IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Gron v. Brown, |
| 2012 BCSC 391 |
Date: 20120319
Docket: M95088
Registry:
New Westminster
Between:
Alicja Gron
Plaintiff
And
Melanie Selby
Brown and Desmond Kirkham
Defendants
– and –
Docket: M102419
Registry:
Vancouver
Between:
Alicja Gron
Plaintiff
And
Wilson Gordon
Godwin
Defendant
Before:
The Honourable Mr. Justice N. Brown
Reasons for Judgment
Counsel for Plaintiff: | G. Kehler |
Counsel for Defendants: | S. Kovacs |
Place and Date of Trial: | New Westminster, B.C. February 13 15, |
Place and Date of Judgment: | New Westminster, B.C. March 19, 2012 |
Table of Contents | Paragraph Range |
[1] – [16] | |
[17] – [35] | |
[24] – [24] | |
[25] – [35] | |
[36] – [49] | |
[45] – [45] | |
[46] – [49] | |
[50] – [92] | |
[50] – [64] | |
[65] – [92] | |
[93] – [109] | |
[110] – [110] |
I.
Background
[1]
The plaintiff, Alicja Gron, claims damages relating to two motor vehicle
accidents. The defendants admitted liability. The first accident occurred on
October 28, 2003, the second one on May 31, 2008. The plaintiff was 39 at the
date of the first accident, 44 at the time of the second accident, and 48 at the
time of February 2012 trial. Over eight years have passed since the date of the
first accident.
[2]
From the first accident, the plaintiff claims she suffered soft tissue
injuries to her neck, right shoulder and symptoms of headaches, sleeplessness
and depression. Although the plaintiff claimed a back injury at trial, the
pleadings make no mention of it. She claims non-pecuniary damages, including
loss of housekeeping capacity, although this was not pleaded either. For
pecuniary loss, she claims past and future loss of earnings, but did not
advance this at trial, and special damages.
[3]
From the second accident, the plaintiff claims she suffered:
(a) an
injury to her neck from the upper shoulder area to the base of her skull;
(b) the aggravation
of a pre-existing injury to her elbow; and
(c) pain in
her lower back radiating into her legs and knees.
[4]
As for damages from the second accident, the plaintiff claims the
following in her May 20, 2010 amended notice of civil claim:
(a) non-pecuniary
damages;
(b) loss of
housekeeping ability and capacity;
(c) loss of
earnings and earning capacity, past and future; and
(d) special
damages for medical treatment.
[5]
Both collisions involved low velocities. On October 28, 2003, the
plaintiff had stopped to let a pedestrian cross the street at a crosswalk painted
just before the southbound ramp that leads off Royal Avenue onto the Pattullo Bridge
in New Westminster, British Columbia. The defendant driver, Desmond Kirkham, then
struck the rear of her car, forcing it one meter forward.
[6]
Mr. Kirkham stated he had been driving his Plymouth Voyager minivan at
30 km/h in heavy traffic. He noticed the plaintiff had stopped, slammed on his
brakes and managed to slow to between 15 and 20 km/h before striking the rear
of the plaintiffs Honda vehicle. He described the damage to his minivan as minimal,
comprising only a scratch on the bumper.
[7]
The plaintiff said that she felt shocked at first and remained in her
car for several minutes until traffic behind her started honking their horns.
She later exchanged information with Melanie Brown, the owner of the vehicle
that struck her from behind.
[8]
By the time the second accident occurred on May 31, 2008, which was
about four and a half years after the October 2003 accident, the plaintiff said
she felt much better. That day, she was driving her Toyota Yaris, again in New
Westminster. She stopped at the pedestrian crosswalk at 8th Avenue and McBride,
waiting for a pedestrian to cross. As in the first accident, the plaintiff
alleges another vehicle, this time driven by a Mr. Godwin, struck the rear of
her vehicle. She says she had come to a full stop. Her foot was on the brake when
Mr. Godwins vehicle struck the rear of her Yaris. She acknowledged the force
she felt in the second accident was less than in the first accident.
[9]
At the time of the second accident, Mr. Godwin was driving his 1992
Oldsmobile Cutlass Ciera. He had been following the Yaris prior to stopping
behind it and leaving a gap of about one to one and one-half meters between the
two vehicles. He surmised he must have then relaxed his foot on the brake pedal,
such that he rolled towards and impacted the plaintiffs vehicle. When he got
out of his car after the impact to inspect the vehicles, he only saw a smear on
the right side of the plaintiffs bumper, but no damage to his car.
[10]
The defendants called two ICBC estimators, Mr. J. Hansen and Mr. J. Gali.
Following the May 31, 2008 accident, they examined damage to the plaintiffs
Toyota Yaris and Mr. Godwins Oldsmobile Cutlass Ciera.
[11]
Mr. Hansen, who examined the Yaris, noticed some minor damage on the Yariss
bumper cover and slight sheet metal distortion on the Yariss trunk lid.
[12]
Mr. Gali, who examined the Oldsmobile, found minor damage to the strip
moulding on its bumper. Mr. Godwin did not want to have it repaired.
[13]
Neither estimator looked under the bumpers for damage, which, they granted,
possibly could have been present.
[14]
Low velocity impacts are common. Defendants often question the
relationship between minimal vehicular damage and physical injuries claimed
after low velocity impacts. In the case at bar, neither of the estimators ventured
an opinion on the inherent potential for injury from the minimal physical
damage they found after examining the vehicles nor claimed the expertise to do
so, but as noted by Vickers J. at para. 15 in Kirsebom v. Russell,
[1995] B.C.J. No. 359 (S.C.), the defendants are entitled to argue in this or
any other case that, because there has not been motor vehicle damage, there can
be no injury.
[15]
Barrow J. endorsed this view in Makara v. Weihmann, 2005 BCSC 1757,
where he said at para. 7:
[7] I share this view. It
follows that the extent of the damages to motor vehicles involved in a
collision may well be relevant notwithstanding an admission of liability where
the remaining issues make it so. In this case, the issues include whether the
plaintiff suffered the injuries complained of in the accident or elsewhere.
They include an assessment of the extent of the injuries generally. The nature
of the collision is a relevant consideration in resolving these matters. It may
not be a significant consideration, but it remains a relevant one. …
[16]
The defendants question the credibility of the plaintiffs injury claims
and contest the nature and extent of the injuries she alleges. The plaintiff herself
acknowledged the force she felt in the second accident was significantly less
than what she had felt in the first one. She said she did not anticipate any
lasting symptoms from the second accident.
II.
Injuries following the october 28, 2003 accident
[17]
After the 2003 accident, the plaintiff said she experienced a cold odd
pain at the top of her head, which extended to the back of her neck and into
her right shoulder. She noticed it right away and found it hard to turn her
head to the right. Movement to the left was not that restricted. Soon after,
she noticed pain radiating from her head into her neck.
[18]
Although she also said she felt pain in her entire back, she
particularly noticed pain in her lower back above the beltline.
[19]
Because the plaintiff did not report back pain when examined for
discovery on September 11, 2008, the defendants challenge the truth of the plaintiffs
claim she experienced back pain following the 2003 accident. The defendants
also point out the plaintiff did not claim back pain in her pleadings and that
the attending physician at Royal Columbian Hospital did not note low back pain
in his clinical record of his examination. The family physicians notes for
November 3, 2003 and November 10, 2003 do briefly refer to back symptoms. I
find the plaintiff felt back pain following the first accident, but also find it
was not a prominent symptom.
[20]
The plaintiff said that when she returned from Royal Columbian Hospital
to her home in New Westminster, she felt pain all over and went to bed.
[21]
She received pain medications, including Robaxacet and Tylenol 3, which
she found gave her some relief. On referral of her family physician, she attended
12 physiotherapy treatments, starting November 19, 2003 and ending December 29,
2003. She found it unhelpful and medication provided only momentary relief.
Defence counsel points out, however, that on December 18, 2003, the plaintiff reported
to Orion Physiotherapy that she was feeling a lot better. The plaintiff balked
at counsels suggestion this was an accurate statement of her physical
condition that day, explaining her English was poor at the time, although she did
grant she could not say how she really felt then. She also granted that by
December 29, 2003, she was feeling a lot better than she had in the early weeks
following the first accident.
[22]
After the conclusion of her 12 physiotherapy sessions, ICBC refused to
fund further sessions beyond December 2003. She did home exercises for another
six months, by which time performing them had become such a habit for her that she
continued with them. Within a year following the first accident, the pain in
her head and her stiffness went away while her neck and upper and lower back
pain remained, though not as strong as before. With increased activity, the
plaintiff experienced a corresponding increase in pain.
[23]
By the time of the May 31, 2008 accident, she felt much better, but added
she never felt the same as she had before the October 2003 accident.
A.
Housekeeping
[24]
The plaintiff testified she had difficulty performing housekeeping
duties following the 2003 accident. She could dress herself and the children
but said she could not clean the bathroom or perform any heavy lifting. Her
husband and a neighbour, an unnamed Polish woman, assisted her for an estimated
eight hours per week for the first three months following the October 2003
accident. During this period, the neighbour performed all the shopping,
vacuuming and cleaning. After the initial three months, the plaintiff tried to
perform lighter activities, but this increased her pain. By the end of six
months, she performed all the housekeeping except vacuuming. She found washing
with her right hand caused her pain to return, as did washing sinks or lifting
heaving grocery bags. She dealt with this problem by having the groceries
packed into smaller bags. She said these various limitations persisted for one
year after the 2003 accident.
B.
Work and Educational Activities
[25]
The plaintiff trained as a dental hygienist in Poland but her
credentials found no acceptance in Canada.
[26]
Before the first accident, she stayed at home working as a homemaker. She
also looked after a friends young children as she continued to look for work
related to her dental training.
[27]
She also operated a hotdog stand owned by her husband for about three
weeks, working 18 hours a week, earning around $300 weekly. She did not record
her earnings and so had no records to present to the Court. She operated the
stand from about Labour Day in September until mid-October, while the children
were in school. She did not intend to continue operating it after October.
[28]
She also looked after the child of an acquaintance four days a week, as
and when needed, earning $5/hour and about $600 weekly. She did not record her
earnings. She did not plan to continue with child care as she was looking for
work related to a dental assistant course in which she had enrolled in the fall
of 2002. But apart from one brief period of employment with a dentist in
Metrotown, she had been unable to find a related position before the first accident.
The evidence regarding this employment opportunity was vague.
[29]
Beginning in March 2004, the plaintiff decided to train as a homecare
support worker. The coursework consisted of both classroom instruction and a practicum.
The last month of the course was devoted entirely to the practicum. Duties carried
out during training included helping mostly elderly clients dress, although the
work varied, including, for example, her taking a young handicapped client to a
restaurant. Equipment was available to assist in the transfer of patients
between locations such as a bed to a chair, and she could seek help from a
co-worker if necessary. In short, she was able to manage the training work. She
states that she still felt pain at that time, but because she was able to focus
on her job, she usually was able to perform her duties without noticing the pain.
With medication and her focusing on work, she was able to control the pain, and
did not notice it.
[30]
After she completed her homecare support worker course in October 2004, she
started permanent employment at Bayshore Home Health (Bayshore), by which
time she was 90% improved in terms of her injuries following the first accident.
[31]
Asked on direct examination about her hours worked during her time at
Bayshore, she said that she worked 35 to 40 hours weekly, earning $19.27/hour.
[32]
Defence counsel challenged the plaintiffs testimony to the effect that
she was effectively working full time at Bayshore. He pointed out that on
examination for discovery, she testified she normally worked in the range of
between 26 and 30 hours:
Q And was this a full-time job that you started?
A When I started I worked on-call and I would have
to go whenever they call me. So I didnt have a
lot of hours, but my whole day was blocked.
Q When you say your whole day was blocked you had to
be there ready to go in case you got a call?
A Yes.
Q Add at some point did it turn in to a full-time
job?
A Two years after that in May I apply for regular
position.
Q May 2006 or 2007?
A 2006. That was two years.
Q And did you get a regular full-time position?
A Yes, but with them the regular position is between
26 and 30 hours per week and with them I have
never had 40 hours per week.
Q Right. So even since you got a regular position
it has been between 26 and 30 hours per week?
A I couldnt really say that, because there were
situations there was some weeks that I would
get 35 hours.
[33]
The plaintiffs testimony on direct examination indeed left the
impression she effectively worked full time, i.e. 40 hours weekly, at Bayshore.
I find the plaintiff normally worked 26 to 30 hours weekly, occasionally worked
35 hours weekly and never achieved 40 hours, which corresponds to statements
she made at her examination for discovery. I find 30 hours weekly is a fair
representation of the hours she regularly worked, allowing for occasional overtime,
holiday shifts picked up and other additional hours that would have become available
to her from time to time.
[34]
I note that in 2005, the plaintiff and her husband separated. Despite
this, the husband continued to visit her, and on these visits, he vacuumed and
took the children on outings and to school.
[35]
I note the plaintiff was not able to produce a medical report regarding
the first accident. I understand the treating physician was not cooperative.
III.
Injuries following the may 31, 2008 accident
[36]
The plaintiff testified the second accident did not immediately affect
the mobility of her neck. Eventually, however, she did feel some pain in her
neck and back.
[37]
Immediately after the second accident, she returned home. By afternoon,
she noticed increased pain in her upper and lower back and neck.
[38]
I should note here that prior to the second accident the plaintiff
sustained an elbow injury at work. Although her statement of claim alleges the
second accident aggravated her elbow injury, I find the second accident did not
aggravate it.
[39]
Dr. Cieslak, the plaintiffs family physician at the time, saw the
plaintiff on June 2, 2008. She noticed tenderness in the plaintiffs neck with decreased
range of motion; likewise in the lumbar spine. She prescribed Naproxen and
continuation of Tylenol 3 and referred the plaintiff to physiotherapy. Dr.
Cieslak saw the plaintiff again on: (a) June 6 and 15, 2008, when the plaintiff
reported worsening of her back and neck pain and an inability to vacuum or
perform heavy housekeeping; (b) July 21, 2008, when Dr. Cieslak gave the
plaintiff a note stating she would be off work until August 3, 2008; and (c)
July 30, 2008, when the plaintiff evidentially advised her she had decided to
return to work on August 31, 2008.
[40]
The plaintiff sufficiently recovered from her elbow injury to return to
Bayshore by July 13, 2008. She says that but for the second accident, she would
have returned to work then. She eventually did return at the end of August
2008.
[41]
Dr. Cieslak performed her last physical examination of the plaintiff on
September 25, 2008, when the plaintiff reported more pain in her lower back,
especially in the evening. By then, her neck pain had improved.
[42]
Dr. Cieslak saw the plaintiff again on November 3, 2008, November 17,
2008 and December 17, 2008 for unrelated symptoms. On May 27, 2009, the
plaintiff reported she was doing well and had improved. Dr. Cieslak also saw
the plaintiff on June 17, 2009, again for symptoms unrelated to the 2008
accident.
[43]
On August 10, 2009, Dr. Cieslak spoke to the plaintiff so she could
prepare a medical-legal report at counsels request. Based on what the plaintiff
told her then and on her last physical examination of the plaintiff, performed
almost a year earlier, Dr. Cieslak opined the following in her September 1,
2009 report:
She was treated with non steroidal anti inflammatory
medication, physiotherapy, and exercises with some relief. She stated until
present she was not able to do any vacuuming, biking and heavy house work,
dancing and jogging. She stated she still needs help with shopping. The patient
was recently taking Tylenol PRN basis. Over all she stated that she improved
about 85%.
… Mrs. Gron suffered soft tissue injuries to her neck,
upper and lower back. As a result of her injuries the patient missed a few
weeks of work. And she was unable to continue with her leisure and sport
activities. Mrs. Gron had a significant improvement of her symptoms which are
still aggravated by physical work[.]
Prognosis for recovery is fairly good, however I do believe
that with more physiotherapy, massage therapy and exercises the patient will
improve more.
I do not anticipate a permanent
disability.
[44]
In her later September 27, 2011 report, Dr. Cieslak noted that the
plaintiff had achieved significant improvement of her symptoms but stated that the
plaintiff described continued difficulty vacuuming, biking and performing house
chores. Dr. Cieslak opined, given the passage of time since the second accident
and what she referred to as the medical literature, that patients who do not
recover fully from the accident related problems within a year from the
accident are unlikely to achieve full recovery past that time.
A.
Housekeeping
[45]
The plaintiff says that for about three months after the second accident
she was unable to do any heavy lifting, clean the bathroom or shop. Her husband,
from whom she was separated at the time, did these chores three days weekly and
she says he also helped her with shopping one day per week. By this time, her
eldest son was old enough to help her as well. She estimated that the husband
and son helped about nine hours weekly during this three month period.
B.
Other developments since the second accident
[46]
In 2010, the plaintiff moved to Toronto, which has a large Polish
community that consequently offered the plaintiff more social support than the
Lower Mainland. She was able to find employment at the Copernicus Lodge in
Toronto, a rest home where 90% of the residents are Polish. Instead of driving
to where the clients live, which was the case with Bayshore, she now works in
one location. Her duties require some heavy lifting, but there are always three
people available to assist her and she has been able to perform her duties
without interruption.
[47]
In March 2011, the plaintiff reconciled with her husband.
[48]
Currently, the plaintiff states that she occasionally experiences
flare-ups, but her exercises allow her to cope with them; and, when she feels
the need, she can deal with any increase in pain by using Advil, which she
takes about three times per month. I should note that the plaintiffs current
residual symptoms encompass both the first and second accident.
[49]
In summary, based on the plaintiffs account, she has made a very good
recovery from the injuries she allegedly sustained in the two accidents and she
now stands at approximately 90% of her functioning before the first accident.
She deals with occasional symptoms through exercise and medications. She is
able to perform all her duties at work without any interruption and I see no
basis for concluding anything other than that she is able to perform all her housekeeping
activities at present.
IV.
Position of the Parties
A.
The Plaintiff
[50]
In response to the defendants challenge to the plaintiffs credibility,
counsel points out that the plaintiff was a single mother for a good part of
the time following the first accident. She has pursued training, has found
employment and continues to work. He describes her as somewhat stoic and not
like those who blame all their troubles in life on the accident. He submits
the plaintiffs unexaggerated description of the second accident and her
expectation at the time that she should not have any lasting difficulties
supports her credibility, as does the fact, he submits, that she was involved
in another motor vehicle accident in 2004, when her husband was the driver. Counsel
further submits the fact she had a minor flare up of her injuries as a result
of this accident, but made no claim for damages, enhances her credibility. With
respect, I do not see that a persons decision regarding whether or not to make
a legitimate claim bears on their credibility. Advancing dishonest or frivolous
claims is another matter.
[51]
The plaintiffs position is that a suitable award for non-pecuniary
damages is between the range of $40,000 and $50,000.
[52]
For wage loss following the second accident, she submits $3,000 is appropriate.
This figure is based on a period of six weeks, with a range of 156 to 210 hours
and an average hourly wage of $19.27.
[53]
Between the two accidents, the plaintiff claims $15,000 for past loss of
housekeeping capacity and $7,500 for future loss of housekeeping capacity, for
a total of $22,500.
[54]
For assessing loss of housekeeping capacity, the plaintiff relied on Harris
v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 [Harris], wherein
Grauer J. assessed and calculated an award for past loss of housekeeping
capacity of $17,500 from an hourly rate of $22, based on four hours weekly and ten
months annually.
[55]
Grauer J. had before him the evidence of an occupational therapist who commented
on the plaintiffs care needs, as well as evidence of a suitable hourly rate
for the cost of housekeeping. Counsel for the plaintiff submitted that if there
was similar evidence of housekeeping limitations in the case at bar, I could
then confidently adopt the hourly rate used in Harris. I do not find that
submission sound. The nature of the services, the location where they are
required, the level of skill required, the total number of hours involved in a
week, and a wide variety of circumstances can produce a variety of fit hourly
rates for housekeeping services.
[56]
In the case at bar, the plaintiff testified she was not able, for a
period of time, to vacuum, lift anything heavy, wash the tub and so on. These
are relatively straightforward housekeeping activities. Further, I note that
the plaintiffs husband was unemployed and at home for most, if not all, of the
period following the first accident. I find the evidence on what duties he
performed before vs. after the first accident unsatisfactory. As stated in McTavish
v. MacGillivray, 2000 BCCA 164 [McTavish], when family members
provide free labour in the form of housekeeping to replace labour costs the
plaintiff would otherwise have incurred, or lose income or incur costs
themselves, the court may compensate the plaintiffs loss of capacity by
valuing either the cost of replacing the labour or by valuing the family
members lost opportunity. Where the evidence permits a replacement cost or
loss of opportunity award, the court should apply that approach. Otherwise, if
the court finds the evidence does not permit the structuring of an award based
on replacement costs, but does support a finding the plaintiff has suffered a
loss of housekeeping capacity, the court may award an assessed amount as a
separate component of non-pecuniary damages to compensate the reasonable need
of the plaintiff for housekeeping help during the period before trial: McTavish,
at para. 70. Also see Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178
(C.A.); Basi v. Buttar, 2010 BCSC 9; and Hussain v. Cho, 2012
BCSC 194.
[57]
For non-pecuniary damages, the plaintiff relies on Travis v. Kwon,
2009 BCSC 63 [Travis]; Mayenburg v. Lu, 2009 BCSC 1308 [Mayenburg];
Zawadzki v. Calimoso, 2011 BCSC 45; and Fiorda v. Say, 2011 BCSC
1293.
[58]
In Travis, the 34-year-old plaintiff with a Master of
Occupational Therapy was involved in two motor vehicle accidents separated by
about one year, the second one minor and the first involving damage to the
plaintiffs written off Jeep. Concerned her injuries prevented her from safely
assisting her patients in transfers from bed to chair or in activities such as
bathing or using the toilet, the plaintiff looked for lighter work. By the time
of the second accident, she was beginning to adapt to her injuries and manage
her pain. The reasons do not include much detail about the nature of the
plaintiffs injuries, the trial judge having commented on the lack of detail
normally expected, but it appears they involved soft tissue injuries to the
plaintiffs neck and low back.
[59]
I find it difficult to make a fair comparison between the plaintiffs
injuries in the case at bar and the plaintiff in Travis. But I note that
the plaintiffs testimony in Travis sufficiently impressed the trial
judge to dispose him to award $35,000 for loss of income to the date of trial,
$30,000 for loss of earning capacity, $12,575 for cost of future care, and special
damages of $11,800. I do not find the plaintiffs circumstances in these
proceedings comparable to those of the plaintiff in Travis.
[60]
In Mayenburg, Myers J. awarded the plaintiff $50,000 for
non-pecuniary damages. The plaintiff was a 20-year-old student at Douglas
College working part-time as a cashier. The force of the collision propelled
her vehicle forward two car lengths. Following the accident, she complained of
pain in her neck and shoulders, upper and lower back, nausea and headaches. She
felt uncomfortable during the first two weeks of school and experienced
difficulty carrying her backpack and sitting. The back pain she experienced
while studying did not affect her marks.
[61]
Because the plaintiff in Mayenburg found constant standing hard
on her back, a few months after the accident she gave up her part-time job. She
had six physiotherapy sessions through September 2007. In March 2007, because
she found standing and repetitive actions aggravated her back pain, she quit another
part-time job in a deli. This was just a month after she had started that
position.
[62]
By May 2008, about four months shy of the second anniversary of the
accident, the plaintiff was still suffering neck and back pain. But she was
able to work as a server. Although she continued to suffer discomfort in her
upper and lower back, her preferred recreational activities, such as hiking and
dancing, were little affected, although horseback riding and gardening were.
The trial was in September 2008, two years after the accident.
[63]
Counsel relied on para. 36-37 of Mayenburg, where Myers J.
rejected the defences challenge of the credibility of the plaintiff based on
the limited number of times she had visited physicians complaining about pain.
Myers J. found her complaints to physicians were not so minimal as to diminish
her credibility.
[64]
I do not find this case comparable to the case at bar.
B.
The Defendants
[65]
Defence counsel points out the plaintiff must prove causation, the duration
of her injuries, her loss of income and prove the accidents diminished her loss
of housekeeping capacity as claimed. He submits $22,500 is a large sum for loss
of housekeeping capacity, especially absent objective evidence. Counsel notes the
plaintiff is claiming around 1100 hours at a rate of $22 per hour.
[66]
Defence counsel also submits the plaintiffs testimony in several areas undermined
her credibility.
[67]
First, he points to the contrasting version the plaintiff gave on direct
examination on the number of hours she worked per week at Bayshore, compared to
her testimony on examination for discovery and cross-examination at trial. He argued
her sworn evidence on examination for discovery was very clear; full time in
her case meant 26 to 30 hours. He further submitted her evidence in this regard
was confused and not believable. He points out that the plaintiff showed she
understood English well and at one point was responding to questions on examination
for discovery before hearing the Polish translation.
[68]
Second, on the plaintiffs claim for lower back pain, defence counsel
notes she never mentioned this injury on examination for discovery. He submits
that if her alleged back pain had been truly troublesome, she would have mentioned
it as an ongoing problem. He points out, as well, that the plaintiffs
pleadings make no mention of lower back pain.
[69]
Third, defence counsel challenges the plaintiffs credibility in relation
to the nature and extent of her claim for loss of housekeeping capacity. He
points out that the plaintiffs residence is a two-bedroom apartment, and that,
at one point in her testimony, the plaintiff stated she normally devoted three
hours weekly to clean it. But the plaintiff also testified that following the
first accident she required housekeeping assistance of approximately eight
hours weekly; and, following the second accident, one more hour, amounting to
nine hours weekly. Defence counsel questioned the jump from eight hours to nine
hours as between the two accidents; and most significantly, from three hours
when she was doing it herself before the first accident to nine hours after the
second accident.
[70]
Fourth, on the duration of the plaintiffs injuries, counsel pointed out
that after the first accident, the plaintiff said her head pain went away within
a month, her neck and shoulder had improved within a month, and that by
December 2003 she had reported to Orion Physiotherapy that she was feeling a
lot better. Counsel submitted that the plaintiffs distancing of herself from
this remark was not credible.
[71]
Counsel for the defendants further points out that by the time the
plaintiff had started working at Bayshore in December 2004, she agreed she was
90% recovered and usually worked with no pain, performing many of the same
housekeeping duties she would have had to perform at home.
[72]
On the degree of the plaintiffs recovery from the second accident, counsel
points out that in 2011, the plaintiff told Dr. Cieslak she was 85% recovered.
Counsel also points out that November 2008 is the last month Dr. Cieslaks
records mention back or neck pain.
[73]
The defendants submit the plaintiff seeks, in effect, an award for
chronic pain dating back to 2003. He submits the plaintiffs weakened
credibility is fatal to a claim of this nature, particularly as it is
unsupported by any medical report covering her injuries following the first
accident. If the plaintiffs claim were stellar in all other respects, as
counsel phrased it, the absence of a supporting medical-legal report might not
be so troubling.
[74]
He further submits that following the second accident, the plaintiffs
family physician physically examined her only once, on June 2, 2008. In fact,
however, Dr. Cieslak also examined the plaintiff on September 25, 2008; but the
point remains intact that this was over three years ago. He points out that the
only objective symptom Dr. Cieslak reports on her examination is a reduction in
the plaintiffs range of motion in her C-spine muscles and lumbar spine, which counsel
submits is arguably a subjective symptom anyway.
[75]
Counsel also emphasized Dr. Cieslaks November 3, 2008 entry, which
states neck better, and points out the last mention of any back pain in the
plaintiffs clinical records is November 17, 2008.
[76]
The defendants also complain that there is no evidence from the
plaintiffs employer supporting the number of hours the plaintiff claims she
has lost due to accident-related pain. In this regard however, counsel for the
plaintiff responded that the defendants did not confront the plaintiff with the
suggestion that she was lying or challenge her specifically on the absence of such
records. That said, I note that the defendants did challenge the plaintiff on
the number of hours she claimed to have worked. I find the plaintiffs
submission on this point does not offend the rule in Browne v. Dunn (1893),
6 R. 67 (H.L.).
[77]
In sum, the defendants submit that both accidents were minor and not of
a kind that one would expect to see prolonged pain for over four years,
particularly in the absence of a medical report: see Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.) [Price].
[78]
I note the following facts are indisputable.
[79]
By March 2004, about four months after the first accident, the plaintiff
was engaged in full time studies as a homecare support worker, which she
completed in October 2004, the last month of the course being a practicum.
[80]
In December 2004, the plaintiff started working as a homecare support
worker at Bayshore. Between then and the second accident, she lost no time from
work, with the exception of time lost due to her elbow injury. When the second
accident occurred on May 31, 2008, the plaintiff had already been off work due
to her elbow injury, which prevented her from returning to work until July 13,
2008, a period of six weeks. By this date, she testified she had still not
recovered enough from the injuries she sustained in the second accident, but
explained that in the weeks between July 13, 2008 and her August 23, 2008
return to work, she took holiday time to which she was entitled.
[81]
Upon her return to work at Bayshore, the plaintiff missed no further
time from work. Nothing shows she was unable to perform her regular duties upon
her return.
[82]
As noted earlier, defence counsel submits that the plaintiffs case
rests entirely on her credibility, particularly regarding the duration of her
injuries and the extent of the income loss.
[83]
Regarding Dr. Cieslaks reports, he submits her opinions rest on the
plaintiffs subjective oral complaints of ongoing problems, but these were not
confirmed objectively on physical examination.
[84]
He submits, therefore, that because the plaintiff has failed to prove
the nature and extent of her injuries on a balance of probabilities, her case
should fail.
[85]
Alternatively, the defendants submit that if the Court finds the
plaintiff has suffered some compensable damages, the evidence reveals that for
the period following the first accident, the plaintiff had substantially
recovered by December 29, 2003, and any lingering symptoms resolved themselves
within a year thereafter.
[86]
Regarding the second accident, the defendants submit the evidence
indicates she recovered by August 23, 2008, when she returned to work a little
over two and one-half months after the second accident, and certainly by the
time she completed physiotherapy, which Dr. Cieslaks records reveal occurred
by September 2008.
[87]
The defendants rely on Jezdic v. Danielisz, 2008 BCSC 1863 [Jezdic],
a case in which the credibility of the plaintiff also loomed as a large issue. At
para. 21, Sigurdson J. said:
[21] … In approaching the credibility of the
plaintiff, I must keep in mind that English is not the plaintiffs first
language; her native language is Serbo Croatian. In her first day of school in
British Columbia, she apparently knew little English except repeating her name
in response to the inquiries of her teachers. At trial, the plaintiff appeared
to be fluent in English. I will comment later on whether she had difficulty
understanding the questions during the examination for discovery.
[22] I think that it is fair to say that if the
plaintiff was injured in this accident the injuries have persisted much longer
than one would normally expect. In those circumstances the comments of Chief
Justice McEachern, as he then was, in Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.), are appropriate to keep in mind. There, he
said:
[4] Perhaps no injury has
been the subject of so much judicial consideration as the whiplash. Human
experience tells us that these injuries normally resolve themselves within six
months to a year or so. Yet every physician knows some patients whose complaint
continues for years, and some apparently never recover. For this reason, it is
necessary for a court to exercise caution and to examine all the evidence
carefully so as to arrive at fair and reasonable compensation.
[5] In Butler v. Blaylock,
[1981] B.C.J. No. 31, decided 7th October 1981, Vancouver No. B781505, I
referred to counsel’s argument that a defendant is often at the mercy of a
plaintiff in actions for damages for personal injuries because complaints of
pain cannot easily be disproved. I then said:
I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be
fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.
[23] Here, the evidence of
the injuries of the plaintiff is based entirely on her subjective reporting to
her doctors and to the court.
[88]
The defendants submit that the circumstances of the case at bar are
similar to those found in Dolha v. Heft, 2011 BCSC 737 [Dolha No. 1]
and Dolha v. Heft, 2011 BCSC 738 [Dolha No. 2]. The two decisions
address the same accident and the plaintiffs, Laura Dolha and Carrie Dolha, are
related to one another.
[89]
At para. 17 of Dolha No. 2, Bruce J. cites Butler v. Blaylock
Estate, [1983] B.C.J. No. 1490 (C.A.), for the following principle:
[17] It is not the law that
if a plaintiff cannot show objective evidence of continuing injury that she
cannot recover. If the pain suffered by the plaintiff is real and continuing
and resulted from the injuries suffered in the accident, the plaintiff is entitled
to recover damages …
[90]
Bruce J. then goes on, however, to state at para.18 that where there is
little or no evidence to support the plaintiffs claims of continuing pain from
the accident-related injuries, a reasonable inference is that the pain was either
very minor or non-existent. In that case, the plaintiff maintained her pain
symptoms persisted for over two years, but despite that she had not sought out
further treatment. Further, Bruce J. pointed out that her physical activities
were only:
[18] … marginally affected by the pain she suffered
and the plaintiff was able to continue working. There was no disruption to her
social relationships. For the most part the plaintiffs life was unaffected by
the pain she experienced from the injuries caused by the accident. …
[19] While I have no doubt
that the plaintiff experienced some pain from the injuries caused by the
accident, it is apparent that after the critical stage of her injuries, the
pain was so nominal that she did not seek out further treatments for it. Nor
did the pain have any serious impact on her lifestyle.
[91]
After finding that after six to nine months the plaintiffs pain could
not be regarded as having affected her life in any manner and based on the
minor nature of the soft tissue injuries, the low velocity of the collision,
and the minimal impact of the injuries on the plaintiffs lifestyle, Bruce J.
found an award of $10,000 was appropriate for non-pecuniary damages: Dolha
No. 2, at para. 20.
[92]
In Dolha No. 1, Bruce J. awarded $7,000 for non-pecuniary damages
after finding the plaintiffs neck and back injury began to resolve within a
couple of months of the accident and had completely resolved within six to nine
months. At para. 17 of Dolha No. 1, Bruce J. referred to Stapley v.
Hejslet, 2006 BCCA 34, in which the Court of Appeal summarized some of the factors
that can be considered in assessing non-pecuniary damages. Bruce J. distils
those factors this way:
[17] … These include the
age of the plaintiff, the nature of the injury, the severity and duration of
the pain, disability caused by the injuries, emotional suffering, loss or
impairment of lifestyle, impairment or loss of life, impairment of family,
marital or social relationships, and impairment of physical and mental abilities.
V.
Discussion and Findings
[93]
I find the $66,000 – $76,000 range of overall damages proposed by the
plaintiff unrealistic in the circumstances. I note as well that the facts in
this case show the kind of clinical pattern that concerned McEachern C.J. in Price.
No medical evidence explains why a healthy young woman should be experiencing
residual symptoms more than eight years after her first minor accident and
nearly four years after her second accident, which was less serious than the
first. This is not to negative the possibility injuries sustained in low
velocity collisions sometimes produce persisting pain or, for example, can
sometimes develop into a chronic pain syndrome. But Dr. Cieslaks report falls
well short of showing that any of the plaintiffs residual symptoms relate to
either or both of these low velocity collisions.
[94]
The plaintiff presents as a pleasant and hardworking person who has had
to deal with some personal challenges unrelated to the accidents, including coping
with what appear to be mood difficulties her husband experienced following an
accident he was involved in prior to the plaintiffs first accident. She
separated from her husband, moved to Toronto in 2010, and was a primary
caregiver of her children for a period of time. I note she and her husband have
since reconciled.
[95]
Earlier, I set out the defendants main concerns related to the
plaintiffs credibility. The fact English is the plaintiffs second language
and the possibility of some communication difficulties does not adequately explain
all the discrepancies in the plaintiffs testimony.
[96]
On the other hand, I agree with plaintiffs counsel that some facets of
the plaintiffs testimony bolster her credibility, most notably her continuing
to pursue educational and work goals and advancing her career, which suggests
industry and a solid work ethic. Her ability to do so, however, also reveals
her physical capacity; post-accident symptoms have not hindered her professional
progress at all. Similarly, symptoms have minimally hindered recreational
activities, except for those early stages following the accidents when she was
experiencing more intense pain.
[97]
As for the plaintiffs housekeeping claim, I note her homecare support coursework
and later position as a homecare support worker engaged her in many of the same
activities as those that form her claim for lost housekeeping capacity. Further,
when she started working at Bayshore in December 2004, she was 90% recovered
from the first accident and able to perform all duties expected of her. When a
person reaches that level of recovery, it seems fair to say that it would
become difficult to distinguish between the ordinary aches and pains that come
with living, working and aging, and those that might be attributable to a low
velocity accident.
[98]
The second accident involved considerably less force than did the first
one. The defendant driver, Mr. Godwin, describes the accident as what can be
fairly characterized as a bump, but I note there was a little rippling in the
trunk of the plaintiffs Toyota Yaris, which, unless already present, suggests
some force. Further, I accept vehicles are designed to absorb certain amounts
of force to protect the vehicle and the passengers from damage. Whatever
glosses one might lay over both accidents, however, they involved, from any
reasonable perspective, low velocity and minimal physical damage.
[99]
Submissions by counsel for the defendants do raise concerns about the
reliability of some aspects of the plaintiffs evidence, but not to the extent
of upsetting a finding, on the balance of probabilities, that she sustained a
minor soft tissue injury following both accidents, though considerably more so
following the first than the second. I find the plaintiff suffered injury and
experienced symptoms for up to a year following the first accident and for a
few months after the second, but I also find she somewhat exaggerated elements
of her claim. Whether this occurred through inaccurate or conflated recollections,
anxiety, or for some other reason, the effect is the same: I did not find her
evidence reliable enough to award anywhere near the monetary amount of damages sought.
It would be wrong to infer from these reasons, however, that I found the
plaintiff a dishonest person, which is not the case.
[100] While the
medical-legal report from her family physician is deficient in some ways,
especially due to the lack of any physical examination after September 25, 2008,
Dr. Cieslak does record the presence of some objective symptoms, albeit with a
subjective component to them, and does provide some medical support to the
plaintiffs testimony.
[101] The
difficulty for the plaintiffs case, however, is the duration of her symptoms.
There is no indication of depression or psychological symptoms intersecting
with the physical injury to suggest a chronic pain disorder and there is no
medical report that supports that diagnosis, which is not claimed in the
pleadings anyway. I note Dr. Cieslak refers to medical literature for the
proposition that where symptoms persist past two years, they are likely to
persist indefinitely. That general statement, without some explanation of the
literature, and especially absent any medical examination within the last three
and a half years, or any attempt to link the plaintiffs injuries with the literature
relied upon, does not assist the plaintiff.
[102] As for the
claim for loss of housekeeping capacity, I find the nature and amount of the
plaintiffs claim extravagant, largely because of the points fairly raised by
defence counsel. The plaintiff asks the Court to compensate her for eight to
nine hours per week of lost housekeeping capacity for work she states took her
three to four hours to complete herself when she was able to do so. I find the
claim for 32-36 hours a month to be excessive and not supportable. A claim of
$22,500 for loss of housekeeping capacity requires a solid evidentiary
foundation, with clear links drawn between medical opinion and reliable
testimony. I find no reliable evidentiary basis for an award for loss of
housekeeping capacity based on a replacement cost approach or on the hourly
rate of $22, multiplied by 32 hours or more a month, as suggested by the
plaintiff.
[103] That said,
I do accept the first accident sufficiently diminished the plaintiffs capacity
to perform housekeeping in the first three months that followed, and to a
modest degree for a time thereafter, to justify a modest award as a separate
component of non-pecuniary damages. I accept the plaintiff required some
regular assistance, diminishing somewhat over time, until the end of January
2004. Thereafter, I find she was able to perform all her housekeeping
activities, although she felt some discomfort performing some of them. I also
accept that she occasionally needed others to vacuum, perform heavy lifting,
and clean sinks, until about the summer or fall of 2004.
[104] Following
the second accident, I find that upon the plaintiffs return to work in August
2008, she had fully regained her capacity to perform all her housekeeping
duties, many of which resembled her work as a homecare support worker, albeit
with occasional minor discomfort.
[105] As for the
plaintiffs loss of income following the second accident, I award the plaintiff
the equivalent of five weeks compensation, calculated based on 30 hours weekly
at $19.27 per hour, $2,890. Assuming the plaintiff likely could have picked up
additional holiday shifts during the summer months, I will round that amount up
to $3,000. The plaintiff is entitled to court order interest on that amount. This
should be reduced for income tax.
[106] I find the
plaintiff has not suffered any permanent disability because of the accidents,
either individually or taken together.
[107] For
non-pecuniary damages, I award the plaintiff $18,000 for her injuries from the
first accident, which includes an award of $3,000 for loss of housekeeping
capacity.
[108] For injuries
and losses sustained from the second accident, I award the plaintiff $6,000 for
non-pecuniary damages, which includes an award of $500 for loss of housekeeping
capacity.
[109] I award
$400 for special damages.
VI.
Costs
[110]
The plaintiff shall have her costs. If there were offers to settle or
other matters of which I am unaware, counsel may speak to costs or address them
by written submissions.
N. Brown J.