IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120130

Docket: M100887

Registry: Vancouver

Between:

Jacob Everett

Plaintiff

And

Eric D. Solvason

Defendant

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

[1]            
The plaintiff, Jacob Everett, claims damages for personal injuries
sustained in a motor vehicle accident which occurred on September 3, 2009. At
the time of the accident, the plaintiff was 40 years of age, unemployed and
living on his own in a home in Surrey, B.C. with his mother and step-father.
Liability is not in issue.

[2]            
On September 3, 2009, the plaintiff was driving his 1986 Toyota Camry
westbound on the 152^nd St. onramp to Highway 1. In the front
passenger seat at the time was his then girlfriend, Shirley Ann Elmourne. While
stopped waiting for traffic to start moving once again, Mr. Everett’s Toyota
was struck from behind by the defendant’s vehicle, a 2005 GMC Sierra Crew Cab
pickup, thrusting Mr. Everett’s vehicle into another vehicle in front of the Toyota.
It was then that the defendant’s vehicle struck Mr. Everett’s Toyota once
again.

[3]            
Prior to the initial impact and realizing his vehicle was about to be struck,
Mr. Everett braced his left foot for the impact. His evidence is that the
result of bracing his left foot was that it caused a twisting sensation in his
left knee upon impact. Mr. Everett stated at trial that he felt “no great
pain originally”, but within a few hours he felt pain in his left knee, neck
and back and also had pain in his left elbow. Later he felt increased pain in
his back and neck and increased knee pain.

[4]            
His evidence is that he was wearing his seatbelt at the time of the
accident.

[5]            
Two previous events caused injury to Mr. Everett which are relevant to
his claim for injuries arising from the accident of September 3, 2009.

[6]            
The first of those events was another motor vehicle accident which
occurred on May 16, 2008. At the time, Mr. Everett was sitting in the front
passenger’s seat in his mother’s vehicle and their vehicle was rear-ended on
the Knight Street bridge by a moving truck. The damage to both vehicles was
admittedly minor and Mr. Everett’s family doctor at the time, Dr. Sawatzky, referred
in his report of December 3, 2008 only to minor soft tissue injuries evidenced
by a stiff and sore upper and lower back, shoulders, neck and a headache. He
was prescribed Tylenol 3 and Flexeril, and advised to start active
rehabilitation therapy, which Mr. Everett did not pursue. Mr. Everett testified
that by the time of the September 3, 2009 accident, he was 90% recovered from
the minor injuries suffered on May 16, 2008.

[7]            
Initially his claim for personal injuries arising from the 2008 accident
was declined by the insurer but eventually the claim for pain and suffering was
settled for the sum of $15,000.

[8]            
Of more significance was an injury suffered by Mr. Everett while playing
softball at a tournament in Nanaimo over the August long weekend, just over a
month before the accident which is the subject of this litigation. The evidence
is that while running the bases and just after rounding third base, he realized
he would not be able to get home safely and stopped to turn back to third base.
On stopping, Mr. Everett’s words were that he “blew out his left knee”.
Swelling of the knee began very shortly thereafter, he experienced instability
in the knee and was also in considerable pain as a result. Mr. Everett
attempted to play softball again in mid-August but experienced some pain and
instability, especially while moving laterally. He promptly gave up playing
softball for the time being.

[9]            
Not long after the incident, Mr. Everett attended the King’s Cross
Medical Clinic where he was attended upon by Dr. Chemerika. Dr. Chemerika
undertook a brief exam and referred Mr. Everett to an orthopaedic surgeon, Dr.
Hicks, who he did not see until September 9, almost a week after the September
3, 2009 accident. Mr. Everett did not receive treatment for the knee
injury before the September 3, 2009 accident and stated that prior to the
accident, the swelling was reducing as was the pain in his knee.

[10]        
A major issue in this case arising from the September 3, 2009 accident
is whether the knee injury suffered while playing softball was aggravated in
the September 3, 2009 accident or was solely an injury resulting from the
softball incident.

General Damages

[11]        
I will now turn to the evidence of the injuries and the claim of Mr.
Everett for damages for pain and suffering arising from the September 3, 2009
motor vehicle accident.

[12]        
The claim is for an aggravation of Mr. Everett’s neck and back injuries
first incurred in the May 2008 accident, damages for aggravation of the left
knee injury suffered playing softball, headaches and as well his elbow injury,
the last of which had healed and was not causing any pain or suffering after 4
– 6 weeks. It is apparent that the elbow injury was very minor.

[13]        
The cause of the left knee injury and whether or not the injury was
aggravated in the motor vehicle accident has been a most controversial issue and
Mr. Everett’s credibility in describing this injury has been questioned. Firstly,
in a written statement provided to ICBC 6 days after the accident (Exhibit 7),
he stated: “As a result of this accident I suffered an aggravation of my neck
and back from a previous accident.” There was no mention of injury to his knee
as a result of the accident in that document. However, a second version (Exhibit
9) of this early statement was put to Mr. Everett on cross-examination on which
the typed portion contained identical words to those on Exhibit 7 but also included
handwritten words, following the above quote, which were: “Also injured elbow
and re-injured knee”. Both versions of this document were apparently provided
by Mr. Everett to his solicitors. There is no explanation as to how both
documents came into existence or how the handwritten clause was added to one of
the documents. Also there was an attempt to say Exhibit 7 was delivered in
error and that Exhibit 9 should have been delivered instead. Eventually both
documents appeared on the List of Documents prepared by Mr. Everett’s solicitors,
who stated that Exhibit 7 should not have been included on the list. The fact
is that both were produced, both were executed by Mr. Everett, both were
presumably intended for the eyes of an adjuster at ICBC and they are
inconsistent statements as to his injuries made shortly after the accident.
There is an inference that Exhibit 7 reflects the original statement of Mr.
Everett and Exhibit 9 was subsequently prepared with the added words regarding
his knee injury.

[14]        
As a result of the knee injury suffered playing softball, Mr. Everett
had been referred to see Dr. Tracey E. Hicks, an orthopaedic surgeon. Dr. Hicks
met with and examined Mr. Everett on September 9, 2009, six days after the
September 3, 2009 accident. At that appointment, Dr. Hicks only examined the
injured left knee and it was reported to him by Mr. Everett that “overall his
knee is gradually slowly getting better.” Dr. Hicks found that “He has a
completely ruptured ACL and he wished to discuss operations, which I did with
him”. After this appointment, Mr. Everett called back to advise he was getting
a second opinion and Dr. Hicks had no involvement with him after that day.

[15]        
Of interest in reviewing the report of Dr. Hicks (Exhibit 12) is that he
was told of the September 3, 2009 accident wherein Mr. Everett “said he injured
his neck and has headaches and is taking Tylenol 3 and is gradually
responding”. There was no mention of an aggravation or re-injury of the left
knee.

[16]        
During the fall of 2009 Mr. Everett received several chiropractic and massage
treatments, but no physiotherapy as pain in his back, neck and left knee
continued.

[17]        
Eventually on November 20, 2009, Mr. Everett found his way to
Dr. G. Parhar, a general practitioner with considerable experience in
the assessment and treatment of persons with soft tissue injuries. Following
the appointment, Dr. Parhar referred Mr. Everett for an MRI of the lumbar
spine and left knee which was carried out on December 4, 2009. Dr. Parhar
reported in a letter of November 25, 2010 that the results of those MRI tests,
carried out by Dr. Leipsic, “concluded that the lumbar spine had lumbar
spondylosis and the left knee had a complex tear to the medial meniscus and a
probable partial tear of the ACL (anterior crucial ligament). A small to
moderate joint effusion was also noted.” Dr. Parhar went on to state that as a
result of the collision on September 3, 2009, there had been an aggravation of
the left knee condition originally incurred  during the softball incident and
that Mr. Everett told him of increased knee pain following the collision of
September 3, 2009.

[18]        
Dr. Parhar then referred Mr. Everett to Dr. Chin, an orthopaedic
surgeon, who examined Mr. Everett on December 22, 2009. Based upon Dr. Chin’s
report of the same day, it appears as though Dr. Chin restricted his
examination to the damage caused to the left knee as there is no mention of the
other injuries. Dr. Chin did find a “Degenerative medial meniscal tear of the
left knee, horizontal cleavage complex component tear with a possible partial
tear of the ACL fibres.” The plan was to undertake surgery to repair the tear
to the medial meniscus.

[19]        
Following the appointment with Dr. Chin, Mr. Everett underwent surgery
on February 4, 2010 when Dr. Chin performed a left knee arthroscopic partial
medial meniscectomy of the left knee. Subsequent to the surgery, Dr. Parhar
stated in his report of November 25, 2010 that “With respect to his left knee
condition, he seems to have had some improvements with surgery.” Clearly, there
were improvements as in May 2010 Dr. Parhar cleared Mr. Everett for work. There
were no limitations noted in the type of work activities he could undertake. He
found work promptly, doing power washing at a large condominium project for a
Mr. Boos. That work included the use of long brushes to be held up against the
building, which required Mr. Everett to constantly look up during the washing
of the buildings. This activity resulted in some further pain to his neck. Mr.
Everett’s surgically repaired left knee did not appear to cause him any further
pain or suffering during the time he was involved working on this project. He
has subsequently been able to find further work, including contract work with other
employers, performing physically demanding work.

[20]        
In a second report dated November 30, 2011, Dr. Parhar made little
mention of the knee injury, stating: “With respect to his left knee condition,
he did not mention this on the last two visits, so I am led to conclude that
this situation has stabilized.” The last two visits he was referring to were on
June 20 and October 24, 2011. The last visit before those was on February 3,
2011.

[21]        
The defence called Dr. Brian Day, an orthopaedic surgeon, who never did
examine Mr. Everett but did review a great many reports and other documents
including medical records which were in evidence at this trial. He concluded
that the softball injury of July 30, 2009 was responsible for the injury to the
left anterior cruciate and medial meniscus, i.e. the left knee injuries. In
cross examination Dr. Day was clear that the accident of September 3, 2009 was
not the cause of the knee injuries, in that he said that these kind of knee
injuries are the result of a significant rotational movement in which the knee
pops, swells, bleeds and would be the main complaint of the injured party. According
to Dr. Day, the plaintiff having planted his left foot in anticipation of the
impact from the vehicle behind would not likely have caused these injuries. The
nature of the left knee injury is, however, consistent with the plaintiff’s
description of the softball incident. It is clear to me, especially from
Dr. Day’s evidence, that the cause of the knee injury was the softball
incident. However, he did say that the accident could have resulted in a
further tear of the medial meniscus originally torn in the softball incident.
In the circumstances, I find that the plaintiff likely suffered a minor
aggravation to the knee injury as a result of the September 3, 2009 accident.

[22]        
Regarding the extent of the injury, Mr. Everett’s mother, Mrs. Wendy
Pierce, gave evidence at the trial and reported that by mid 2010, Mr. Everett
had recovered significantly, and that he had returned to playing softball in
the spring. Mr. Everett testified that in this period of time he had recovered
by approximately 80-90% and was having “good days and bad days”, not unlike the
time period before the accident.

[23]        
Shirley Ann Elmourne, with whom the plaintiff had maintained a lengthy
relationship that ended in February 2011, testified that she never did observe
any swelling of his knee after the accident, that she observed him playing
softball on several occasions in 2010 and other than problems he was having
with his knee in one game, there was not much change in his activity level.

[24]        
As a result of this evidence, I find that Mr. Everett had recovered
significantly by the summer of 2010 and was able to undertake most activities
he had been engaged in prior to the accident of September 3, 2009 but for the
injuries sustained in the softball incident.

[25]        
Regarding the back and neck pain suffered by the plaintiff, the defendant
accepts that the plaintiff suffered a temporary aggravation of his pre-existing
chronic pain condition, originally caused by the impact of the 2008 accident in
which he was a passenger in his mother’s vehicle. Dr. Parhar found that the
plaintiff suffered paracervical muscle strain, paralumbar muscle strain and
muscle tension headaches arising from the accidents of May 16, 2008 and
September 3, 2009. Neither Dr. Chin nor Dr. Day commented on the neck and back
pain.

[26]        
I also note that the use of prescriptions for Tylenol 3, Naproxen and
another drug, two of which were for pain and one a muscle relaxant, fell off
significantly during 2010 and is consistent with the plaintiff’s claim that by
mid 2010 he was having some good days and some bad days. Likewise with the
chiropractic and massage therapy, these treatments fell off considerably after
the summer of 2010.

[27]        
Although the plaintiff continued to have some neck and back pain along
with headaches after the summer of 2010, the extent of those symptoms was
nominal after that time. I find that the plaintiff did suffer from neck and
back pain together with headaches as a result of the aggravation of
pre-existing injuries caused by the accident of September 3, 2009 for a period
of approximately one year.

[28]        
During the trial there was also evidence of events subsequent to the
accident of September 3, 2009 including an incident in the fall of 2009 when
the plaintiff was assisting his mother clear branches and sections of stump on
his mother’s property. That incident made clear that the plaintiff had no
serious back or neck problems at the time as he was undertaking physical work
voluntarily and carrying out that work. He did injure his back while lifting a
heavy section of branch or stump but the pain did not continue. Likewise, the
incident in a swimming pool in Vernon in 2011 has no connection to the damages
suffered in the accident. Finally, Mr. Everett was involved in three further
motor vehicle accidents in 2011, the last of which, in October 2011, was
serious and caused considerable damage, especially to his face, as a result of
hitting a power pole and being projected into the windshield of his automobile.
I find that these three motor vehicle accidents are not significant in the
assessment of damages as the injuries sustained in these accidents were not of
the same kind as those suffered in the 2009 accident.

[29]        
Turning to the quantum of general damages for pain and suffering, the
plaintiff seeks the sum of $60,000 while the defendant submits an appropriate
award for damages is in the range of $10,000 – $12,000.

[30]        
Of the authorities relied upon by the plaintiff, all judgments had
findings of injuries more significant and long lasting than my findings
regarding the injuries to Mr. Everett. The closest comparison of damage was in
the decision of Hutchinson v. Cozzi, 2009 BCSC 243, a decision of
Justice Williamson. At para. 25, the learned judge found “significant injury to
his neck, mid-back and lower back” and “the injuries were disabling for a
period of approximately six months, and continued on for some time thereafter,
limiting him to light forms of work.” Justice Williamson further found at para.
26 that “he is not completely recovered”, which was a finding made four years
after the accident. The learned judge awarded non-pecuniary damages of $40,000.

[31]        
The plaintiff also relied on the decision of Lawson v. Vu;
Lawson v. Kubo et al, 2000 BCSC 206, in which Madam Justice Baker found at
para. 82:

… that in future, the symptoms
of pain and swelling will probably increase, and that there will be functional
impairment of the knee due to arthritic changes in the knee. …

Further, Madam Justice Baker further
found:

… that the injury to the knee
did not cause the osteoarthritis to develop, but that it is more probable than
not that Mr. Lawson will experience acceleration of arthritic changes in the
left knee as a result of the trauma to the knee.

[32]        
By the time of the trial in that case, over five years had lapsed since
the accident. With the finding of a continuation of the pain and likely
acceleration of the pain and suffering in that case, the award of $85,000 was
appropriate, but the injuries were much more serious and not comparable to
those suffered by the plaintiff in the case at bar.

[33]        
In Niessen v. Sepulveda and Miller, 2008 BCSC 1567, the
plaintiff had claims arising from two motor vehicle accidents, both occurring
in 2004. Justice Savage found mild to moderate soft tissue injury of the
cervical spine and lumbar spine, and at para. 81 that the plaintiff in that
case would be:

… prone to ongoing muscular
discomfort in the neck and lower back in the future and it is unlikely that her
symptoms will settle altogether.

[34]        
Non-pecuniary damages were awarded in an amount of $55,000. Again, the
duration of the pain and suffering and the extent of the same in that case were
much longer than in the case at bar.

[35]        
The defendant referred to three decisions which are applicable. The
first of those, and the assessment of damages which I find is most similar to
the case at bar, is Morales v. Nielsen, 2009 BCSC 1890, a decision of
Justice Verhoeven. The learned judge stated:

[84]      … the plaintiff suffered from a mild soft-tissue
injury to the neck and left shoulder, which also caused him associated
headaches. The injury resulted in a recurrence on at least some occasions of
the plaintiff’s previous well-established problems with sleep.

[85]      There was very little interference with the
plaintiff’s activities of daily living, leisure activities, and work.

[86]      I find that the plaintiff currently has few if any
residual effects of the accident.

…

[90]      … I find that the
plaintiff’s injuries were substantially resolved within one year of the
accident at the latest, and any lingering complaints were minor. There is no
concern about any ongoing future effects of the motor-vehicle accident
injuries.

[36]        
In that case, an award of $11,000 was found appropriate for general
damages. Although in the case at bar there was some interference with the
plaintiff’s recreational softball activities, he did return to play in the
spring of 2010, once the season opened following the winter. Moreover, his
injuries had little effect on his daily living and, as I will point out below,
had little effect on his ability to work.

[37]        
Two other cases relied on by the defendant are applicable. The first is Dohla
v. Heft, 2011 BCSC 738, a decision of Justice Bruce in which she awarded
general damages amounting to $7,000 and $10,000 respectively to two plaintiffs
who were brother and sister. Regarding the brother, neck and back pain was
completely resolved by November 2010, some 18 months after the accident, there
was no treatment in the form of physiotherapy and the plaintiff’s lifestyle was
only marginally impacted by the injuries.  Those injuries resulted in the award
of $7,000. The plaintiff sister’s soft tissue injuries were more serious but after
six to nine months the pain was found not to be affecting her life in any
manner. The result was an award of $10,000. I find the injuries in this case
were less serious than those in the case at bar, but this case is still a good
yardstick for comparing the injuries for the purpose of assessing general
damages.

[38]        
The final case relied upon by the defendant was Hough v. Wyatt,
2011 BCSC 910, a decision of Stromberg-Stein J. (In Chambers). The learned
judge found no new injuries to the plaintiff save for damage to his wrist which
had been expected to clear up in two years but was still causing some pain,
aggravation of pre-existing neck, shoulder and back problems to a minor degree,
little effect on his life and within two months after the accident he had been
back at work. The award for general damages in that case amounted to $15,000.

[39]        
Considering the above cases, I find a reasonable award for general
damages for pain and suffering is in the amount of $15,000.

Wage Loss

[40]        
The plaintiff claims wage loss in the amount of $15,000.

[41]        
At the time of the accident the plaintiff was unemployed. He has a
history of work as a labourer but had previously fallen into problems with
drugs which had resulted in him spending several months in 2008 in a recovery
house. Starting later in 2008, after leaving the recovery house, he did work
for about six months driving a forklift until May 2009 when his employer went
bankrupt. During the first five months of 2009 the plaintiff had earned
$13,696.

[42]        
From May 2009 until the accident of September 3, 2009 the plaintiff
applied for several jobs, submitting a résumé online through an employment
website but met with no success. There is no other evidence of attempts on his
part to find work between May and September 3, 2009. The plaintiff gave
evidence that he was able to work following the accident up to December 12,
2009 but could not perform work which was physically demanding. That evidence
is corroborated by the evidence of Yvette Meyer, a Payment Service Officer
employed by Service Canada in Surrey, B.C. Ms. Meyer made notes of her
discussion with the plaintiff on December 18, 2009. Those notes were made
contemporaneously with the discussion and there is no reason to doubt the
accuracy of the notes. In reference to the September 3, 2009 accident, the
plaintiff told Ms. Meyer

… he was only sore for a few
days and so he didn’t declare any sick days. Client states that his back was
injured, but he decided himself that he was capable of working, but not doing
anything with heavy lifting. And so, he continued on regular benefits this whole
time and was applying for jobs he thought he would be capable of doing.

Later, the notes continued,

Client states he thought he was
capable of working until December 12, but now states he is too injured.

[43]        
The significance of December 12, 2009 is that it is the date it was
determined he would have surgery to repair the tears of the medial meniscus in
his left knee.

[44]        
That surgery was in fact carried out on February 4, 2010. Clearly the
plaintiff was not able to work after the surgery until late April or early May,
when he was cleared to return to work by Dr. Parhar. In mid-May 2010, the
plaintiff did find employment, firstly power washing a condominium, and
although he changed jobs, he continued to work on a contract basis doing
physical labour on ships including construction work and painting. There is
some evidence he missed two to four days of work in his first month of employment
due to soreness from the injuries sustained in the accident.

[45]        
The award for loss of wages should be nominal in these circumstances.
Firstly, there was little prospect the plaintiff would have found work in the
fall of 2010, even though he stated he was able to work at jobs which were not
physically demanding. Overall, considering the time off due to the surgery,
some time missed after commencing work in May 2010 and the plaintiff’s
difficulties in finding work irrespective of his injuries, an award of $4,000
is reasonable compensation for his loss of wages.

Special Damages

[46]        
The plaintiff’s claim for special damages includes costs incurred for
massage therapy, chiropractic treatment, prescription medication,
physiotherapy, miscellaneous expenses and a mileage claim for the cost of
travel to and from his appointments for treatment and are detailed in Exhibit
3. I agree with counsel for the defendant that as the plaintiff’s symptoms
continued for approximately one year, there should be a cut off date for the
expenses incurred by him and I so I have set September 1, 2010 as the cut off
date.

[47]        
Therefore, I find the plaintiff entitled to the costs of massage therapy
of $2,450, chiropractic treatment of $2,025, prescriptions of $335.49 (after an
agreed disallowance of some specific prescriptions), physiotherapy of $415,
miscellaneous expenses of $2,048.64 and travel costs of $500 for a total of $7,774.13.
I have included the invoice for $2,015 in the miscellaneous category for the
MRI procedure which had been ordered by Dr. Parhar, even though Dr. Hicks had
recommended against the procedure. My reasoning for allowing the same is that
Dr. Hicks had mis-diagnosed the knee injury as a tear to the ACL whereas the
actual injury requiring surgery was the tear of the medial meniscus. Ordering
the MRI was reasonable and justified.

Future Care

[48]        
Regarding future care, I make no award. Dr. Parhar’s report of November
30, 2011 makes it clear that future care and expenses related to the accident
are very unlikely.

[49]        
To conclude, I find the plaintiff is entitled to the following damages:

General damages
for pain and suffering                   $15,000.00

Wage loss                                                                $4,000.00

Special damages $7,774.13

Total                                                                       $26,774.13

[50]    The plaintiff is entitled to court order interest on
the awards for wage loss and special damages.

[51]    The defendant has had
substantial success in this matter, having regard to the matters that were in
dispute, specifically the quantum of non-pecuniary damages, so unless there
were offers to settle or other matters of which I am unaware, he will be
entitled to his costs in the usual way. If it is necessary, the parties may
speak to costs or address them by written submissions, as they prefer

“Jenkins J.”