IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Frech v. Langley, |
| 2012 BCSC 1230 |
Date: 20120816
Docket: M118541
Registry:
New Westminster
Between:
Aneta Justyna
Frech
Plaintiff
And
William Bruce
Langley and Carol Langley
Malkit Kooner and
Gurnam Singh Kooner
Defendants
Before:
The Honourable Mr. Justice Truscott
Reasons for Judgment
Counsel for the Plaintiff: | D.J.M. Kennedy |
Counsel for the Defendants: | K.R. Tonge |
Place and Date of Trial: | New Westminster, B.C. June 25-29 and July |
Place and Date of Judgment: | New Westminster, B.C. August 16, 2012 |
[1]
The plaintiff was injured in two motor vehicle accidents in 2007 that
are the subjects of this lawsuit.
[2]
The first motor vehicle accident was on April 11, 2007. The plaintiff
was operating her motor vehicle in an easterly direction on 64th
Avenue in Surrey, B.C., around 9:00 a.m., with the intention of turning left,
or north, onto 144th Street at the intersection of 64th
Avenue and 144th Street.
[3]
The weather and road conditions at the time were dry. 64th
Avenue had two through lanes, both eastbound and westbound, with dedicated left
turn lanes at 144th Street for vehicles intending to turn north
and south onto 144th Street.
[4]
The plaintiff moved into the dedicated left turn lane to turn north onto
144th Street while the traffic signal light controlling traffic
eastbound and westbound on 64th Avenue was green.
[5]
She stopped part-way into the intersection facing the westbound left
turning lane, ahead of her stop line, to allow westbound through traffic to
clear the intersection.
[6]
While in that stopped position, she saw a vehicle in the westbound curb
lane on 64th Avenue slow down and come to a stop before the
intersection as the traffic light turned to amber.
[7]
She says at trial that no traffic was then approaching westbound in the
other through lane, although she agrees on her examination for discovery she
said she could not recall looking.
[8]
She proceeded across that through lane as the traffic light turned from
amber to red and she says she did not look down the through lane after she
commenced her left turn.
[9]
About one or two seconds later her vehicle was struck on the right rear
corner tire area, by a vehicle that she never saw.
[10]
She says her left turn signal was on at all times while she was in the left
turn lane and while she was turning left and she never stopped again after
stopping the first time in the intersection to allow traffic to clear. She says
she made one continuous left turn across the westbound through lanes.
[11]
She has little recollection of what happened at the scene afterwards.
She says she was crying and shook up although there was no impact to her
body in her vehicle. She recalls talking to the witness Linda Siemens, and to
the driver who hit her, but has no recollection of the conversations.
[12]
No police, ambulance or fire department vehicles attended. Damage to her
vehicle was in the tire area only and was repaired for approximately $80.
[13]
The defendant Carol Langley was the driver of the vehicle westbound in
the through lane on 64th Avenue that struck the plaintiffs vehicle
in the intersection with 144th Street. Her son David was in the
front passenger seat. The defendant William Bruce Langley who owned the vehicle
was not present.
[14]
She says that as she approached the intersection of 144th
Street she was going 55-60 kph and the traffic light was green. The speed limit
in the area was 60 kph. She says she noticed a greenish vehicle turning
right off 64th Avenue to proceed north on 144th Street as
she approached the intersection.
[15]
She also saw the plaintiffs vehicle in the eastbound left turn lane on
64th Street across the intersection. It was in a stationary
position.
[16]
She says the light turned from green to amber as she entered the
intersection still travelling 55-60 kph, and she saw the plaintiffs vehicle
pull into the intersection and continue until she came to a second stop in
front of her vehicle.
[17]
She applied her brakes but could not stop in time; and hit the right
rear wheel area of the plaintiffs vehicle with the right front corner of her
vehicle.
[18]
She parked her vehicle on 64th Avenue on the west side of the
intersection and walked back to the plaintiffs vehicle which was parked on
$144th Street, just north of the intersection. The plaintiff was
talking to a woman who got out of the green car. The plaintiff was shaking
quite a bit, but indicated she was fine.
[19]
Ms. Langley was very confused during cross-examination and during
her examination for discovery about directions and about the position of the
plaintiffs vehicle in relation to her vehicle at any point in time. However, I
am satisfied that I have set out the essence of her evidence accurately.
[20]
Counsel agree that the amber light for east/west traffic on 64th
Avenue at that intersection with 144th Street lasts four seconds,
followed by two seconds of a four-way red light to clear the intersection
before the north/south light on 144th Street turns green.
[21]
David Langley basically confirms his mothers evidence. He says he saw
the plaintiffs vehicle stopped in the left turn lane when his mothers vehicle
was approximately 40 feet away from the intersection and the traffic light was
still green.
[22]
The light turned amber as his mother approached going 55-60 kph and he
saw the plaintiffs vehicle start to make its turn before he also says it
stopped again in the intersection in front of his mothers vehicle.
[23]
His mother jammed on her brakes when the plaintiffs vehicle moved into
the intersection in front of her and came to a stop. He says that their vehicle
had no opportunity to stop in time. The impact to the plaintiffs vehicle was
light with damage to the right back tire area.
[24]
The evidence of the witness Linda Siemens was that she was in a
gray/bluish vehicle on 64th Avenue proceeding west in the curb lane
intending to turn north on 144th Street at the intersection. She
said she was slowing down to the make the turn and she saw the traffic light on
64th Avenue turn to amber.
[25]
She saw the plaintiffs vehicle in the opposite left turn lane in a
stationary position facing her with its turn signal on and with the front tires
just over the west crosswalk on 64th Avenue.
[26]
On seeing the plaintiffs vehicle she slowed down further to almost a
dead stop to allow the plaintiffs vehicle to turn in front of her vehicle onto
144th Street on the amber light before she turned her own vehicle.
She remained focused on the plaintiffs vehicle as she slowed down.
[27]
She says her vehicle had pretty much come to a stop before the east
crosswalk on 64th Avenue as the plaintiffs vehicle started to clear
the intersection.
[28]
She says she noticed in her drivers side mirror that no traffic was
beside her in the other through lane proceeding westbound.
[29]
She says all of a sudden a car came flying by her to her left, swerving
and fishtailing while screeching its brakes before it hit the back end of the
plaintiffs vehicle on the passenger side.
[30]
She says this impact occurred when the plaintiffs vehicle was already
two-thirds of the way in front of her vehicle in the curb lane.
[31]
She says that when the plaintiff commenced her left turn through the
intersection it was one continuous turn with no further stop. The plaintiffs
movement in the turn was normal to her with the plaintiffs left turn signal
on.
[32]
She is certain that the defendants vehicle was not beside her vehicle
when the plaintiffs vehicle began to turn. She says the plaintiffs vehicle
did wait for the intersection to clear before making her left turn.
[33]
Her evidence is that the interval of time between when she first noticed
the traffic light turning amber until impact was about four to five seconds.
She denies the light was still amber when the defendants vehicle entered the
intersection but she only assumes that because she was not looking at the light
at that point in time.
[34]
Ms. Siemens drew a rough diagram of the position of the vehicles at
the time of impact which is part of Exhibit 1. In that drawing the plaintiffs
vehicle is indicated as most of the way through the curb lane on 64th
Avenue at time of impact in accordance with Ms. Siemens evidence.
[35]
The plaintiff was 26 years of age at the time of this accident and 31
years of age at trial.
[36]
She suffered neck and upper back soft tissue injury and pain, as well as
right shoulder pain and right arm pain shooting down her arm. She also suffered
tension headaches.
[37]
Her family doctor was and is Dr. Cox. She saw him for the first
time for this first accident on April 19, 2007, although she had seen another
doctor in his clinic on April 11, 2007.
[38]
When Dr. Cox saw her on April 19, 2007 she was complaining of neck
pain, and pain in her upper arm although her headaches seemed to have settled.
[39]
On examination he found her neck to be tender to pressure and to have
mild limitation of movement, especially on left lateral flexion and rotation.
[40]
He diagnosed soft tissue injury and sent the plaintiff for
physiotherapy.
[41]
He saw her again on May 3, 2007 when he noted that her right shoulder
was still causing her trouble, although her neck was much better and her
headaches had improved. On examination at that time she was tender with some
pain on internal and external rotation and he advised her to continue with
physiotherapy.
[42]
He saw the plaintiff again on June 7, 2007 with complaints of continued
pain to the right side of her neck and right shoulder pain, with headaches. She
had not yet returned to work.
[43]
The plaintiff says she missed two weeks of work at Boston Pizza as an
assistant manager and lost gross income of $1,343. This wage loss claim is
agreed to by the defendants.
[44]
Dr. Cox prepared a medical report for ICBC on June 8, 2007 in which
he noted that on his examination of June 7th, the plaintiff had palpatory
tenderness in her cervical spine as well as pain and limitation of movement in
that spine.
[45]
He reported the plaintiffs complaints then as improved but still with
pain to pressure with full range of movement. He recommended additional
physiotherapy of four more sessions as needed in addition to four physiotherapy
sessions she had already had.
[46]
He noted at that time that the plaintiff was unable to carry heavy trays
at Boston Pizza and that the plaintiff informed him that she could not play
tennis because of her right shoulder pain.
[47]
His findings at that that time were of mild pain to pressure of the
cervical spine and mild pain with full range of motion. He recorded her injury
at Grade 2.
[48]
He did not see the plaintiff for injuries in this accident again until
after she had had her second accident on November 5, 2007.
[49]
The plaintiff says that at the time of the second accident she was still
suffering from frequent headaches, and pain in her neck, right shoulder and arm
while carrying out her daily chores and activities.
[50]
However, in a statement she gave on May 30, 2008, after the second
accident, she said that she had suffered minor injuries in the previous accident
of April 11, 2007 but had practically recovered from them by the time of the second
accident and that her primary injury in the previous accident occurred in an
area that was not injured in the second accident, that being her right arm.
[51]
In the crew report for the ambulance service that attended on this
second accident, the plaintiff is reported as indicting a relevant past history
of normally healthy with the denial of any medications.
[52]
By the time of the second accident, the plaintiff had left Boston Pizza
to work at the Bank of Montreal as a teller although she also continued to work
part-time at Boston Pizza two days a week taking manager shifts and server
shifts.
[53]
She says she moved to the bank to focus on obtaining a career and she
was tired of working nights at Boston Pizza.
[54]
This second accident of November 5, 2007 occurred when the plaintiffs
vehicle was rear-ended at 72nd Avenue and King George Highway in
Surrey in the morning while she was going to work.
[55]
She was in a stopped position waiting to merge onto King George Highway
when a vehicle driven by the defendant Malkit Kooner collided with the rear of
her vehicle with a hard jolt, causing her head to whiplash back and forth and
the vehicle to suffer approximately $700 of rear end damage.
[56]
Liability has been admitted for this accident by the defendants Kooner.
[57]
In this accident the plaintiff says that her neck pain, back pain, right
arm pain and headaches were all aggravated significantly. She is unable to say she
had improved at all before this accident.
[58]
The plaintiff had other pre-existing medical problems. She was prone to
migraine headaches that she says occurred about twice a year and which have continued
after these two accidents. In addition, she has the medical condition of
endometriosis which causes recurrent episodic very serve abdominal pain. This
condition has also continued after these two accidents and unrelated to them.
[59]
The plaintiff does not claim any migraine headaches are due to either of
these two accidents but does claim any ongoing tension headaches from her
injuries.
[60]
Her ongoing issues with the endometriosis affects her ability to work
from time to time and she also does not claim loss of income earning capacity
associated with that, but she does claim a loss of income earning capacity from
an alleged inability to continue working part-time at Boston Pizza while she
works full-time at the bank.
[61]
She says that she had to stop working at Boston Pizza completely in
March 2009 when the company hired another manager to do the managerial
shifts and they were no longer available to her.
[62]
She says all that was available to her at that time was part-time shift
work carrying and serving trays. This was too much of a strain on her neck,
back and arms for her to carry on.
[63]
She says it would not have made a difference for her to have tried other
part-time jobs because desk jobs would all have to be done during the day when
she works at the bank and any after-hours job would probably require the same ability
to use her neck, back and arms for physical work, which she says she cannot do.
[64]
She says if she could perform as a server at Boston Pizza she would
still work there part-time because she does not consider that she makes enough
money at the bank.
[65]
Her income at the bank has increased to in excess of $32,000 currently,
but she says that at Boston Pizza she got quarterly bonuses as well.
[66]
She has been told by the bank that she is doing well at her job and
exceeding targets, and in fact she recently received a promotion.
[67]
Following the November 5, 2007 accident she only missed two days of work
at the bank because of her injuries and suffered a loss of $216 in gross income.
Again this figure is agreed to by the defendants.
[68]
She says she took another week off work as part of her holiday time but
never used it for holidays as she rested from her injuries.
[69]
On November 7, 2007 she attended on Dr. Cox complaining of severe
pain to the back of her neck, her upper back, and mid-thoracic area. She had a
severe headache and felt quite shaky and jittery. She had missed her two days
of work by then and Dr. Cox recommended she take the rest of the week off
to see how she did.
[70]
He encouraged her to continue activities as tolerated and referred her
again for physiotherapy.
[71]
Dr. Cox saw her thereafter on December 20, 2007 for her motor
vehicle accident injuries.
[72]
At that time she complained of soft tissue pain to the left side of her
neck and Dr. Cox found her tender to pressure with limitation of movement
because of pain.
[73]
He noted that she had been to massage therapy.
[74]
Dr. Cox saw her again on January 21, 2008 in preparation for
another report for ICBC that day. In this report he indicated that palpatory
tenderness existed in her cervical spine and thoracic spine and pain was
produced in her cervical spine, with no limitation of movement.
[75]
His initial findings were of complaints of pain to pressure bilaterally,
but especially on the right side, with mild loss of movement in all directions
because of pain.
[76]
He reported the plaintiff told him at that time that she had improved 80-90%
but still had some tenderness and loss of motion with headaches.
[77]
The plaintiff denies ever telling Dr. Cox that she was 80-90%
better as she says she was not even 50% better.
[78]
Dr. Cox put down his current objective findings as mild tenderness
to pressure only and pain at extremes of motion only.
[79]
He noted that the plaintiff had had three massage treatments already but
he did not recommend any additional therapy.
[80]
The plaintiff says that she had started massage therapy in November 2007
and carried on for six weeks until December 2007 before stopping, even though
she was allowed another two weeks for this therapy. She says it was not helping
and made it worse.
[81]
The only medication Dr. Cox prescribed was Advil.
[82]
He noted that the plaintiff was able to work full-time as a bank teller and
was capable of carrying out her non-work activities and he considered that she
had done well and he expected future improvement.
[83]
He did not see the plaintiff again for motor vehicle accident related
complaints until June 2009 when she came in with posterior headaches coming
over the top of her head from her neck that he suspected were stress or tension
headaches and for which he gave her naprosyn as medication.
[84]
The plaintiff says that through 2008 and 2009 she was having tension
headaches every day but was getting used to them. Certain activity she wasnt
able to do and there were no days without pain.
[85]
She also says that this was the same situation in 2010 and right up to
the time of trial.
[86]
In the Surrey Memorial Hospital records for September 11, 2008, in a
Pre-Anaesthetic Questionnaire, the plaintiff was asked to check off areas in
which she had complaints. She did not check off any problems of joints, muscles
or neck but she checked off that she was active with sports and gardening.
[87]
The next time Dr. Cox saw the plaintiff for motor vehicle accident
complaints was on May 6, 2010 at which time she again complained to him of
tension headaches for which he gave her more naprosyn. She asked him what she
should do about it. He says he advised regarding chiropractor, physiotherapy,
exercises, etc.
[88]
After May 6, 2010 the next visit to Dr. Cox for motor vehicle
accident related complaints was on January 19, 2012 when she complained of
ongoing neck pain and some pain in her supraspinatus as well as pain in her
right shoulder.
[89]
At that time he noted that another doctor had recommended a supervised
exercise program for the plaintiff with which he agreed. He also noted that she
was getting better.
[90]
At trial he says he did not expect the plaintiff to come more often for
motor vehicle accident related treatment as there was not more he could do for
her. She followed all his advice for treatment and he considered her motivated
to get better.
[91]
The plaintiff took part in the supervised exercise program which ended
recently and she says it made her 80% better. Her right arm is better and she
does not get tension headaches every day. The program employed the use of
weights which made her muscles stronger.
[92]
Presently she says she is not remaining at 80% better because the
supervised program ended and the kinesiologist running the program suggested
that she wait on obtaining a gym membership to continue her exercise program
until it could be determined if ICBC would fund it.
[93]
The cost is $55 per month and the plaintiff says ICBC has recently
approved it. She is going to start soon.
[94]
She says she gets tension headaches every few days currently and her arm
is still sore with tingling in her fingers. She says she can get headaches while
doing nothing as well as during housework and at work.
[95]
Her sleep is better after completing the exercise program although she
says she sometimes wakes up in the night with shooting pains in her arm.
[96]
Prior to the first accident she says she enjoyed a lot of outdoor
activities such as tennis, boating, swimming, water skiing and golfing at the
driving range. She also enjoyed playing the piano two hours a day, two or three
days a week.
[97]
After the first accident she says she could not continue her tennis nor
her water activities and this has continued after the second accident. Her
piano-playing has been reduced because her arms get sore.
[98]
She has been able to go on vacation however to Washington State and the
Okanagan where she says she spent most of her time on the beach. She has also
vacationed in the Dominican Republic, Las Vegas, and Cuba where she enjoyed
herself.
[99]
She continues to enjoy dancing.
[100] She says
she now has to plan her household chore activities over many days to reduce her
soreness.
[101] The
plaintiffs mother says that her daughter did not have any problems with
headaches or soft tissue injuries in the five years prior to the two motor
vehicle accidents in 2007.
[102] Although
the plaintiff has not lived with her mother since she was 22 years of age,
she did live for a time in the same complex and saw her mother almost every
day.
[103] Her mother
confirms that prior to the accidents the plaintiff played the piano at her
place almost every time she came to visit for approximately one or two hours
each time.
[104] She
describes her daughter before the accidents as being very easy-going, ready for
a challenge, very active, and with a positive attitude towards life. She
socialized with her friends and liked to go camping.
[105] Following
the two motor vehicle accidents she says her daughter does not visit as often
and does not play the piano for more than five to ten minutes. She continually
rubs her neck.
[106] Her
daughter is not as active as before the motor vehicle accidents and her
attitude to life has become more frustrated and miserable. Her daughter has
evidenced tension headaches while around her.
[107] A friend
and former roommate, Ms. Snell says she was the plaintiffs manager at
McDonalds where they both worked prior to the plaintiff moving to Boston
Pizza. She says that the plaintiff was a hard worker.
[108] After the first
accident she saw the plaintiff at Boston Pizza carrying trays and bar tending and
saw her often asking for help.
[109] Prior to
the two accidents Ms. Snell and the plaintiff vacationed together in the
Okanagan, where they boated, water skied, swam, and camped. The plaintiff also
played tennis and had lots of friends and never complained of headaches. They
also liked to go to movies together.
[110] When they
lived together before the accidents, each assumed a share of household chores,
but after the accidents, when they lived together once again, she says the
plaintiff could not vacuum nor do any strenuous activities in the home and she
would see the plaintiff holding her neck.
[111] After the
accidents they still went to the beach together but the plaintiff no longer did
any water skiing or any water sports and remained on the beach relaxing.
[112] When they
went to the movies the plaintiff would get up and leave after 20 minutes after
looking at the screen gave her headaches.
[113] Ms. Snell
confirms that when they lived together and the plaintiff moved to the bank she
still continued some shift work at Boston Pizza and she came home holding her
shoulder and neck and complaining of headaches.
[114] She
confirms the plaintiff left Boston Pizza for the bank to start her career
because she did not want to work late at night.
[115] There has
not been any improvement that she has seen since the two accidents until the
supervised exercise program that recently took place.
[116] Ms. Pakdel
is a qualified kinesiologist who treated the plaintiff between February 2012
and May 2012 in this supervised exercise program.
[117] The
plaintiff reported to her the same complaints of pain in her neck, shoulder and
arm areas and disturbed sleep due to pain, with headaches.
[118] She tested
the plaintiff before and after completing the program and observed her neck
range of movement increased to almost what she considered to be normal in all
movements as did her range of motion of her shoulders.
[119] In her
initial report summary at the beginning of the program she observed the
plaintiff to suffer from poor strength and muscular endurance in her lower
limbs as well as poor posture and gait cycle. She also had decreased range of
movement in her neck and shoulder.
[120] The
proposed rehabilitation program was designed to include pain education, being
the development of a more positive attitude without a focus on pain, and to
increase her overall stamina through a stretching program, postural training
and weight training.
[121] The goal
was to strengthen the plaintiffs neck and back so that at the end of the
program she would know the exercise techniques and be able to continue the
program independently.
[122] By the end
of the program the plaintiff reported to her that the pain in her back, neck
and arms had decreased as had her headaches to a level where they were only
intermittent and not prevalent.
[123] The plaintiff
reported lots of pain relief and lots of activity increase. She said she could
lift heavy weights although it gave extra pain. She could read as much as she
wanted to with slight pain in her neck. She had slight headaches that came
infrequently, she could concentrate fully without difficulty, she could do as
much work as she wanted, drive her car without any neck pain, sleep with slight
disturbance of less than one hour of lost sleep and engage in all recreational
activities with some neck pain.
[124] She
reported to Ms. Pakdel that she could tolerate pain without using pain
pills, sit in a chair as long as she liked, and travel anywhere without extra
pain, and her pain had no significant effect on her social life apart from limiting
her more energetic interests, such as dancing.
[125] In her
discharge report, Ms. Pakdel stated the plaintiff reported to her an 80%
improvement in her level of pain intensity, and an 80% increase in her
pre-injury activities.
[126] She also
expressed the wish to continue the exercise program independently.
[127] Ms. Pakdel
reported the plaintiff able to perform the exercises and weight training with
no observed physical limitations and with increased range of motion in neck,
shoulders, and back, and with muscular strength, core stability, flexibility,
balance, posture and cardiovascular fitness.
[128] She
recommended the plaintiff continue with the exercise program independently and
be provided with a three month gym pass at a community centre close to her
home.
[129] Ms. Pakdel
says that if a client has a lawyer and asks her how you deal with ICBC about
payments for the gym pass she advises to talk to their lawyer as ICBC often
takes a long time to deal with these issues. If a client does not have a lawyer
and asks her directly what to do, she usually says to hold off until funding
approval is received.
[130] She
confirms that she did not tell the plaintiff to fund the gym pass herself and says
she got involved herself with ICBC about funding for the plaintiff.
[131] She agrees
the plaintiff was always motivated to continue her exercises and resume her
normal activities.
[132] Defence
counsel referred the plaintiff to Dr. McGraw for an independent orthopedic
assessment and he attended on the plaintiff for this assessment on October 20,
2011.
[133] The
plaintiff informed him that she was not completely recovered from the first
accident when the second accident occurred as she was experiencing ongoing
headache, neck pain, right shoulder pain, and right arm pain.
[134] The
plaintiff agreed at trial that this history given to Dr. McGraw was not
consistent with what she had said in her statement of May 30, 2008 was her
medical condition at the time of the second accident.
[135] Dr. McGraw
says he was told by the plaintiff that after the second accident she was sent
for physiotherapy for eight weeks which was somewhat helpful but because she
was obliged to pay for half of each treatment she could not afford to continue.
[136] The
plaintiff says it was massage treatments that she could not afford to continue.
[137] She told Dr. McGraw
that she had no pain in her right shoulder if she did not engage in any
physical activities but she found sustained activities such as keyboarding for
eight hours caused the right shoulder and arm to become painful.
[138] She told
him the pain in the right shoulder and arm radiated up into the neck and into
the base of the skull resulting in headaches and this problem got worse after
the second accident.
[139] At trial
she explains that she spends 70-80% of her work time on a computer.
[140] She told Dr. McGraw
that she had made no progress in her recovery in the previous three months and
she says at trial that this was because during this time she was receiving no
treatment and getting no exercise.
[141] She told Dr. McGraw
that no supervised exercise program was ever offered to her.
[142] Dr. McGraw
noted in his report that the plaintiff did not exhibit any non-organic activity
or pain modification behaviour.
[143] On
palpation of her skull base and neck, local tenderness was detected high up in
the cervical spine on the right and the superior vertebral angle of the right
scapula.
[144] He found
her motion of the cervical spine to be close to normal but with a complaint of
general stiffness.
[145] He
diagnosed soft tissue injury from both accidents but he did not consider the
treatment to date through physiotherapy had been optimal. It would have been
his preference that the plaintiff from early onset be involved in a supervised
active exercise program, preferably conducted by a university educated personal
trainer. He identified the objectives of such a program to be to overcome her
deconditioning, improve her posture, her flexibility, endurance, cardiovascular
fitness, and education regarding spinal health and methods of pain relief, such
as stretching.
[146] In the
absence of such a program he considered her response to injury to be customary,
namely, a reflex restriction of range of motion in her right shoulder and arm
in an effort to protect against injury.
[147] His long
term prognosis for recovery was good provided the plaintiff engage in a
supervised active exercise program and he recommended a three month program
three times a week on a one to one basis.
[148] Subsequently
Dr. McGraw received and reviewed the discharge report from the
kinesiologist of the active exercise program.
[149] He was
encouraged that the plaintiff had responded to the treatment with 80% recovery
and says this supports his prognosis in his report. He does acknowledge that
this was not a recovery to a complete lack of pain but it was still a good result
in his opinion.
[150] He says
his prognosis for good recovery means to return to her activities of daily life
but he is unable to predict that she will be pain free.
[151] Dr. Hershler
is a specialist in physical medicine and rehabilitation who was retained by
plaintiffs counsel to assess the plaintiff. He carried out this assessment after
Dr. McGraws assessment on January 9, 2012 and prepared a report of
January 10, 2012.
[152] On
physical examination he found movements of her head and neck to be tighter with
evidence of muscle resistance. She was unable to obtain full range of rotation
of the head to the right passively, although he could push her head through its
full range.
[153] Palpation
of the cervical spine was unremarkable but palpation of the right trapezius
muscle produced numerous muscle tender points across the top of the right
shoulder and down the medial aspect of the right scapula and under the nuchal
ridge at the base of the skull on the right side.
[154] This
tenderness was noted by withdrawal from pressure and verbal indications of
pain.
[155] She had
full range shoulder movements and intact shoulder girdle strength.
[156] His
diagnosis in his report was of injury to the right trapezius muscle and he
concluded this was the most likely reason for the numbness and pain in the
right arm, referred from the right shoulder, and for the cervicogenic headaches
which he considered likely to trigger the migraine variety at times.
[157] His
prognosis was that the symptoms are unlikely to resolve on their own accord and
more likely than not to persist indefinitely.
[158] He
recommended as well that the plaintiff be involved in a supervised exercise
program with the goal being to develop an individualized set of exercises that
she could do on her own.
[159] He stated
the objective of such a program was to increase her core strength in the neck
and shoulders in such a way that she would be able to build up endurance and
strength so as to manage the pain more effectively.
[160] At trial
he explains that in his opinion it is unlikely the pain will totally disappear
but with improved strength she can cope better.
[161] Although
he recognizes that the plaintiff has shown that she has pain tolerance, he
cautions that the ability to work through pain decreases with age.
[162] He agrees
that while the objective is to get people to function as best they can, pushing
them to be active does not necessarily result in the pain ending.
[163] He says
many factors can amplify pain but he agrees that if a person is totally
sedentary there is some amplification of the pain. A person who is motivated
and active will adapt and cope and function better with the pain.
[164] In general
he says it is best to treat with an active rehabilitation program as soon as
possible but each situation is different depending on the degree of pain. The problem
is that often pain blocks the benefits of therapy and the pain has to be
reduced to make the therapy worthwhile.
[165] He
reviewed Dr. McGraws report and holds Dr. McGraw in high regard and
he considers his findings to be similar to that of Dr. McGraws findings.
[166] Dr. Hershler
only had the two reports to ICBC that Dr. Cox prepared, as well as the
report of Dr. McGraw to review.
[167] He did not
have any clinical records from Dr. Cox to review nor any physiotherapy
records to review. He relied on the history the plaintiff gave him to be accurate
but he was satisfied that he still had enough information to give his opinion.
[168] He also
received and reviewed the discharge report from the kinesiologist dated May 15,
2012.
[169] He also
saw this as an improvement in the plaintiffs strength and flexibility,
although he cannot say it would have been the same result if the program had
occurred four or five years earlier. All he can say is it is better to have
this rehab program sooner rather than later.
[170] He cannot
be sure that the plaintiff will ever have 100% recovery in her symptoms but he
agrees the rehabilitation program has significantly improved her recovery.
Submissions of the Plaintiff
[171] Plaintiffs
counsel submits that I should accept the evidence of the independent witness Ms. Siemens
in its entirety on the circumstances of the first accident, and assess 100%
liability against the defendants Langley to go along with 100% liability for
the second accident against the defendants Kooner.
General Damages
[172] He submits
that both accidents have caused the plaintiff soft tissue injury to her neck
and right shoulder area along with tension headaches.
[173] Prior to
the accidents the evidence indicates she was a healthy, happy, socially active
young woman who enjoyed playing the piano.
[174] After the
accident her activity has been reduced to sitting on the beach while
vacationing and doing her housework while holding her neck.
[175] Counsel
seeks general damages for pain and suffering and loss of enjoyment of life in
the order of $80,000, relying on the awards in the cases of Whyte v. Morin,
2007 BCSC 1329; Hosking v. Mahoney, 2009 BCSC 803; Raun v. Suran,
2010 BCSC 793; and Kaleta v. MacDougall, 2011 BCSC 1259, where the
awards for general damages were all in the order of $75,000-$80,000.
[176] Past
income loss from the first accident is claimed in the agreed amount of $1,348
gross and from the second accident $216 gross for two days loss of wages
part-time at Boston Pizza, $499 gross for loss of one week off from the bank,
and a further $16,250 gross for the loss of the part-time Boston Pizza job from
March 2009 to date of trial at $5,000 per year.
[177] Loss of
future income-earning opportunity is directed towards the ongoing inability of
the plaintiff to obtain a second job along the lines of her Boston Pizza job
that she lost in March 2009.
[178] Counsel
seeks an award for this claim in the range of $40,000-$75,000 as awarded in Whyte,
Raun and Kaleta.
Failure to Mitigate
[179] Plaintiffs
counsel submits no finding of a failure to mitigate should be imposed on the
plaintiff for failing to take more physiotherapy treatments or massage and
chiropractic treatments as recommended by Dr. Cox which the defendants
allege would have resulted in the active exercise program having taken place
much earlier in time to assist the plaintiff in her recovery at an earlier
date, through a referral from Dr. Cox or her physiotherapist or massage
therapist.
[180] Plaintiffs
counsel submits no such finding should be made because Dr. Cox has said
the plaintiff was compliant throughout with all of his treatment
recommendations and he could do nothing more for her. Following the second
accident on January 21, 2008, he specifically declined to recommend any
additional therapy.
Adverse Inference
[181] Plaintiffs
counsel says no adverse inference should be drawn against the plaintiff for the
failure to file a report from Dr. Cox because counsel says Dr. Cox
was antagonistic and uncooperative and the plaintiff had Dr. Hershlers
report to rely on.
Submissions of the Defendants
[182] Defence
counsel submits the plaintiff should bear the majority if not all of the
liability for the first accident, relying on the evidence of the defendants
Langley that their vehicle was in the position of being an immediate hazard to
the plaintiffs vehicle under s. 174 of the Motor Vehicle Act, to
which the plaintiff owed a duty to yield, and the Langley vehicle could not
stop in time to avoid the collision.
General Damages
[183] On the
issue of general damages, defence counsel concedes that in the first accident
the plaintiff sustained soft tissue injuries to her neck, upper back, right
arm, with shoulder pain and headaches.
[184] However,
counsel submits that the injuries were only minor, and even the plaintiff
herself in her statement of May 30, 2008 agreed were practically recovered by
the time of the second accident of November 5, 2007. He submits she was fully
recovered by the time of the second accident.
[185] As a
result of the second accident of November 5, 2007, counsel submits that the
plaintiff did not suffer any right arm injury as her statement of May 30,
2008 indicates that she did not have any right arm injury in the second
accident.
[186] It is
conceded that there was some aggravation of the plaintiffs neck, right
shoulder and headaches, but the submission is made that by January 2008 she was
80‑90% recovered from her injuries because she told Dr. Cox that and
Dr. McGraws opinion should be accepted that the plaintiff presently has a
good chance of recovery with ongoing active exercise.
[187] Counsel
submits the award for non-pecuniary damages, taking into account an appropriate
reduction for failure of the plaintiff to mitigate her damages, should be in
the range of $25,000-$40,000, relying upon the cases of Currie v. McKinnon,
2012 BCSC 698; Co v. Watson, 2010 BCSC 950; Ponipal v. McDonagh,
2009 BCSC 461; Firoda v. Say, 2011 BCSC 1293; and Sandher
v. Hogg, 2010 BCSC 1152, most of which cases applied a percentage
deduction for failure to mitigate.
Past Wage Loss
[188] Defence
counsel agrees to a past wage loss made up of $1,343.34 gross for the first
accident and $216.32 gross for the second accident.
[189] However
with respect to the claim for a loss of vacation week, defence counsel submits
that there is no proof of any loss connected with that vacation week in terms
of lost wages or lost value, nor is there any proof that the holiday week was
not made up otherwise at a future point in time. Accordingly this claim should
be dismissed.
[190] The defence
denies any further loss to the time of trial from the plaintiff quitting her
Boston Pizza job in March 2009, taking the position that she made more than
enough at her bank job to satisfy her without a second job and there is no
evidence that she attempted to get any other part-time job to make up for this
claimed loss.
Loss of Future Income-Earning Capacity
[191] Defence
counsel submits there is no real and substantial possibility of a future loss
proven when the plaintiff has not made any efforts in the past to obtain
another second job, when she has a full-time job already at the bank that she
is fully capable of performing and which is a secure position in which she is
valued by the bank, and when her active exercise program has probably made her
stronger and fit enough to be able to return to work at Boston Pizza as a
server, if that is what she wishes to do.
Failure to Mitigate
[192] Defence
counsel submits that all awards to the plaintiff should be reduced to take into
account the plaintiffs failure to follow Dr. Coxs recommendation to take
more physiotherapy treatments following both accidents, including massage and
chiropractic treatments, up to and including May 6, 2010, being the last time
before January 2012 when Dr. Cox treated her for motor vehicle
accident-related injuries.
[193] Defence
counsel submits that with the evidence of Dr. McGraw and Ms. Pakdel
that an active rehabilitation program at an earlier time would have assisted
with the plaintiffs recovery at an earlier date, a referral at an earlier time
for such a program from Dr. Cox, or from the plaintiffs physiotherapist
or massage therapist, would have likely been made and have produced early
positive results for the plaintiff.
[194] It is
submitted that the plaintiffs failure to complete physiotherapy and massage
therapy, and failure to attend on Dr. Cox more often so that he could
recommend the active rehabilitation program at an earlier time, should result
in a reduction of 10-20% from the awards.
Adverse Inference
[195] Defence
counsel also seeks a ruling from the Court that an adverse inference is to be
drawn against the plaintiff for her failure to tender a report from Dr. Cox
after he disclosed in his evidence that he had prepared a report for court
purposes.
[196] It is
submitted that in the absence of any reasonable explanation, a finding should
be made that his report was not tendered because his opinion would not have
favoured the validity of the plaintiffs assertions that her continuing
physical complaints, her claim for loss of future earning capacity, and her
claim for future cost of care, are related to the accidents.
[197] Defence
counsel submits that she as counsel should not be criticized for failing to
cross-examine Dr. Cox on his opinions when he was in the witness box when
she had subpoenaed him and called him as a witness, and after the Court had
allowed her to ask the doctor any question whatsoever including on his
opinions, because no competent lawyer can be expected to ask a question that he
or she does not already know the answer to, and defence counsel did not have
any opportunity to see the report of Dr. Cox beforehand in order to know
what it said.
Analysis and Decision
Liability for the First Accident of April 11, 2007
[198] I accept
completely the evidence of the witness Ms. Siemens that the plaintiffs
vehicle almost cleared the westbound lane in which the defendants vehicle was
travelling, at the time of impact to her right rear wheel area. I find her to
be a very credible witness.
[199] I accept
her evidence that the plaintiffs vehicle did not stop a second time in the
intersection after starting up from her left turn lane to complete her turn,
but continued her turn in a normal fashion.
[200] I accept
her evidence that the defendants vehicle was not entering the intersection
when the plaintiffs vehicle began to turn left and it was not at that time
even with her own vehicle.
[201] I accept
her evidence that the defendants vehicle was flying by her, swerving and
fishtailing before it hit the plaintiffs vehicle, indicating that the driver
was travelling at an excessive speed.
[202] I reject
the evidence of the defendant Carol Langley and her son as to the circumstances
of the collision.
[203] I find
that the defendants vehicle was not in the intersection or so close to it as
to constitute an immediate hazard within s. 174 of the Motor Vehicle
Act at the time that the plaintiffs vehicle began its left turn.
[204] I find
that the defendant Carol Langley was negligent in failing to yield the right of
way to the plaintiffs vehicle by coming to a complete stop before the
intersection when the light turned to amber.
[205] I do find
that the plaintiff did not keep a proper lookout down the lane in which the
defendants vehicle was travelling as she commenced her left turn, but I
conclude that this did not contribute to the accident as she had the legal
right of way and the defendants vehicle should have yielded to her vehicle.
[206] With the
plaintiffs vehicle almost clear of the defendants lane of travel at the time
of impact, there was nothing that the plaintiff could do for her own safety to
prevent the accident.
[207] Even if
she had looked down the through lane and seen the defendants vehicle
approaching, she was entitled to rely on her vehicle having the right of way.
[208]
I accept as the applicable law what was said by Madam Justice Ballance
in the case of Henry v. Bennett, 2011 BCSC 1254, where she said:
Ms. Bennett was in a
position remarkably similar to that of the plaintiff in Kokkinis.
Although she did not see Mr. Henry prior to the collision, Kokkinis
indicates that it does not necessarily follow that she was in any way
negligent. Having said that, I wish to clarify that I do not read Kokkinis
as standing for the proposition that left-turning drivers are entitled to
proceed blindly on the assumption that oncoming drivers will obey the rules of
the road, without regard to their concurrent obligation to act reasonably as
the circumstances dictate. In my view, Ms. Bennett was entitled to proceed
on the assumption that oncoming traffic, including Mr. Henry, would act in
accordance with the law and come to a stop on the late amber, absent any
reasonable indication to the contrary and provided she comported herself with
reasonable care. Here, there was no contrary indication from Ms. Bennetts
standpoint. Indeed, she could see that the SUV across from her had complied
with the rules and she was aware as well that the flow of straight through
traffic had ceased some seconds earlier. She had no reasonable indication that
oncoming traffic in the form of Mr. Henry would proceed through the
intersection in clear violation of the rules of the road. Moreover, I find that
in all the circumstances she conducted herself prudently and with reasonable
care in negotiating her left turn. In contrast, Mr. Henry knew or
reasonably ought to have known that in all likelihood Ms. Bennett would
have carried through with her left turn at the final stage of the amber light,
and most assuredly when the signal turned red. He created an extremely unsafe
situation in failing to come to a stop.
[209] I hold the
Langley defendants totally responsible for the accident of April 11, 2007.
Plaintiffs Damages from the Accident of April 11, 2007
[210] I accept
the plaintiff sustained soft tissue injury with pain to her neck and upper back
as well as right shoulder and right arm pain. I also accept that she suffered
from tension headaches.
[211] I accept
that she took four physiotherapy treatments and missed two weeks of work and her
past wage loss claim is in the agreed amount of $1,343 gross.
[212] Her family
doctor, Dr. Cox, says she improved over the following two months and he
did not see her again until after the second accident. In a statement she gave
on May 30, 2008 after her second accident she said that she had only suffered
minor injuries in the first accident and had practically recovered from these
injuries by the time of the second accident.
[213] I accept
this was the state of her injuries from the first accident at the time of the
second accident.
Liability for the Second Accident of November 5, 2007
[214] Liability
has been admitted by the defendants Kooner for the second accident and
accordingly 100% liability will go against them.
Plaintiffs Damages from the Second Accident of November 5, 2007
[215] The
plaintiff aggravated her neck and back pain and headaches.
[216] She also
claims right arm pain but in the same statement of May 30, 2008 she said that
she suffered no right arm injury in this accident.
[217] Accordingly
I reject any claim by her for right arm injury as a result of the second
accident.
[218] At the
time of the second accident the plaintiff was working full-time at the bank and
part-time at Boston Pizza two days a week doing manager shifts and server
shifts.
[219] Following
this accident she missed two days of work at the bank for a loss of $216 of gross
income which is an agreed figure which I accept.
[220] The
plaintiff claims a further amount of one week loss of work when she took a
holiday week that she used to rest from her injuries. Dr. Cox says that on
November 7, 2007 he recommended she take the rest of the week off. This
supports her further claim for past loss of gross income of $499 which I allow.
[221] The
plaintiff makes another past income loss claim for the period of time
March 2009 to date of trial when she did not continue working at Boston
Pizza part‑time.
[222] She says
she had to give up the management shifts when another manager replaced her, and
was left with only the server shifts which she could not perform exclusively
because the serving trays were too heavy for her to carry with her injuries.
[223] Her friend
Ms. Snell says that she was told by the plaintiff she left Boston Pizza in
March 2009 because she didnt want to work late hours and was sore and tired of
working two jobs.
[224] The
plaintiff did not try to obtain any other part-time job to replace the Boston
Pizza part-time work that did not require heavy lifting. She says that any
other part-time job would have probably required the same lifting by her in all
likelihood.
[225] I reject
this claim. I am satisfied the plaintiff was content to work only one job at
the bank in this time period which was continuing to pay her sufficiently.
[226] If she had
wished to obtain another part-time job I am satisfied she could have found one
if she really wanted to. Not all part-time jobs require physical labour. Other
restaurants also require part-time managers and many part-time jobs in the
evening exist in places such as library and retail stores that do not require
heavy lifting.
[227] After the
accident on November 7, 2007, the plaintiff complained to Dr. Cox of
severe pain in her neck, back and mid-thoracic level with a severe headache. Dr. Cox
referred her for more physiotherapy but she apparently took massage therapy
instead.
[228] She says
at trial that the massage therapy was not helping and made it worse although
she told Dr. McGraw that it was somewhat helpful and told Dr. Hershler
that she felt she had some positive response.
[229] On January
21, 2008 she told Dr. Cox she had improved 80-90% but still had some
tenderness and loss of motion, with headaches.
[230] At that
time Dr. Cox did not recommend any additional therapy and the only
medication he prescribed was Advil.
[231] He says at
that time he expected further improvement in the plaintiff thereafter.
[232] Although
he subsequently saw her in June 2009, May 2010 and January 2012 when she
continued to complain of pain in her neck and back and headaches, he did not
alter his expectation.
[233] The
plaintiff took part in the supervised exercise program in this year 2012 before
trial, and says it made her 80% better as she doesnt get headaches every day
any longer.
[234] She says
the improvement is currently less than that because she has been waiting for
funding from ICBC for her gym membership to continue her exercises.
[235] I accept
that the plaintiff has recovered her physical condition from the second
accident to the extent of at least 80% and with continued effort her physical
fitness should improve over time.
[236] I accept Dr. McGraws
opinion that she should return to her activities of daily life although she may
not be completely pain-free.
[237] I also
accept Dr. Hershlers opinion that with improved conditioning she can cope
better with ongoing pain although the ability to work through pain will
decrease with age.
[238] I
conclude, however, that this pain that the plaintiff continues to suffer is not
debilitating to her to any significant degree. She is able to continue with her
pre-accident activities including recreational activities and her results from
the active exercise program indicate that she has improved from poor strength
and muscular endurance in her lower limbs as well as poor posture and gait
cycle, to near normal range of movement, significant improvements in her lower
back flexibility, and improvements in muscular strength, muscular endurance,
balance, coordination, posture and cardiovascular fitness.
[239] I agree
with defence counsels submissions on general damages and I assess her general
damages for pain and suffering at the amount of $35,000.
Failure to Mitigate
[240] I assign
no deduction from the general damages for failure to mitigate. Dr. Cox
says the plaintiff has always accepted his recommendations and treatment and he
had no reason to see her any further as there was nothing further that he could
offer her.
[241] No reports
were filed at trial from any physiotherapist or massage therapist to indicate
any recommendation for an earlier active exercise program so I cannot attribute
any such recommendations to them if more physiotherapy or massage therapy
treatments have been taken by the plaintiff.
Adverse Inference
[242] This is a
peculiar case in that an adverse inference is sought against the plaintiff for
failing to file a report from Dr. Cox, although Dr. Cox did in fact
give evidence at the trial at the instance of defence counsel.
[243] It is a
strange circumstance that defence counsel asks for an adverse inference that Dr. Cox
would have given unfavourable opinion evidence to the plaintiff at the same
time she says she did not ask Dr. Cox that same question in the witness
box because she wasnt sure what his evidence would be.
[244] Plaintiffs
counsel says that Dr. Cox was not cooperative and was in fact antagonistic
and he had Dr. Hershlers opinion to rely upon.
[245] Dr. McGraw
gave evidence and his prognosis for the plaintiff was for good recovery,
meaning a return to her activities of daily life, although he was unable to
predict that she would be pain-free. I accept this opinion.
[246] I cannot
envisage Dr. Cox having given any different opinion if his opinion had
been sought either by the plaintiff or by defence counsel in cross-examination.
[247] Therefore
I decline to draw any adverse inference.
Loss of Future Income-Earning Capacity
[248] The
plaintiff is working full-time for the bank. She has no plans to change that.
She has the physical ability to carry out her responsibilities. She has the
present physical condition to handle any office employment and perhaps those
kind of employments that require some physical effort, although not
significantly so.
[249] In my view
she may even be able to take on a part-time job again at Boston Pizza as she had
before.
[250] I do not
consider that there is any real and substantial possibility of a future loss
existing.
[251] Dr. Hershler
says that if she continues to have pain in the future it will be more difficult
for her to work through the pain. However I have concluded that any ongoing
pain is not debilitating to any degree and if there comes a time in the foreseeable
future when she cannot keep up her physical conditioning, I expect that it will
either be due to her problems with migraine headaches or endometriosis, or for
other reasons unconnected to pain.
[252] I decline
to also make any award under this heading as well.
Summary
1. The
defendants Langley are liable to the extent of 100% for the first accident of
April 11, 2007.
2. Past
gross income loss of the plaintiff from the first accident is set in the agreed
amount of $1,343. I trust counsel can determine the net loss amount to be
inserted in the judgment.
3. The
defendants Kooner are liable to the extent of 100% for the second accident of
November 5, 2007.
4. Past gross
income loss of the plaintiff from the second accident is set in the agreed
amount of $216 plus $499. I trust counsel can determine the net loss amount to
be inserted in the judgment.
5. General
damages of the plaintiff from both accidents is assessed in the amount of
$35,000.
6. The
plaintiffs claim for loss of future income earning capacity is dismissed.
Costs
[253]
In the absence of any Offer to Settle affecting the matter of costs, the
plaintiff will have her costs under Appendix B at Scale B.
The
Honourable Mr. Justice Truscott