IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pataria v. Bertrand, |
| 2012 BCSC 934 |
Date: 20120625
Docket: M116788
Registry:
New Westminster
Between:
Manjot Pataria
also known as Joti Pataria and
Rajdeep Singh
Pataria by his Litigation Guardian
Sukhwinder Kaur
Pataria
Plaintiffs
And
Raymond Bertrand,
Harkamal Pataria and
Sukhjit Kaur
Pataria
Defendants
Before:
The Honourable Mr. Justice Truscott
Reasons for Judgment
Counsel for the Plaintiffs: | D.I. Wilkinson, K.R. |
Counsel for the Defendant Raymond Bertrand: | K. Armstrong |
Place and Date of Trial: | New Westminster, B.C. January 30, 31, |
Place and Date of Judgment: | New Westminster, B.C. June 25, 2012 |
[1]
The plaintiff Rajdeep Singh Pataria by his litigation guardian claims
against the defendant Raymond Bertrand for personal injuries and other losses
he alleges he sustained in a motor vehicle collision that occurred on February
9, 2007 in the City of Surrey, Province of British Columbia.
[2]
The claims of the plaintiff Manjot Pataria have been settled before
trial and the defendant Bertrand has admitted liability for the motor vehicle
accident. The claims against the defendants Pataria have therefore been
discontinued.
[3]
What remains is an assessment of damage claim by the plaintiff against
the defendant Bertrand.
[4]
The accident happened when the motor vehicle in which the plaintiff was
a back seat passenger was struck from the left side by the Bertrand vehicle as
it attempted to change lanes into the lane occupied by the plaintiffs vehicle.
[5]
The accident happened at or near the intersection of King George Highway
and 64th Avenue as both vehicles were proceeding west on 64th
Avenue.
[6]
At the time the plaintiff was 12 years of age and 17 years of age at the
time of trial.
[7]
The plaintiff was seated in the right rear passenger seat and says he
was pushed against the right passenger door and hit his face on something in
the vehicle that gave him a bleeding nose.
[8]
He was taken to Surrey Memorial Hospital where x-rays were taken that
were negative and then he was sent home.
[9]
When he awoke at home the next day he says his back, neck and shoulders
were sore and he had a headache.
[10]
For the first two weeks after the accident he missed school while his
back and neck pain and headaches continued. He says he also had problems
sleeping.
[11]
The evidence is that the plaintiff was quite a good soccer player at a
young age and prior to the accident was playing soccer in three different
leagues, one of those being an inter-provincial league.
[12]
The coach of one of his teams had a connection with the Vancouver
Whitecaps organization and at age 10 he and two other players were chosen to
play on a Whitecaps prospect team. He only played on this team for a while
before he returned to a team in the inter-provincial league in 2006.
[13]
He was player of the year in one of his leagues and brought home a lot
of trophies during his pre-accident soccer career.
[14]
He also played other sports such as ice hockey and ball hockey,
basketball and volleyball in school.
[15]
Since the accident he says his abilities as a soccer player and in the
other sports have fallen off because of his ongoing injuries.
[16]
He continued to play soccer after the accident but not in the
inter-provincial league and did not play full games because of his injuries. He
also continued his other school sports but again not at the same level nor at
the same pace.
[17]
In March and April 2007 he attended 11 sessions of physiotherapy but
cancelled four sessions and had one no-show. No explanations are given by him
for these absences.
[18]
In his examination for discovery on July 22, 2010 he was asked whether
he had played any organized volleyball since the accident and he said he had
not because of his symptoms. He was also asked if he had played any basketball
and he said he shot the basketball around once in a while but not on any teams.
[19]
He agreed at trial that this was not truthful evidence on his part as he
continued to play both these sports at school.
[20]
He says his back, neck and headaches have continued since the accident
and he cant sit in class for more than 20 minutes before he gets a headache
and cant concentrate.
[21]
At his examination for discovery on July 22, 2010 he said he was only
feeling back symptoms once or twice a week.
[22]
He says he wakes up three or four times a night with back and neck pain
and headaches and cant get back to sleep. He wakes up tired in the morning and
misses classes. In grade 12 he missed approximately 63 classes because of lack
of sleep.
[23]
At home he avoids housework that he says he used to do because of his
pain and headaches. He says he used to make his bed, wash dishes, vacuum and
cut the grass, but can no longer do any of these tasks.
[24]
He avoids any activity that requires him to reach over his head or bend
down and he says he can only drive for about 20 minutes before his back starts
to act up.
[25]
To ease his pain he swims and stretches and uses heat pads but only
takes Advil now as medication.
[26]
Presently he says he swims twice a week although he says his back is
affected after one lap. He also works out at the gymnasium twice a week.
[27]
He has taken about 20 sessions of physiotherapy recently although relief
only lasts until the next day. This physiotherapy was not recommended by any
physician.
[28]
In high school in 2008 he started working at his uncles lumber mill as
a summer job. He says he only went there a couple of times a week for four to
five hours while his uncle taught him the job.
[29]
In 2009 he attended the lumber mill full-time in the summer, six days a
week, but says he only worked in the office four to five hours a day making $12
per hour.
[30]
He says he was supposed to work eight to ten hours a day but couldnt
handle anything more than the four or five hours. He avoided any heavy lifting.
[31]
No income information is produced for this lumber mill job.
[32]
In 2010 and 2011 he did not return to the lumber mill because he says
his back pain was too much and it wasnt worth it to go there for only four to
five hours a day.
[33]
He says that in grade 10 he knew he wanted to be a heavy duty mechanic
in the trucking industry where his father and uncle work.
[34]
In October 2010 he went to work at a diesel repair shop for two weeks as
part of a work placement program through his school. On the second day he found
he couldnt reach up or bend down as required and he decided he couldnt be a
heavy duty mechanic as it required too much agility around the trucks and was
too hard on his back.
[35]
In November and December 2010 he spent two weeks working for the company
Sportschek as a retail assistant on the floor. He says he didnt have much trouble
doing this except he was on his feet all the time which put a strain on his
back.
[36]
In early 2011 he took a one-week course in becoming a trucking dispatch
specialist and received a certification for that on February 25, 2011. He says
he did well in that position as he was tops in his class but says he has no
interest in becoming a dispatcher. He only took the course to get some
knowledge of the trucking industry.
[37]
He has no plans after grade 12 as he says he has no idea what he is
suited for. He has no plans for post-secondary education.
[38]
In his examination for discovery he said he had a GPA of 3.5 or
something in 2011, but he agrees that this evidence is not true.
[39]
The plaintiffs mother works as a baggage handler at the airport. She
confirms the plaintiffs physical condition after the motor vehicle accident
and his problems sleeping.
[40]
She confirms that he used to help her a lot with the dishes and the
laundry.
[41]
She says he even now has difficulty sitting on the floor of their temple
for any length of time and has trouble sitting while driving.
[42]
She says it was she and her husband who forced the plaintiff to take the
dispatching test.
[43]
The plaintiffs sister Manjot, who was in the motor vehicle accident as
well, is four and one-half years older than the plaintiff. She works in her
uncles business where she does secretarial work and helps the accountant.
[44]
She and the plaintiff still live in the family house. She says prior to
the accident the plaintiff was passionate about all sports but mostly soccer
and he had above-average skill and lots of speed so he was playing at the
highest level for his age. To her he made it look easy.
[45]
After the accident she watched his school soccer where he had less
endurance and less speed and although he did his best he was not a natural any
longer.
[46]
Ashley Gill is a family friend and is one year older than the plaintiff.
She has known him for six years or so and saw him play basketball before and
after the motor vehicle accident. Prior to the accident he had lots of stamina
but he lost that stamina after the accident. She was his manager in grade 8 and
had to pull him off the floor when she saw pain on his face.
[47]
She gives the same evidence about the change in his soccer ability
before and after the accident.
[48]
Raja Tut is a cousin of the plaintiff and runs the lumber mill as a
family business where the logs are planed to make cedar fence panels.
[49]
He confirms that in 2008 the plaintiff came to work for him casually for
$8 cash per hour.
[50]
In 2009 he hired the plaintiff on the payroll and the plaintiff worked
for him for the summer.
[51]
He was aware that the plaintiff had back problems so he started him on
fairly easy jobs. He moved him around to fence panels where the plaintiff had
to lift them eight feet high and he did that for about a week or so. He kept
moving him around to different jobs and finally into the office to answer
phones and take orders.
[52]
He says that the plaintiff was to work 7:00 a.m. to 5:00 p.m. but
sometimes he only worked four to six hours a day and some days he was so sore
in the morning he didnt come into work until noon. The plaintiff made $12 per
hour and about $4,500 for the summer.
[53]
He says the plaintiff always tried hard but didnt have the endurance.
Because he was family Mr. Tut was lenient with him but realized he could
only do that for a time.
[54]
In 2010 he did not re-hire the plaintiff as he couldnt get enough
production out of him.
[55]
He says if the plaintiff had not been injured he would be happy to hire
him for $12 per hour.
Dr. Low
[56]
The plaintiffs doctor is Dr. Low who has been his doctor since
2005. When Dr. Low saw the plaintiff for the first time after the accident
he found the plaintiff had only 50% of normal neck movement, 50% of normal
right and left shoulder range of movement, and only 30% of normal range of
movement of upper and lower back with pain.
[57]
The plaintiff was advised to do stretches and stay active with moving
and walking.
[58]
By March 1, 2007 Dr. Low reported that the plaintiffs shoulder
pain was better with almost full range of motion in both shoulders and his neck
and back had 50-60% of normal range of motion. The plaintiff was referred for
physiotherapy at that time.
[59]
By the time of Dr. Lows visit on May 19, 2007 he was concerned the
plaintiffs progress was too slow as he appeared to be afraid to push himself
because of pain.
[60]
When the plaintiff was seen in August 2007 Dr. Low determined that
his neck and back had almost full range of motion but he appeared stiff with
movement.
[61]
In September 2007 the plaintiff returned complaining of neck and back
pain but on examination showed normal range of motion in his neck back and
shoulders.
[62]
The plaintiffs range of motion in his back varied thereafter, often
being down to 50% again. Dr. Low continued to encourage the plaintiff to
increase his activity and do lots of stretches.
[63]
In his final diagnosis following his last examination on September 17,
2010 Dr. Low said he felt the main therapy for the plaintiffs recovery
was to continue activity and stretches but he will likely have recurrent neck
and lower back pain on and off for a few more years, based on his slow recovery
to that point in time and he may require further physiotherapy and medication
if he has any exacerbation of his pain.
[64]
The plaintiff was referred by Dr. Low to Dr. Jaworski, a
physical medicine and rehabilitation specialist, who saw him on four occasions
commencing May 1, 2008 when the plaintiff was in grade 8. He saw the plaintiff
thereafter in June 2008, August 2008 and November 2008.
Dr. Jaworski
[65]
Dr. Jaworski found some mild restriction of movement in the back
and on palpation mild diffuse tenderness over the plaintiffs low back, and his
impression on the first visit was of non-specific musculoskeletal aches and
pains.
[66]
He recommended that the plaintiff do pool exercises three times a week
and one hour of brisk walking on the other days of the week.
[67]
When the plaintiff returned to see Dr. Jaworski on June 18, 2008 he
said he had a good day being essentially pain-free and his sleep was okay. He
was swimming twice a week and doing brisk walks as recommended.
[68]
When he returned again on August 20, 2008 he was complaining of some
neck and low back pain off and on.
[69]
Dr. Jaworski says that on a physical examination that day there
were some Waddell signs evident that he became concerned about.
[70]
He explains that Waddell signs are behavioural expressions of pain, non-organic
signs signifying a psychological component.
[71]
He explains that there are five categories of Waddell signs being
tenderness tests, simulation tests, distraction tests, regional disturbances
and over-reaction.
[72]
He says that customarily there should be three or more positive Waddell
tests before a behavioural component is signified. It is not necessarily a
derogatory term as it could amount to fabrication or it could amount to
considerable psychological stress.
[73]
He didnt record how many positive tests he observed as he says it
wasnt important to him.
[74]
He says that in every case of chronic pain there is always a
psychological component.
[75]
However he didnt consider the plaintiff was affected to any significant
degree warranting any psychological assistance as he was still physically
active and the pain problem did not appear to be intruding into his life to any
significant degree.
[76]
The plaintiff was then referred by his counsel to Dr. Purtzki,
another physical medicine rehabilitation consultant who saw the plaintiff in
September 2010 and issued a first report on September 27, 2010.
Dr. Purtzki
[77]
Dr. Purtzki found on examination a normal range of motion of the
neck with significant tenderness diffusely over the soft tissues of the muscles
in the lower back and mid back. The plaintiff had significantly decreased range
of motion in the lumbar spine especially in flexion but also in extension and
he had a localized area of tenderness at the L5/S1 disc space interval. This
was tender to pressure and he had increased pain in this area with
hyperextension.
[78]
He also had evidence of allodynia, experiencing generally non-painful
stimuli as painful over his back.
[79]
Dr. Purtzkis diagnosis was of chronic soft tissue pain and dysfunction
with evidence of allodynia and hyperalgesia (excessive sensitivity or
sensibility to pain). She said that the plaintiff seemed to experience
non-painful stimuli as painful and mildly painful stimuli as more painful, as a
generalization to the area of pain. She said this is commonly seen with ongoing
chronic pain complaints where there is generalization of an initially more
focal point of pain.
[80]
She had not seen any MRI results at that point in time and only offered
the opinion that he might suffer from a disc bulge in the L5/S1 area and she
recommended an MRI to look for an L5/S1 disc bulge.
[81]
She considered the neck pain to be preliminarily related to diffuse soft
tissue injury and whiplash injury.
[82]
She considered that he initially had suffered from symptoms of
post-traumatic stress with difficulty falling asleep and hypervigilance and
fear of driving, although these symptoms had all resolved.
[83]
Her treatment recommendation was to treat for diffuse mid and lower back
pain and hyperalgesia. She didnt consider physical activation to be the issue
because he seemed to be very physically fit and active and she thought that the
prominent pain complaint needed to be addressed both from a central as well as
from a peripheral aspect.
[84]
She also thought that the plaintiff would benefit from targeted
stretching and core exercises and that it was important to look at
desensitization strategies as well.
[85]
In terms of his neck pain she considered that localized facet joint
injections with lidocaine and possibly steroids could be helpful for chronic
cervicogenic pain. She thought a referral to a physiatrist might be helpful for
such injections.
[86]
She thought that his headaches were also likely cervicogenic in origin
and might improve with treatment of the neck.
[87]
She said that he may require vocational counselling on completion of
grade 12 as she was personally somewhat doubtful that he would be able to
pursue a career as a heavy duty mechanic in the event his symptoms did not
improve.
[88]
Finally she recommended a referral to the Complex Pain Clinic at BC Childrens
Hospital or the Chronic Pain Clinic at St. Pauls Hospital if his pain
complaints remained unabated and she said exploration of psychological factors
contributing to pain was advisable.
[89]
Her prognosis at that time was that the plaintiff might have
long-standing pain complaints which may not resolve completely and while due to
his young age the prognosis for physical recovery is usually excellent, other
factors such as an underlying diagnosis of psychological factors needed to be
addressed.
[90]
The plaintiff had an MRI done of his low back area on April 27, 2011.
This revealed a slight disc bulging at L3/4, a mild disc bulge and disc
desiccation at L4/5 and a disc protrusion at L5/S1.
[91]
The author of the MRI interpreted the results as being a disc
desiccation and slight loss in disc height at L4/5 with mild broad-based
posterior disc bulging with mild bilateral lateral recess encroachment, and
focal midline L5/S1 disc protrusion with associated disc desiccation and loss
in disc height. No convincing evidence of traversing or exiting nerve root
impingement was present at this level.
[92]
In a subsequent report of July 8, 2011 she reviewed the report of the
MRI and said the question regarding the causal relationship between the motor
vehicle accident, the lower back pain and the disc bulge comes down to
probabilities.
[93]
She had not found the L4/5 disc to be tender on her examination but she
did find the L5/S1 level, where the disc protrusion or herniation was, to be
painful on her examination.
[94]
She reviewed literature on the incidence of lumbar disc disease in
adolescents and concluded that it is much less common in that group and the natural
history and causes seem different.
[95]
Adolescents are less likely to present with neurological deficits. They
mostly present with lower back pain.
[96]
She concluded that the plaintiffs onset of low back pain had a definite
temporal relationship to the motor vehicle accident and she expressed the
opinion that it is more likely than not that the accident is the cause of the
disc protrusion which is most symptomatic at L5/S1.
[97]
In addition she said the plaintiff has signs of generalized pain and
excessive sensitivity to pain which may be related to the chronicity of the
back pain but is now an additional impairment that requires treatment.
[98]
She recommended a course of core stability exercises which may improve
the plaintiffs back pain but she didnt think a lack of exercise is the core
issue because it would not likely have made a difference in her view.
[99]
She recommended that his generalized pain and sensitivity to pain be
treated with medication and cognitive behavioural therapy.
[100] Her
prognosis was that the plaintiff will continue to suffer from back pain without
any intervention such as micro-invasive therapy or steroid injection. She
thought a surgical opinion from a spine surgeon may be helpful and she strongly
recommended obtaining this opinion.
[101] She
considered the plaintiff at risk for deterioration with neurological symptoms
which may then force a discectomy and she expressed concern that the plaintiff
will have further herniation of the disc at L4/5 and L5/S1 with heavy lifting.
She thought a lighter trade job such as an electrician would not be completely
out of the question for him.
[102] At the
same time she said that he may experience gradual improvement of pain in the
next few years.
[103] She
reviewed the reports of Dr. Jaworski and his reference to Waddell signs.
She considers that Waddell signs are often misinterpreted and are not
indicative by themselves of malingering or secondary gain attempts.
[104] She does
not consider the secondary gain issue to be relevant to the plaintiffs
complaints but she also says that a psychiatrist is the only one who can
diagnose malingering or secondary gain.
[105] She points
out that Dr. Waddell published an article in which it was stated that
behavioural signs may be learned responses to pain that have developed since
the original injury and of which the patient is largely unaware.
[106] In a
follow-up report of December 22, 2011, she reviewed the September 26, 2011
report of Dr. Sovio, orthopaedic surgeon, who examined the plaintiff for
the defence on September 20, 2011.
Dr. Sovio
[107] Dr. Sovio
examined the plaintiff when the plaintiff was 17 years of age and in grade 12.
[108] The
plaintiff told Dr. Sovio he did not have any headaches. He said his neck
has discomfort when his back hurts. He complained of low back pain. He said his
range of motion was fine but he had discomfort within that range of motion.
[109] He told Dr. Sovio
he has continued to play soccer at school with practises and games once a week.
He told Dr. Sovio he could only play for perhaps 15 or 20 minutes before
having to take a rest.
[110] He also
said he went swimming once a week and lifted weights in the gymnasium two or
three times a week.
[111] Dr. Sovios
physical examination revealed a healthy looking well muscled young man.
[112] The range
of motion of the neck in flexion, extension, side bending and rotation was
normal but Dr. Sovio found it interesting that the plaintiff complained of
pain in his low back with flexion and extension and side bending of the neck.
[113] The
plaintiff complained of discomfort in the lumbar region on palpation and had
difficulties with pain in all lumbar movements. Dr. Sovio could not find
any physical reason for the plaintiffs back pain. To him the complaints did
not fit the picture of any physical injury. He concluded that the plaintiff was
functioning at a very good level and there were no significant ongoing problems
apart from ongoing subjective symptoms which to him appeared to be exaggerated
and appeared to be difficult to quantify.
[114] He didnt
consider the plaintiff limited in his physical ability to function and he
thought on a physical basis the plaintiff could become a heavy duty mechanic if
he wishes.
[115] In his
view paying attention from a physical standpoint to the plaintiffs problems
serves only to escalate his subjective symptoms.
[116] He
considered that the plaintiff needs attention from a psychological perspective
which is outside his area of expertise.
[117] He also
found positive Waddell signs and said in the face of these signs and what
appeared to be exaggeration of symptomotology, functional capacity evaluations
are meaningless.
[118] He
disagreed with Dr. Purtzki that the plaintiff has physical injuries and
needs ongoing medication, injections and other modalities of treatment.
[119] He didnt
consider the MRI results to be of any significance as he considered some disc bulging
to be a typical finding and noted the plaintiff did not have any nerve root
tension signs.
[120] In her review
of this report of Dr. Sovio, Dr. Purtzki observed that in her
original report she noted the plaintiff had a feeling of normally not painful
stimulus as painful and a perception of mild painful stimulus as being very
painful.
[121] Although
she noted similar issues during her examination as did Dr. Sovio in terms
of the plaintiffs interpretation of sensation as being painful, she viewed
these findings as part of a chronic pain disorder that needs to be addressed
with treatment, but did not view it as malingering.
[122] The
plaintiffs reaction to one of the Waddell tests she considered to be an
expression of a chronic pain disorder which includes fear of movement, fear of
pain and misinterpretation of signals in the body as painful.
[123] She pointed
out that Dr. Waddell says that the finding of non-organic behavioural
signs does not preclude the existence of organic pathology and she was of the
view the plaintiff has a pain generator related to the lumbar spine in addition
to the generalized chronic pain.
Mr. Padvaiskas
[124] Mr. Padvaiskas
is an occupational therapist who did a work capacity evaluation of the
plaintiff on February 14, 2011. He put the plaintiff through work capacity
testing and concluded that the plaintiff showed a high level of effort within
his pain tolerance.
[125] He found
restrictions of movement in bending, stooping, kneeling, pushing and pulling
and in heavier strength demands.
[126] He
concluded that the plaintiff does not demonstrate suitability for playing
competitive soccer in relation to the body movement/body position demands of
that sport and does not demonstrate the minimum physical ability to perform
work as a heavy duty mechanic.
[127] In his
opinion the plaintiff is best suited to jobs that allow a lot of standing and
walking and optimal ergonomic sitting positions.
[128] He also
found positive Waddell signs on the non-organic testing where there should not
have been a pain response in his opinion.
[129] The
plaintiff told him that he had stopped all school-related sports after the
motor vehicle accident and Mr. Padvaiskas agrees at trial that if he had
known that the plaintiff had continued school sports it could potentially have affected
his opinion.
Mr. Lesmeister
[130] Mr. Lesmeister
has a Masters degree in Counselling Psychology and has worked as a vocational
rehabilitation consultant since 2009.
[131] He does
not do functional testing but has accepted existing opinions on the plaintiffs
functional abilities. However he does do academic aptitude and interest
testing.
[132] He
assessed the plaintiff on February 16, 2011 and he concluded that the
plaintiffs vocational testing scores indicate he is not a candidate for formal
academic retraining programs of two years or longer, and may be better suited
to skill-based short-term training or hands-on learning environments that would
be physically appropriate with his physical limitations.
[133] Based on
the medical information he reviewed, he says the plaintiffs musculoskeletal
injuries have impacted his residual physical functioning which has affected the
suitability to perform occupations consisting of greater than medium strength
demands.
[134] Based on
information he received that the plaintiffs parents work in semi-skilled
occupations he considers it fair to assume that but for the accident the
plaintiff could have likely pursued an employment path requiring at least
semi-skilled requirements of short-term training of up to two years.
[135] Given the
number and range of the plaintiffs residual limitations he considers it fair
to assume the plaintiff has experienced a significant narrowing of possible
vocational options and his impairments are expected to last long-term which
will affect his level of employability over the course of his life.
[136] His work
capacity evaluation findings indicate the plaintiff does not demonstrate
suitability for playing soccer at any competent level.
[137] Without
any skill upgrading he considers that the plaintiff is quite limited in the
type of employments available to him such as cashier, gas station attendant,
and other positions typically paying minimum wages and offering only part-time
hours.
[138] He did not
specifically consider the position of dispatcher where the strength requirement
is limited.
[139] He agrees
that his testing is not an exhaustive test and he says dispatching would be
acceptable for the plaintiff.
[140] He says
that based on the medical information reviewed it appears the plaintiff will be
best suited to working in lighter strength positions. Examples he gives are
sales jobs and select office work although he points out that the plaintiff
scored low in numerical and verbal aptitude as well as reading comprehension
which are key skill areas for these occupations.
[141] He
concludes by recommending that the plaintiff work with a professional to
explore job training options for him and he says those vocational supports are
available for purchase and typically cost $100 per hour with approximately 20‑30 hours
of service being appropriate for the plaintiff.
[142] He also
says the plaintiff may need job search services to access particular jobs and
they typically charge $70 per hour for an average of 30 hours.
Mr. Benning
[143] Mr. Benning
is the president of PETA Consultants Ltd., a firm of consulting economists.
PETA Consultants was retained by plaintiffs counsel to prepare a report on
future loss of employment income applicable to the plaintiff based on two assumptions,
being:
1. absent
the motor vehicle accident and subject to contingencies described, the
plaintiff would have otherwise enjoyed employment earnings commensurate with
those experienced by the average BC male with a trade certificate or diploma,
through to assumed retirement no later than age 65 years; and
2. as a
result of the motor vehicle accident the plaintiff will now realize employment
earnings commensurate with those experienced by the average BC male with a
complete high school education, through to assumed retirement no later than age
65 years.
[144] In
comparing assumption 1 to assumption 2 he concludes that the plaintiffs future
loss of employment income would be in the order of $257,793.
[145] He also
did a comparison with a modification to assumption 2 that the plaintiff will
now realize employment earnings commensurate with those experienced by the
average BC male with a complete post-secondary non-union training of less than
one year.
[146] In
comparing assumption 1 absent the motor vehicle accident to this assumption 3
he concludes the plaintiffs loss of employment income would be in the order of
$181,447.
Submissions
Plaintiffs Submissions
[147] Plaintiffs
counsel submits that, on the strength of the evidence from his witnesses,
emphasizing the opinions of Dr. Purtzki and rejecting the opinions of Dr. Sovio,
a finding should be made that the plaintiff suffers from a herniated disc in
his low back at L5/S1 that causes low back pain, and in addition has a
generalized chronic pain disorder in his back and neck, all caused by the motor
vehicle accident of February 9, 2007.
[148] A finding
is sought that the plaintiffs pain and complaints will not resolve and he is
at further risk of aggravating the herniated disc with any heavy lifting. He is
no longer physically capable of being a heavy duty mechanic or doing other
heavy duty work.
[149] He also
cannot any longer play soccer at the former high level that he played at,
denying him ongoing opportunities for soccer scholarships and travel for soccer
purposes.
[150] Presently
he is only able to work in light/medium strength employments which limits his
opportunities and produces a loss of income-earning opportunity claim.
[151] General
damages of $140,000 for pain and suffering are sought relying on the decision
in X. v. Y., [2011] BCSC 944.
[152] Past loss
of earning capacity is also sought in the amount of $5,760, reflecting his
inability to work at the lumber mill in 2010 and 2011 when Mr. Tuts
evidence was that he would have hired the plaintiff at $12 per hour.
[153] A future
loss of income-earning opportunity claim is made in the amount of $181,447,
based upon Mr. Bennings calculations on the basis of the loss of earnings
approach, or alternatively, $100,000, based on a loss of capital asset
approach.
[154] A loss of
future housekeeping capacity claim is made in the amount of $55,000, based on
the award in McTavish v. MacGillivray, [2000] BCCA 164, brought up to
current value.
[155] Past
special damages for physiotherapy treatments and prescription costs are agreed
in the amount of $212.80 and an additional claim is made for three hours of
services estimated by Mr. Lesmeister in the future for job service
assistance to the plaintiff.
Defendants Submissions
[156] Defendants
counsel submits the evidence of the plaintiff as to the extent of his injuries
and their effect on him is exaggerated and his evidence is not to be accepted.
[157] It is
submitted the fact that the plaintiff returned to his sports of soccer, hockey,
basketball and volleyball after the accident, along with his regular swimming
and lifting weights in the gym, all serve to demonstrate that he is not nearly
as injured as his counsel claims.
[158] In
addition it is submitted that the fact that he gave false evidence on his
examination for discovery should also support the conclusion that his evidence
should not be accepted.
[159] It is
submitted that the fact that Dr. Jaworski and Dr. Sovio both noted
Waddell signs in their examinations suggests the plaintiffs complaints of pain
are products of his own efforts towards obtaining the secondary gain of a
significant judgment in his claim.
[160] It is
submitted that Dr. Sovios opinion that the disc bulging is meaningless as
a typical finding should be accepted over the opinions of Dr. Purtzki that
the bulging is caused by the accident and will present problems for the plaintiff
in the future.
[161] It is also
submitted that Dr. Purtzki was an advocate for the plaintiff, being
argumentative in cross-examination, and her opinion should not be accepted for
that reason as well.
[162] It is
submitted the plaintiff has also failed to mitigate his damages by not pursuing
recommended treatment vigorously as Dr. Low prescribed to him.
[163] While it
is conceded that the plaintiff suffered some soft tissue injury in the
accident, it is submitted that the injury was mild and only a modest award for
non-pecuniary damages of $25,000-$30,000 is justified, reduced further by 20%
to allow for the failure to mitigate.
[164] For past
wage loss it is submitted that the evidence does not support any award as there
is no evidence of any effort by the plaintiff to work in the years 2010‑2011
at the lumber mill or anywhere else.
[165] It is
submitted that there should be no award for future loss of income-earning
opportunity either on the basis that the plaintiff can still become a
heavy-duty mechanic which only requires light strength, or a trucking
dispatcher that he excelled at when he took the course.
[166] It is
submitted that there is no evidence that the accident has impaired the
plaintiffs ability to obtain a trade certificate or diploma following high
school.
[167] It is
submitted there should be no award for loss of housekeeping capacity when there
is no evidence the plaintiff is unable to perform housekeeping work and housekeeping
work cant be any heavier than the medium-strength work that the plaintiff is
still capable of carrying out.
[168] The
defence agrees with the claims for past physiotherapy costs and prescription
costs but says there is no basis for any award for assistance in finding a job when
other high school students who are not injured need the same assistance.
[169] His
submission is that this is an expense that flows from being a high school
student in todays world and not from any injuries in the accident.
Analysis and Decision
Non-Pecuniary Damages
[170] In my view
the assessment of the plaintiffs non-pecuniary damages for pain and suffering
depends to a large extent on a determination of whether the opinion of Dr. Purtzki
is to be preferred that the disc bulge at L4/5 and disc protrusion at L5/S1 are
likely caused by the motor vehicle accident, or whether the opinion of Dr. Sovio
is to be preferred that the MRI results are not of any significance as some
disc bulging is a typical finding.
[171] I accept
that the plaintiff sustained soft tissue injuries to his neck and back area,
with accompanying headaches, in the motor vehicle accident. I also accept that
initially he had symptoms of post-traumatic stress, difficulty falling asleep
and hypervigilance, although those problems quickly resolved.
[172] I conclude
however that physically the plaintiff is not as injured as counsel makes out.
He is able to swim regularly and work out with weights in the gym.
[173] After the
accident he was able to return to his sports of soccer, basketball and
volleyball, albeit not at the same level of performance.
[174] At his
examination for discovery on July 22, 2010 he said he was only feeling back
symptoms once or twice a week.
[175] It is also
a fact that initially he did not accept the recommendations of Dr. Low
that he work harder at recovery although he has improved his effort as time has
gone on.
[176] I accept
the opinions of Dr. Purtzki that the plaintiff has evidence of allodynia
and hyperalgesia and seems to experience non-painful stimuli as painful and
mildly painful stimuli as more painful, as a generalization to the area of
pain. This is commonly seen with ongoing chronic pain complaints. At the same
time she says he may experience gradual improvement of pain in the next few
years.
[177] I also
accept her opinion that it is more likely than not that the motor vehicle
accident is the cause of the disc protrusion which is most symptomatic at
L5/S1. Her analysis of the medical literature indicates that in a young man
such as the plaintiff disc herniation is much less likely to occur without
trauma and the plaintiffs low back complaints here arose following the motor
vehicle accident.
[178] I do
observe however that there is no nerve root impingement as Dr. Sovio
points out.
[179] Dr. Purtzki
says that she would be quite conservative in her recommendation for surgery
until the general pain component has been addressed and she suggests a surgical
opinion from a spine surgeon may be helpful while saying she strongly
recommends this therapeutic opinion.
[180] To my
knowledge this referral has never taken place so it is unknown whether any kind
of surgery would be beneficial to the plaintiffs back pain.
[181] She
recommends in her report of September 27, 2010 that exploration of
psychological factors contributing to pain is advisable.
[182] In her
report of July 8, 2011 she says that the plaintiffs signs of generalized pain
and hyperalgesia require treatment with medication and cognitive behavioural
therapy and she says that his signs of generalized pain and hyperalgesia may be
related to the chronicity of back pain and is now an additional impairment that
requires treatment.
[183] I
acknowledge the observation of the personal trainer Mr. Jones that the
plaintiff was verbally reporting pain even before contact was made during his
assessment.
[184] No medical
evidence was presented at trial of any psychological treatment having been
given to the plaintiff and what the results might be for his generalized pain
and hyperalgesia.
[185] I acknowledge
the findings of Dr. Jaworski and Dr. Sovio of Waddell signs present
on examination of the plaintiff although I conclude as did Dr. Jaworski
that these are behavioural expressions of pain, non-organic signs signifying a
psychological complaint and are not signs of malingering.
[186] All of
this confirms to me that the plaintiff is in need of psychological assessment
and treatment.
[187] I accept
that with the plaintiffs disc herniation he cannot do any heavy lifting but as
I understand the report of Dr. Purtzki if he does not do any heavy
lifting, her concern about further herniation of the disc will abate.
[188] I have
reviewed the cases supplied to me by both parties.
[189] I agree
with defence counsel that the injuries the plaintiff sustained in the case of X.
v. Y. bear no resemblance to the injuries sustained by the plaintiff in
this case.
[190] I consider
the defendants cases to be more helpful than the plaintiffs cases, although
still somewhat on the low side.
[191] I consider
an appropriate figure for general damages for this plaintiff, in the absence of
any evidence from a spine surgeon and any prognosis for the psychological
problems, to be $40,000.
Past Loss of Earning Capacity
[192] This claim
was made on the basis that the plaintiff could have returned to work at the
lumber mill in 2010 and 2011 at $12 per hour, if he had not been injured. That
is the evidence of Mr. Tut who also says that the plaintiff made
approximately $44,500 for the summer of 2009.
[193] The
plaintiff was only 15 years old in 2010 and I expect that he may not have had
much of a chance of finding a job elsewhere than in the family business. At the
same time there is no evidence he made any effort to find another job.
[194] I am
prepared to accept this claim in the amount of $2,500 on the basis that his
injuries would have reduced his chances of obtaining employment to a certain
extent.
Future Loss of Income-Earning Capacity
[195] The
plaintiff was only 12 at the time of this accident and absent the accident his
future income potential at that time must be considered as highly speculative.
[196] Unrelated
to the accident the experts appear to believe that the plaintiff does not
have the academic abilities to go on to a post-secondary university education.
[197] While I
question how that can be determined before there is any effort made to obtain
it or even apply for it, I do accept it unlikely with the plaintiffs family
background of work, that he would have gone on to seek a post-secondary
university education regardless of the motor vehicle accident.
[198] I do not
see any reason, however, even now why he cannot obtain a trade certificate in
some trade that does not involve heavy lifting that would probably pay him as
much as he would make in a job requiring heavy lifting.
[199] I do not
consider it appropriate in the circumstances to assess his loss on the basis of
a loss of an income stream.
[200] I view it
as more appropriate to assess his loss on the basis of his loss of capital
asset, that being his loss of the ability to engage in occupations that require
a strong back.
[201] Even an
assessment of his loss of capital asset is somewhat speculative bearing in mind
my conclusion that it is presently uncertain how long the plaintiffs back will
continue to bother him if he gets the surgical opinion and psychological
assistance that he needs.
[202] In McFadyen
(Guardian Ad Litem of) v. Dean, [2006] B.C.J. No. 1164, 2006 BCSC
779, Cullen J. (as he then was) ordered damages for personal injury of a 13‑year‑old
sustained in a motor vehicle accident in 1999.
[203] The
plaintiff suffered pain to his right hip and pelvis, his upper, middle and
lower back, and to his neck. The accident left him with residual injuries
involving pain to his neck, mid back and more significantly his low back from
which he felt daily pain.
[204] The
plaintiff was an average student who worked hard but was very athletic, mainly
playing soccer but also basketball, baseball, volleyball and bike-riding. He
played soccer at the gold level, the highest competitive level for his age
group at the time of the accident.
[205] The
plaintiff had an ongoing chronic pain condition in his back from the accident for
which there had been no substantial improvement in the previous four or
five years and the Court accepted that his condition could be expected to
continue.
[206] The Court
also found that the accident had diminished the plaintiffs opportunities for
employment and occupations involving the medium and heavy strength categories.
[207] In
considering the future loss of income-earning opportunity claim, the Court said
that it was a case in which the plaintiff was involved in the accident long
before he could be expected to have established a career path and it was
therefore difficult to assess with any measure of certainty what, in the absence
of the accident, he would have taken up as a vocation.
[208] The
plaintiff advanced the proposition he would likely have followed in his
fathers footsteps and entered a trade such as a fabricator or a plumber with a
certain income stream reduced by negative contingencies.
[209] The Court
accepted that the plaintiff had a capacity to earn income impaired by the
accident in occupations in heavy and medium categories that have been
foreclosed or limited to him and that represented an impairment of his earning
capacity.
[210]
The Court cited Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393,
where the Court quoted with approval from Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353, where the following considerations were taken into account:
1. The
plaintiff has been rendered less capable overall from earning income from all
types of employment;
2. The
plaintiff is less marketable or attractive as an employee to potential
employers;
3. The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him had he not been injured; and
4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.
[211] Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 was also referred to where Madam
Justice Southin said words to the effect that even for a plaintiff who
apparently is able to earn as much as he could have earned if not injured a
loss of opportunity has to be compensated for because for the rest of his life
some occupations will be closed to him and it is impossible to say that over
his working life the impairment will not impair his income-earning ability.
[212] Applying
those principles the Court in McFadyen said the quantum of the
plaintiffs entitlement was not ascertainable by reference to specific
occupations but whatever course of training, study or apprenticeship the
plaintiff chooses to pursue will be conditioned by his physical limitations and
his ability to compete for jobs in the occupation of his choice will be
impaired by the effects of the accident.
[213] It was
said that the fact the plaintiff was limited in certain physical activities and
suffered from chronic pain would likely have an ongoing long-term effect on his
ability to earn income, whatever its source.
[214] He was
awarded $100,000 to reflect the diminution in his capacity to earn income over
the course of his working life and to assist him in receiving training in areas
that would be less affected by his physical limitations.
[215] Taking
into account that it has been recommended that the plaintiff obtain a surgeons
opinion and take psychological counselling, and that he has not done that to
date, and therefore no prognosis can be given as to what results those would
bring about in terms of his back condition, I assess his loss of future
income-earning capacity at $75,000.
Loss of Housekeeping Capacity
[216] The
plaintiff gave some limited evidence of his inability to do housekeeping work
and his mother said that he used to help her a lot with the dishes and the
laundry.
[217] Plaintiffs
counsel seeks an award in the order of $55,000, relying upon the case of McTavish
v. MacGillivray.
[218] The
distinction in this case from other cases considering the loss of housekeeping
capacity is that this case concerned a teenage boy who lives at home with his
parents. It does not concern someone who has primary responsibilities at home
to do certain housekeeping duties that have to be taken up by other members of
the family or done by outside help.
[219] It is
simply a situation where the plaintiff carried out some housekeeping duties in
assisting his mother but there is little evidence of how much he did or, put
another way, how much his mother or anyone else in the family had to do to make
up for housework the plaintiff did not do.
[220] As a
consequence, it becomes difficult to assess the value of this claim and any award
must be very modest.
[221] In the
circumstances I award $5,000 for this claim.
Special Damages
[222] Special
Damages will be awarded in the amount of $2,312.84. This includes the
physiotherapy fees and the prescription costs as well as the 30 hours of
services recommended for a job developer.
[223] The
difference between the plaintiff and any other high school student coming out
of grade 12 is that the plaintiff is physically impaired to a certain extent in
seeking employment and considering his present limitations physically it would
be of assistance for him to have someone search out appropriate employment for
him to consider.
[224] This being
an assessment of damages, the plaintiff will have his costs throughout.
The Honourable Mr. Justice Truscott