approach in this case is
loss of potential earning capital.
[52]
This is a young woman with a long future working life of another 40
years. Her assets scope of different future employment possibilities has been
narrowed and diminished because of her physical limitations. Her marketable
ability to future employers is certainly less attractive. I am satisfied that
because of this diminishment there is a real and substantial possibility of
future income loss. I fix this loss on a lump sum basis of $45,000.
Cost of Future Care
[53]
All doctors agree that Ms. Day should have the benefit of a functional
restoration program as was described by Dr. McGraw. This would be three times
per week for six to eight weeks at $75 to $100 per session. I fix that cost at
$2,400.
[54]
There should also be provision for monitoring sessions and therapy
during flare ups for at least two years after the completion of the restoration
program at $1,200 per year.
[55]
The total then amounts to $4,800.
Conclusion
[56]
The awards are as follows:
Non-pecuniary damages $
50,000
Past Wage Loss $
0
Impairment of Future Earning
Capacity $ 45,000
Cost of Future Care $
4,800
Special Damages $
925
Total $100,725
[57]
If applicable the plaintiff is entitled to costs.
Wong
J.