IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120802

Docket: M093515

Registry:
Vancouver

Between:

Kim Sourisseau

Plaintiff

And

Steven Christopher
Peters

Defendant

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
The plaintiff claims damages arising from a motor vehicle accident which
occurred in Victoria B.C. on August 19, 2007.

[2]            
The defendant admits liability but says the impact caused by the
collision was minimal; that the plaintiff has exaggerated her injuries and has
misled her medical and health advisors. Accordingly the defendant says the
reliability of the medical and other reports the plaintiff has submitted to the
court are of questionable value and should not be relied on as accurate
reflections of the plaintiff’s injuries

Background

[3]            
The plaintiff, Ms. Sourisseau, is 34 of age. She resides in Winnipeg,
Manitoba and, at the time of the accident was visiting a friend, Ms. Lisa
Nykolaishen who resided in Victoria.

[4]            
The plaintiff was a passenger in Ms. Nykolaishen’s new 2007 Mitsubishi
SUV when it was struck from the rear by the defendant’s vehicle. The
Nykolaishen vehicle had been travelling in a westbound direction on East Gorge
Road and had stopped at the stop light at the intersection of Jutland Street
when it was struck from the rear by the defendant’s vehicle.

[5]            
The plaintiff says that when the vehicle was struck she was turned
slightly to her left talking to her friend, that there was no warning prior to
the impact and that she screamed. She said upon impact there was a “big bang”
and that she was “forcibly thrown forward” which caused her seatbelt to engage
and stop her forward motion. She advised her friend she was not injured at the
scene. Ms. Sourisseau testified when she and Ms. Nykolaishen spoke to the defendant
at the scene he told them the brakes of his vehicle were not working.

[6]            
The impact caused minor damage to both vehicles. The Nykolaishen vehicle
had damage to the rear bumper, the cover of which required replacement at a cost
of $868.94. The damage to the defendant’s 1990 Mercury Cougar was $74.11 and
involved, as described on the ICBC “Low Velocity Impact Claim” the front bumper
licence plate being “deformed” as well as some minor paint scuffing on the bumper
cover

[7]            
The intersecting streets where the accident occurred were relatively
flat with perhaps a slight downwards slope as one approached the intersection
from the direction the Nykolaishen vehicle was travelling.

[8]            
The plaintiff testified she did not feel pain until that evening after
dinner. She said she developed pain across her chest, neck, back, shoulder,
thigh and knee. She was unable to sleep that night and attended a walk in
clinic the next morning.

[9]            
She returned to Winnipeg on that day. On August 27, 2007 she saw Dr.
Marc Frechette who, with his wife, Dr. Sharon Frechette carries on a family
medical practice at the Marion Medical Clinic in Winnipeg.

[10]        
Dr. Sharon Frechette is Ms. Sourisseau’s family doctor but was unavailable
in August to see her. The plaintiff continued attending on either of the Drs.
Frechette for various complaints to her neck and back until January 16, 2009.

[11]        
Ms. Sourisseau testified Dr. Marc Frechette prescribed medications (muscle
relaxants, a pain reliever and sleeping pills) and recommended physiotherapy,
massage therapy and acupuncture. She found the medications too strong and
instead took Advil for headaches she said were brought on by neck pain. She
said she had constant symptoms of back pain and neck pain with “pounding”
headaches which continued but gradually reduced over the next year. She
attended physiotherapy and massage therapy which “kept the pain at bay” and
enabled her “to get thorough the day”.

[12]        
Ms. Sourisseau testified her back was not as much an issue as neck pain.
She had “essentially recovered” from her back injury in about the spring of
2010. Her right hip and thigh had resolved within a year of the accident. She
testified she had “never had back issues before.”

[13]        
Ms. Sourisseau testified she attended physiotherapy twice per week until
October, 2008 but then discontinued attending and was given exercises to do at
home. She continued with massage therapy until the spring of 2010.

[14]        
The plaintiff testified she noticed a significant improvement in her
symptoms in 2010: that she was 90% recovered but that she still was “nagged” by
the odd ache and pain. She said she was cautious about the activities she
undertook, particularly reaching upwards. Her headaches had diminished following
the first year after the accident although again she still had headaches
associated with her neck pain but that they were not nearly as frequent.

[15]        
Ms. Sourisseau testified for the first year she had relied on her mother
to come to her residence to assist her with housekeeping but that within a year
she started doing the work herself. She also required assistance shovelling
snow: that a neighbour assisted her and she paid him but that this year she was
able to do her own shovelling.

[16]        
The plaintiff testified she used to enjoy running as a leisure activity
but that she has stopped running and now walks. She said her energy level was
low but that within two years of the accident she felt much better

[17]        
In addition to August 27, 2007, Ms. Sourisseau saw Dr. Marc Frechette on
September 6, 14, 27, October 15 and 31, and November 27, 2007, on February 28
and September 2, 2008 and February 26 and March 8, in 2010. She saw Dr. Sharon
Frechette on December 17, 2007 and January 16, 2009.

[18]        
When Dr. Marc Frechette examined her on August 27, 2007 Ms. Sourisseau
was complaining of neck and back pains. Dr. Marc Frechette noted that she was
“moving all limbs’ and that her musculoskeletal examination and the range of
motion in her neck and back were normal. He ordered x-rays of her lumbosacral
joints and cervical spine. The x-rays showed “very minor marginal spurring of
the thoracic spine”. Otherwise there was no abnormality noted. On each of the
occasions the plaintiff was examined Dr. Marc Frechette noted she had no
limitation in her range of motion and that her musculoskeletal and neurological
examinations were normal.

[19]        
On January 16, 2009 the plaintiff complained of headaches and neck pain
to Dr. Sharon Frechette. She was advised to continue physiotherapy and massage
therapy as Ms. Sourisseau had told Dr. Frechette the treatments were helping
her with pain relief.

[20]        
January 16, 2009 was the last date on which the plaintiff sought
treatment for neck or back pain although she has continued to see Dr. Sharon
Frechette for other reasons.

[21]        
The plaintiff consulted a lawyer in Winnipeg, Mr. Wilder Q.C. to
represent her in her claim against the defendant. Mr. Wilder referred Ms.
Sourisseau to Dr. Chernish who saw her on October 24, 2008.

[22]        
Dr. Chernish provided a medical report to Mr. Wilder on November 5, 2008
with a follow up report of March 2, 2012. Dr. Chernish gave evidence at the
trial by video deposition.

[23]        
In his report of November 5, 2008 Dr. Chernish related that the
plaintiff told him the vehicle she was in was “rear-ended by a car with no
brakes coming down a hill…”. He noted that since the accident “she has been
treated with physiotherapy twice per week and massage therapy once per week”. He
noted she was taking three types of medication.

[24]        
Dr. Chernish wrote:

On examination, there was restricted flexion and extension of
the neck, which was of a moderate degree, as well as a moderate decrease in
side flexion of the neck and rotation of the neck. There was full range of
motion of the shoulders and lumbar spine. There were no focal or lateralizing
neurological signs.

On palpation, there was some tenderness of the thoracic
paraspinal musculature, the posterior cervical musculature and the pectoral
musculature. Her present complaints are soft tissue and of moderately severe
degree. They have been severe enough to cause a sleep disturbance.

On the balance of probabilities, her symptoms are related to
the motor vehicle accident. There was no previous history of headaches or
neck or back pain or high pain prior to the accident.

As a treatment, I advised her to continue on with her current
physiotherapy program. I also prescribed Amitriptyline 10 mg four hour before
bed for her chronic pain syndrome. I will review her again in one month.

My prognosis is that she will most likely recover over the
next 12-24 months. The chance of permanent disability is remote.

[Emphasis added]

[25]        
Most of Ms. Sourisseau’s complaints of injury are based on self reported
subjective complaints of pain and discomfort. This is commonly the case where a
plaintiff suffers soft tissue injury. It is trite law, however, that the court
must carefully scrutinize such evidence to ensure it has a “ring of truth”
given the nature of the injuries alleged, the course of the plaintiff’s
treatment, the opinions expressed by health providers and the surrounding
circumstances of the accident.

[26]        
One of the difficulties with the plaintiff’s claim arises from the
description she gave of both the accident and of the status of her pre-existing
health issues to the physicians and others who saw her subsequent to the
accident.

[27]        
As noted, the plaintiff told Dr. Chernish the vehicle she was in “was
hit by a car with no brakes going down a hill…” The impact caused minimal
damage to both vehicles and there was a very slight decline in the roadway.

[28]        
Ms. Sourisseau also told Dr. Chernish she had no prior complaints with
headaches, neck, back or hip pain prior to the accident. In fact, Ms.
Sourisseau had seen a massage therapist on a number of occasions prior to the
accident for treatment on most of the areas of complaints arising from the
accident.

[29]        
Ms. Sourisseau had attended massage therapy with Ms. Setter, a massage
therapist, for treatment of complaints of neck and back pain on numerous occasions
over the two years prior to the accident. The records of Ms. Setter indicate
multiple treatments to the back, “gluts”, hamstrings, “traps” and other areas
“from the knees up” between July 14, 2005 and May 3, 2007.

[30]        
Ms. Sourisseau also told Dr. Chernish she has been attending
physiotherapy twice per week and massage therapy once per week since the
accident. The reader would gain the impression, as did Dr. Chernish, that she
had commenced such treatment after the accident. As stated, this was not the
case. Again Dr. Chernish testified that had he known of such prior treatments
his opinion as to causation of the plaintiff’s injuries would have been
different.

[31]        
He testified:

Q.        .. I just want to know what exactly you relied on
in coming to your conclusion that the plaintiff was injured in this accident?

A.         Okay. The main — the main facts I relied on were
the patient’s history. She reported that she didn’t’ have headaches, neck or
back pain or hip pain before the accident and she suffered them after the
accident.

Q.        So on her history?

A.         Yes.

…

Q.        … Now, in fact your report says specifically:

 On the balance of probabilities, her symptoms are
related to the motor vehicle accident. There was no previous history of
headaches or neck or back pain or hip pain prior to the accident

And that’s at page 2.

A.         Yeah, that’s correct.

Q.        Now, again, if this information from the plaintiff
was — or from Ms. Setter was inaccurate or incomplete, if she had a previous
history of those complaints would it have changed your opinion that the subject
accident was the sole cause of her complaints?

A.         Yes.

[32]        
The massage therapist she attended, Ms. Setter provided a report which was
introduced as evidence at the trial. In her report she expressed the view the
nature of the injuries for which she treated the plaintiff was different in
nature and degree from those she had treated pre-accident. Ms. Sourisseau
testified to the same effect. I will return to this shortly when I consider Ms.
Setter’s evidence. Dr. Chernish did not have the benefit of seeing Ms. Setter’s
second letter (discussed below).

[33]        
Similarly, Ms. Sourisseau told Dr. Chernish she had been going to
physiotherapy treatments twice a week since the accident. This also was not
correct. As counsel for the defendant pointed out Ms. Sourisseau would have had
some 112 treatments by the time she saw Dr. Chernish in November, 2008. She
actually attended physiotherapy treatments 22 times between December 3, 2007
and October of 2008. Of note is that she had actually ceased attending
physiotherapy treatments by the time she saw Dr. Chernish.

[34]        
In short, Dr. Chernish’s medical report is of little use to the court. The
contents of the report are entirely dependent on the accuracy of what the plaintiff
reported to him. He had no knowledge of her prior medical history, believing, she
had no pre accident symptoms.

[35]        
Even assuming the description of the accident the plaintiff gave him and
his lack of understanding of her prior history, Dr. Chernish opined the plaintiff’s
expected recovery to be 12 – 24 months.

[36]        
The plaintiff saw a physiotherapist, Ms. Carrie Cole four months after
the accident on December 3, 2007 and continued with physiotherapy treatments
until October 9, 2008.

[37]        
The plaintiff relied on a report prepared by Ms. Cole dated December 20,
2008. Ms. Cole found Ms. Sourisseau had a “slightly limited lumbar and cervical
flexion” and that “muscular achiness” and headaches increased with prolonged
sitting and driving. She wrote:

Based on assessment findings my professional opinion is that
Miss. Sourisseau has sustained both cervical and lumbar spine strains secondary
to whiplash. The motor vehicle accident caused soft tissue trauma, joint hypo
mobility, and ligamentous irritation to the cervicothoracic and lumbar regions.
… In this case restrictions were noted at CO-C1, right C2-C6/7 and left L2-L5
facet joints which were probably due to the patients positioning on impact.

…

… Presently, the patient is
managing well with her home program and is asymptomatic; therefore, no further
physiotherapy treatment has been indicated as of October 9, 2008.

[38]        
Ms. Sourisseau attended Ms. Cole weekly until April, 2008 and then again
in the fall of 2008. On October 9, 2008 Ms. Cole wrote the plaintiff was “asymptomatic”
and managing well. Ms. Sourisseau’s last treatment date was actually October
16, 2008.

[39]        
Ms. Cole was not called for cross-examination. However counsel for the
defendant challenged the contents of her report on the basis Ms. Cole was not
familiar with Ms. Sourisseau’s prior medical complaints of pain to her neck and
back. As well counsel argued her report was vague about whether the plaintiff’s
injuries were caused by the accident or by her new job position she had taken
subsequent to the accident which required increased driving or prolonged
sitting.

[40]        
The difficulty I have with Ms. Cole’s opinion and report is similar to
that described earlier with Dr. Chernish’s opinion and report. Neither health
provider had any accurate history of the plaintiff’s state of health before the
accident. Accordingly neither had an accurate base upon which to offer an
opinion as to the extent to which the accident caused the plaintiff’s current
complaints.

[41]        
Ms. Sourisseau had seen Ms. Setter on at least 20 occasions over the two
years prior to the accident between July, 2005 and May, 2007. The plaintiff’s
complaints to her were documented as arising from carpel tunnel problems, aches
and headaches from teaching, vacuuming, housework and painting. The areas of
her body for which she sought treatment were the same areas for which she
sought treatment following the accident. As stated she had had treatments on
her back, “gluts/back, quads, hamstrings, traps” on numerous occasions.

[42]        
The plaintiff introduced two opinions from Ms. Setter: one of April 10,
2010 and a second dated March 13, 2012. Ms. Setter’s clinical treatment records
were also marked as exhibits. Ms. Setter first saw Ms. Sourisseau on August 22,
2007, some three days after the accident and several days before she saw Dr. Marc
Frechette. she stated:

… She showed signed of soft
tissue damage resulting from whiplash with limited R.O.M. in her cervical. I
found that she had severe decrease in all ranges of motions in neck and GH that
caused a lot of stiffness, pain numbness in to hands and arms. She also had
pain in her R-hip and into the anterior leg. Kim can’t lift her arms above her
head into full Glenohumeral abduction without getting severe pain and tingling
in to her phalanges and Glenohumeral joint.

[43]        
Ms. Setter noted in her first report she found “hypertension and
rigidity” in various muscles of the mid and upper back and neck. She did not
disclose she had seen the plaintiff for complaints in similar areas prior to
the accident. Her report referred to the “first time she came to me…”, a
statement which could easily lead a reader to assume the first time she saw Ms.
Sourisseau was subsequent to and in response to complaints arising from the
motor vehicle accident.

[44]        
Ms. Setter did note that the accident “affected her daily actives (sic)
greatly as Ms. Sourisseau had difficulty shovelling snow, writing, typing and
sitting. She did not note that Ms. Sourisseau had complained of each of these
activities on earlier occasions prior to the accident: on January 3, 2007,
November 10, 2005 and December 1, 2005.

[45]        
In her second report dated March 13, 2012, Ms. Setter stated the massage
therapy treatments the plaintiff had received prior to the accident “were
different than the ones she received afterwards.” she explained the plaintiff
prior to the accident had seen her “to help relieve slight muscle tension from
everyday stress/work stress” and that it generally related to her job or what
she had been doing: that after the accident Ms. Sourisseau experienced severe
muscle spasms, tension, headaches/migraines and numbness “in her hands hip and
leg.”

[46]        
There are several matters that are noteworthy about Ms. Setter’s two
reports. First, there is a marked difference between her findings and those of the
Drs. Frechettes, her attending physicians. Neither physician found any
limitation of the plaintiff’s range of motion nor did they make any other note
than her musculoskeletal examination was normal.

[47]        
Second, I find Ms. Setter’s opinions to be at odds with those of her
physiotherapist, Ms. Cole who found the plaintiff to be asymptomatic in
October, 2008. Ms. Setter wrote in her first report that Ms. Sourisseau’s
recovery had been “moderate” and that she was “85%” better as at April 10,
2010, the date of her first report.

[48]        
Lastly and significantly Ms. Setter’s clinical notes indicate that when
taking a history of the accident Ms. Sourisseau told her the accident occurred
when the defendant’s vehicle was “going full speed down a hill”. This is
clearly not how the accident occurred. Ms. Setter’s opinions may very well have
been influenced by the plaintiff’s description of the accident.

[49]        
I note also, however that Ms. Setter was not cross-examined on her
reports.

Discussion

[50]        
The plaintiff seeks non-pecuniary damages in the amount of $35,000,
special damages and subrogated health care costs and costs. The plaintiff
relies on Parihar v. Allan, 2006 BCSC 1505; Kahlon v. Prasad, (8
August 2006), Vancouver M053526 (S.C.); Krause v. Gill, 2006 BCSC 1459;
and White v. Stonestreet, 2006 BCSC 801.

[51]        
The defendant says the evidence the plaintiff sustained any injury is so
unreliable the court should find she sustained no compensable injury. Alternately
the defendant says the plaintiff should recover no more than $11,000 in
non-pecuniary damages. The defendant relies on Nichollson v. Armstrong,
2003 BCSC 1988; Lago v. Zimmerman, [1997] B.C.J. No. 3096; and Huynh
v. Vo, 2006 BCSC 1736.

[52]        
The principles underlying an award of non-pecuniary damages are set out
by Madam Justice Kirkpatrick in the often cited case of Stapley v. Hejslet,
2006 BCCA 34; 263 D.L.R. (4th) 19 at para. 46. The considerations to be taken
into account include the age of the plaintiff, nature of the injury, severity
and duration of the pain, disability, emotional suffering, loss of impairment
of life, impairment of family, marital and social relationships, impairment of
physical and mental abilities, and loss of lifestyle.

[53]        
The above list is not an exhaustive one but remains open depending upon
the circumstances of each case. While reference to other cases is useful as a
guide to the court in assessing damages, non-pecuniary damages must be assessed
in each case based on the unique circumstances of the case before the court.

[54]        
While the significance of the damage sustained in a collision may be a factor
with which the Insurance Corporation is concerned it is not a matter which necessarily
has a direct relationship to the plaintiff’s injuries. The issue for
determination is whether the plaintiff’s injuries were caused or contributed to
by the accident, Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (BCSC);
Boag v. Berna, 2003 BCSC 779.

[55]        
In this latter connection, the defendant called Mr. Goudie an engineer who
testified the change of velocity at the time of the collision was probably less
than 8 km/h.

[56]        
In my opinion, in the circumstances of this case, the change of velocity
alone is of little significance. At the time of impact Ms. Sourisseau
had her head turned sideways. The evidence clearly establishes she had had
pre-existing difficulties with neck and back pain. It likely took very little
by way of an impact to trigger a recurrence of that pain. The defendant called
no medical evidence to suggest otherwise.

[57]        
As stated, the court must be cautious in relying on the subjective
evidence alone of a plaintiff: Edmonson v. Payer, 2012 BCCA 114 at para.
2; Jezdic v. Danielisz, [2008] B.C.J. No. 2720; 2008 BCSC 1863

[58]        
In the present case, although there are a number of aspects of the
plaintiff’s case which are troublesome as I have outlined above, I accept the
plaintiff’s evidence she suffered soft tissue injuries to her neck, mid and
lower back as well as headaches and pain in her right thigh and knee. The
subjective symptoms she reported were consistently reported to her family
physician, to her physiotherapist and to Ms. Setter, the massage therapist.

[59]        
The evidence is conflicting as to when Ms. Sourisseau’s injuries
resolved. I accept the evidence of Ms. Cole that, in the main, the plaintiff’s
injuries had resolved by the date of the last physiotherapy treatment in
October, 2008 except for the odd flare-up.

[60]        
Accordingly, I find the plaintiff suffered pain and suffering from soft
tissue injuries for approximately 14 months with the odd flare-up continuing
thereafter until early 2010 when she testified she felt she had returned to her
pre-accident status.

[61]        
After reviewing the authorities submitted by counsel I award the
plaintiff $22,500 for non-pecuniary damages.

[62]        
In addition I award her health care costs in the amount of $687.35
payable to Manitoba Health and Healthy Living (“MHHL”) which have been paid on
her behalf by MHHL and are to be repaid by her to MHHL.

[63]        
The plaintiff has claimed special damages in the amount of $3,914.34 for
the cost of physiotherapy, massage therapy, medications and related matters.
She is entitled to recover that amount.

[64]        
Counsel may file submissions on the question of costs within 30 days of
issuing this decision should they be unable to agree.

“Greyell J.”