IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121122

Docket: 88518

Registry:
Kelowna

Between:

Jeremy Cummings

Plaintiff

And

Wayne Allan Shanks

Defendant

Before:
The Honourable Mr. Justice Betton

Reasons for Judgment

Introduction

[1]            
The plaintiff, Jeremy Cummings, seeks an award of damages for injuries
suffered by him in a motor vehicle collision that occurred on September 8,
2008. His damage claims fall into several categories.

[2]            
Liability for the collision is admitted by the defendant, Wayne Allan
Shanks, as is the fact that the plaintiff was injured in that collision.

[3]            
Two common issues underlie the positions of the parties as to the
entitlement to and amount of damages in each of those categories. The first is
characterizing the scope and severity of his injuries and symptoms. The second
is determining the extent of recovery that has or will be achieved.

[4]            
After providing some background information for context, I will deal
first with the two common issues and then address each of the separate
categories of damages claimed.

Background

[5]            
The plaintiff is a 42-year-old married father of two. His son was three
months old and with him in the car at the time of the collision. His wife was
also a passenger in the vehicle. His daughter was six years old at the time, and
was not in the car.

[6]            
The plaintiff was engaged to his wife Andrea Harte in 1994 and they
married in or about 1996. With a brief interruption to attend university to
obtain a graduate degree, he and his family have always lived in a residence in
West Kelowna owned by his wife’s parents.

[7]            
The plaintiff was raised in the Williams Lake area and started working
at a young age. Following graduation he was employed at a gas station which he
purchased through a Petro Canada program that facilitated such purchases over
time. He continued in that employment until approximately January 1999 when
changes by Petro Canada to their program prompted him to seek other employment.

[8]            
He tried working at the Investor’s Group doing commissioned sales. He
did not find himself a good fit for that and was not successful.

[9]            
He held other employment before he decided it best to upgrade his
education.

[10]        
He completed his Bachelor of Arts in April 2005. He then spent
approximately one year in Ontario completing the formal education component for
his Masters of Arts. He completed an internship with the Kelowna Museum in the
summer of 2006.

[11]        
By the summer of 2007 he had his Master of Arts and started contract
work with Indian and Northern Affairs Canada doing research. That part-time
work morphed into a full-time position with Indian and Northern Affairs. He
held this position at the time of the collision.

[12]        
As a result of injuries from the collision, the plaintiff was off work
for a full week initially. He then completed a graduated return to work and was
back to full-time employment by the end of 2008.

[13]        
On May 30, 2011 the plaintiff obtained full-time employment with the
British Columbia Ministry of Social Development as an employment assistance
worker. The position was in Penticton. As a result, he normally commuted from
West Kelowna to Penticton five days per week.

[14]        
In September 2011 the plaintiff was successful in a competition and
secured a promotion to assistant district supervisor with the Ministry. That is
his current employment. He continues to primarily commute from West Kelowna to
Penticton. He also spends some time in Oliver as part of his duties with the
Ministry.

[15]        
As a youth the plaintiff was active in sports, primarily hockey and
soccer. As an adult, and for some time leading up to the collision, he played
in a men’s recreational hockey league. That was interrupted by the
collision-related injuries. The plaintiff returned to recreational hockey in a
weekly men’s league in the fall of 2010.

[16]        
 He began jogging in or about January or February 2009. His runs vary in
length between 2 and 5 kilometres, and he does not adhere to a fixed schedule.

[17]        
Prior to the collision, the plaintiff participated in significant
landscaping projects at the residence shared with his in-laws. He often engaged
in heavy physical work while assisting in the various elements of that project.

[18]        
The plaintiff also provided landscape maintenance, including pruning
trees, lawn mowing and snow shovelling.

[19]        
At the time of the collision, the plaintiff was driving with his wife
and three-month-old son as passengers. They were stopped waiting to turn left,
with another vehicle stopped behind them. A third vehicle, driven by the
defendant, struck that vehicle from behind and pushed it into the rear of the
plaintiff’s vehicle. There was minor damage to the plaintiff’s vehicle, with
repair costs totalling approximately $1,000.

[20]        
Emergency personnel attended, and dealt primarily with the plaintiff’s
son who was extremely upset.

[21]        
Following the collision, the plaintiff drove himself and his family
members home. He unloaded groceries that they were carrying, and drove to his
daughter’s school to pick her up.

[22]        
Sometime later in the evening or the next day following the collision
the plaintiff began to note symptoms of the injuries he had received.

[23]        
Over time, those injuries were characterized as soft-tissue injuries to
his neck, shoulder and upper back, primarily on the left side. The left
shoulder emerged as the more complex and significant injury.

[24]        
In this decision, the left shoulder injury will be dealt with as having
two components. The first component is the shoulder injury as part of the
general and connected areas of soft tissue injury and pain, also including the
left sides of the neck, and upper back area. The second, although having
received some varying diagnoses or descriptions, will be referred to as the
rotator cuff injury.

[25]        
The plaintiff’s first medical attendances were with his chiropractor the
day following the collision, and his family doctor four days after the
collision.

[26]        
The symptoms associated with all injuries were most significant in the
first month, and diminished to the point where the plaintiff was able to return
to work full-time in January 2009. There was a continued recovery thereafter
until a plateau was reached by late 2009 or early 2010. There are fluctuations
in the ongoing symptoms, particularly with the rotator cuff, which to some
degree are managed with cortisone injections.

[27]        
The plaintiff has received treatment from his chiropractor, Dr. Manns;
his family physician, Dr. Van Heerden; as well as massage and
physiotherapy. He received some assistance with his efforts at rehabilitation from
a kinesiologist. The physiotherapy included inter-muscular stimulation. In
addition, he has received five separate cortisone injections into his left
shoulder, the most recent of which was administered on January 10, 2012.

[28]        
Expert opinion evidence on behalf of the plaintiff at trial came from Dr. Van Heerden,
Dr. Manns, physiatrist Dr. Vallentyne and occupational therapist
Debbie Ruggiero. The latter expert completed a functional capacity evaluation.

[29]        
The defence obtained opinion evidence from an orthopedic surgeon, Dr. Oliver.

Positions of the Parties

[30]        
The plaintiff seeks awards of damages for non-pecuniary damages, past
income loss, special damages, future care and loss of home maintenance
capacity.

[31]        
The future care claim is separated by the plaintiff in his argument into
medical care and yard and exterior maintenance. The latter is distinct from the
claim for loss of home maintenance capacity.

[32]        
The plaintiff does not advance a claim for loss of earnings capacity,
acknowledging that there is no real and substantial possibility that the
injuries will impact upon his earnings or career, which is now well
established.

[33]        
Generally, the plaintiff says that he is significantly physically
restricted and that this limits his scope of activities in most aspects of his
life. Those limitations allegedly translate into losses in the various
categories of damages claimed.

[34]        
The defence says that the plaintiff’s injuries were modest and there was
substantial recovery by the end of 2008. Since then, it claims that the
symptoms have been minor in nature.

[35]        
The plaintiff argues that, based on the evidence, non-pecuniary damages
should be assessed at $65,000. In support of that position, the plaintiff
relies on his own evidence and that of his wife and mother-in-law, Paulette
Harte. Each gave evidence as to the impact of the injuries upon the plaintiff.
The plaintiff also points to the expert opinions in support of that valuation.

[36]        
In its argument against the plaintiff’s quantum of damages, the
defendant points to the plaintiff’s degree of recovery, the timing of his
return to activities since the collision, and his accomplishments in his
employment. The defence relies as well on Dr. Oliver’s opinion. It says $20,000
to $25,000 is appropriate.

[37]        
The parties have agreed that past income loss should be assessed at
$4,350.

[38]        
The plaintiff says that special damages of $11,812.73 should be awarded.
Those include physiotherapy treatments, chiropractic treatments, the cost of the
kinesiologist, medications, some ergonomic equipment expenses, yard and home
maintenance expenses, gas mileage to and from various treatments and
assessments.

[39]        
The defendant says only those expenses incurred on or before March 1,
2009 should be recoverable. As of that date, Dr. Oliver offered the
opinion that the plaintiff should have ceased chiropractic and physiotherapy
treatment. The defendant says that costs incurred to that date were $3,012.42.

[40]        
Alternatively, the defendant argues that the plaintiff was receiving
chiropractic, physiotherapy and massage treatments prior to the collision, and
that the amount claimed after March 1, 2009 should at least be reduced for the
likely treatment expenses that would have been incurred in any event. It argues
that some of the chiropractor treatments after the collision were for lower
back pain which was not related to the collision. The defendant submits that the
claim should be reduced as a result. Still further, the defendant says that the
family physician, Dr. Van Heerden, only specifically recommended
physiotherapy and IMS and not chiropractic or massage therapy.

[41]        
The plaintiff seeks an award for future yard and exterior home
maintenance in the amount of $10,000. Separately, the plaintiff says that there
is the prospect that the plaintiff will acquire his own home where he would
have, but for the collision, carried out much of any heavy landscape or
renovation work that may have been required. He argues that such loss of home
maintenance capacity warrants an award in the amount of $25,000.

[42]        
The defendant says that any consideration of a diminished ability for
housekeeping or yard maintenance should be incorporated into the non-pecuniary
damages component. It says that the plaintiff’s claim for loss of home
maintenance capacity is too speculative.

[43]        
The plaintiff says that he should receive an award for future medical
care, based on Dr. Vallentyne’s recommendation, in the amount of $1,650
per year for two years. The defendant says that there is no medical
justification for that treatment and no award should be made.

Analysis

[44]        
As indicated in the introduction, the central challenge to the
assessment of the various damage claims is characterizing the severity of the
injuries and symptoms and the extent to which the plaintiff has recovered.

[45]        
The relevant evidence on these issues came from different sources and
there are important inconsistencies. Although my conclusions are based on the
evidence as a whole, it is convenient to consider the evidence in the following
categories:

1.       trial
evidence of lay witnesses including the plaintiff, his wife Andrea, and his
mother-in-law Paula Harte;

2.       the
plaintiff’s self-report to medical professionals and at examination for
discovery;

3.       medical
opinions;

4.       evidence
of the plaintiff’s functional post-collision abilities in relation to work,
recreational pursuits and home maintenance/landscaping activities.

[46]        
The evidence at trial in direct examination from the plaintiff, his wife
and mother-in-law paints a fairly grim picture.

[47]        
The plaintiff conceded that there has been significant recovery, however
his wife Andrea and her mother were more dramatic in their descriptions of the
continuing issues. Each of them acknowledged that there has been some recovery,
but described a man who, physically, is a shadow of his former self; a man who
can no longer undertake a great many of the physical tasks that he previously
could.

[48]        
The most notable examples given were in relation to home renovation and
landscaping tasks, but other examples were provided including limits to interactions
with his wife and children. They described a much more cautious type of
physical interaction by the plaintiff with his children, with limited physical
play.

[49]        
Andrea and Paula Harte both say that there has also been a significant
impact on the plaintiff’s emotional health. His wife spoke of a significant
reduction in their sexual relations. She also says that he spends little time
with his extended family. Indeed, Andrea Hart says the biggest change after the
accident was in his personality rather than his physical abilities.

[50]        
Paulette Harte says the plaintiff is now an introvert, very withdrawn,
and a morose older person. She says she no longer hears the plaintiff and
Andrea laughing together.

[51]        
It is of note that the plaintiff was not asked any questions regarding
the emotional or sexual consequences of the collision or the injuries he
received. My impression from his evidence generally was that he was frustrated
by the lingering effects of his injuries, but generally coping well emotionally.
None of the experts addressed such complaints, which I infer is because none
were presented to them. Without some evidence from the plaintiff or from
experts, I am left to question whether the evidence of his wife/mother-in-law
is accurate, or, if accurate, whether there may be something other than the
collision-related issues that is affecting the plaintiff’s interactions with
them. Another possible explanation is that the plaintiff is simply oblivious to
those changes seen by others, but without more this is not more than a
possibility. In these circumstances, I give no weight to the evidence
suggesting those problems are compensable here. In addition it contributes to
my caution in accepting at face value the balance of the evidence of the plaintiff’s
wife and mother-in-law.

[52]        
The remaining evidence of the plaintiff’s wife and mother-in-law, while
grounded in observations and experience, was, in my view, skewed by a desire to
impress upon the Court that there have been changes in the plaintiff. When I
consider their evidence in the context of the plaintiff’s own evidence and that
of the experts, I conclude that they exaggerated reality.

[53]        
There is inconsistency between the plaintiff’s description of his symptoms
to others and his evidence at trial. When the plaintiff was assessed by Dr. Oliver,
he described his recovery as 95 to 97 percent recovery in respect of the neck,
and 90 to 95 percent in respect of the shoulder.

[54]        
When asked to explain the meaning of those statements at trial, the
plaintiff said that those descriptions were in respect of his day-to-day state,
but that with respect to his rotator cuff injury and in the context of
physically demanding activity, he was no more than 10 percent recovered.

[55]        
There was one other time outside trial where the plaintiff was asked to
explain what he meant by “95 to 97 percent recovery”. That was at examination
for discovery. There, he described his shoulder as having been vastly improved.
In respect of his neck, he was asked the question, “Is it almost completely
recovered then, your neck?”. His response was, “I describe it as on the worst
day it’s about 95%. On the best day it’s about 97% of …”. He in effect gave
another definition or meaning to his reference of 95 to 97% recovery.

[56]        
In my view that description at discovery gives context to the comments
made to Dr. Oliver. It is logical that when the plaintiff says he is “95
to 97% recovered”, he had a peculiar definition of that phrase in his mind. Here,
however, the plaintiff has in effect offered two very different definitions,
one at his discovery and the other at trial.

[57]        
 In my view the “definition” offered at discovery is the accurate one.
If he had in mind the definition he offered at trial, a man of his intellect
and communication skills would not have said what he did at discovery or to Dr
Oliver. He would have added an explanation or qualifier to give his response
context as he did at trial. I am satisfied that he knew of the respective roles
of Dr. Oliver and defence counsel in the litigation process. Further, the
ordinary and logical interpretation of his words is consistent with that definition.
I do not accept the alternate definition he offered at trial.

[58]        
Dr. Vallentyne is a physical and rehabilitation medicine specialist
retained by the plaintiff for a medical-legal opinion. In that opinion Dr. Vallentyne
says:

… Mr. Cummings sustained a soft tissue injury of the
neck and upper back as a result of the 2008 MVA. This is a musculoligamentous
sprain/strain injury that is classified as a grade II whiplash-associated
disorder. The neck pain has settled down but not fully resolved. It is likely
that Mr. Cummings will suffer from chronic intermittent neck pain
triggered by overactivity such as prolonged desk work, overhead work, or
repetitive lifting/carrying.

… [I]t is my opinion that he
sustained an injury of the rotator cuff tendons of the left shoulder. He has
ongoing left shoulder pain interfering with activity. It is likely that the
left shoulder pain and dysfunction will be permanent.

[59]        
In evaluating the level of impairment Dr. Vallentyne states:

Mr. Cummings has the following permanent impairments:

(1) class 1/grade A disorder of the cervical spine meriting a
1% whole-person permanent impairment rating and

(2) class 1/grade C disorder of
the left shoulder meriting a 2% or-person [sic] permanent impairment
rating.

Dr. Vallentyne goes on
and notes:

He has activity intolerance due
to chronic soft tissue injury of the neck and upper back in that he has to
limit lifting, desk work, and overhead work to avoid flare-ups of symptoms. He
has activity limitations due to chronic tendinitis of the left shoulder in that
he has to restrict lifting, carrying, and overhead reaching in order to avoid
anatomic progression of the rotator cuff tendinopathy.

[60]        
In the functional capacity evaluation Ms. Ruggiero reports:

From a physical perspective Mr. Cummings
demonstrates the ability to perform work classified as near Medium with some
restrictions. His material handling abilities are limited above chest level due
to left shoulder pain. Forceful exertion such as pushing/pulling aggravates his
neck and shoulder pain which impacts his ability to perform some of his usual
yardwork and landscaping tasks around his home. Prolonged unsupported reaching
with his left arm or sustained work intensive postures at his neck also
increases symptoms.

[61]        
Dr. Van Heerden opines:

… Mr. Cummings had limited
ADL in the thirty nine months since the MVA including limitations with yard
work (now shoveling), pain with lifting his arms (pruning) and pain with
lifting his children. I am not optimistic that these complaints will get much
better as – in spite of aggressive treatments including medications,
Physiotherapy, Massage therapy, IMS and Chiropractor treatments and Cortisone
injections in his Left shoulder he still has significant pain and discomfort,
affecting his daily life. He will likely need to continue some of these
treatments in the future, possibly “long term”.

[62]        
The defence relies upon the opinion of Dr. Oliver and the
plaintiff’s own evidence in cross-examination to say that the limitations are
mild and have been mild since shortly after the collision.

[63]        
In his report of January 23, 2012, Dr. Oliver included the
following comments:

As a result of the motor vehicle accident of September 8,
2008, Mr. Jeremy Cummings sustained a strain to the soft tissues in the
region of the back of the neck and strain to the soft tissues at the left
shoulder.

In my opinion, the injury to the left shoulder likely
involved a strain to the rotator cuff tendons but there was not a tear of the
rotator cuff tendons.

…

In my opinion, there will not be a long term sequelae as a
result of this accident, neither to the function of his neck or to the function
of his neck or to the function of his left shoulder.

…

… I believe he is not impaired
or disabled to perform the activities that he chooses to perform either at his
work site or at his recreational pursuit of hockey and running.

[64]        
In his attendance upon the plaintiff, Dr. Oliver reported that:

By May 2011, … his recovery in
regard to his neck was “95 – 97% of the level of function that he had prior to
the September 2008 accident. With regard to his shoulder, he stated that he was
experiencing a 90 – 95% recovery.

[65]        
The plaintiff has returned to hockey in a recreational men’s league. He
endeavoured to describe how his game is different because of his injuries.
While I accept that there is some truth to that, the physical demands of the
game do give a perspective on the plaintiff’s limitations.

[66]        
It is my conclusion that the plaintiff was indeed largely recovered by
January 2009. He has been left with some symptoms in his neck area and in the
shoulder. The rotator cuff injury has been a more significant ongoing concern
and does, obviously, on the basis of the functional capacity evaluation,
restrict him in terms of heavier overhead work. He has been successful in his
employment and has been able to do some of the home maintenance and yard work.

[67]        
The limitations are in relation to quite specific activities which have
a modest overall impact on the plaintiff.

[68]        
I turn then to the damage claims by category.

Non-Pecuniary Damages

[69]        
There is no question the plaintiff has endured painful injuries, and he
has been frustrated during his recovery. Viewed in perspective, however, his
recovery has been quite good overall. The ongoing limitations are in particular
types of movements and activities primarily linked to his rotator cuff injury.

[70]        
The two most significant consequences to the activities of the plaintiff
have been inhibitions in the nature of his interaction with his children,
particularly his son, and yard or landscaping work. The former, I am satisfied,
has been particularly frustrating for the plaintiff. The latter has required
the plaintiff to approach the work more cautiously and at a slower pace. In
some situations he simply does not do it.

[71]        
He does play hockey, and despite his evidence about changing his game,
my impression from his evidence is that he can still play vigorously. That
ability assists in my conclusion that his limitations are quite specific in
nature and effect.

[72]        
In the fall of 2008, in particular, these restrictions were more
significant, but the resolution to the current plateau was relatively quick.

[73]        
Both counsel have provided authorities in support of their positions.
Among them, the leading case for its statement of the purpose of a general
damage award and its guidance in listing the types of factors that can be used
to determine the award is Stapley v. Hejslet, 2006 BCCA 34. Cases cited
for their specific outcomes are always helpful, but there are features of every
such case that can distinguish it from this case. The plaintiff referred to Hmaied
v. Wilkinson, 2010 BCSC 1074; Fata v. Heinonen, 2010 BCSC 385; Gignac
v. Rozylo, 2010 BCSC 595; S.T. v. S.K., 2010 BCSC 1564; Milliken
v. Rowe, 2011 BCSC 1458; and Araki v. Guitard, 2012 BCSC 165 where
non-pecuniary damage awards ranged from $40,000 to 85,000. The defence referenced
Garcha v. Gill, 2008 BCSC 1756; Bray v. Gaete, 2004 BCSC 335; Bourdin
v. Ridenour, 2009 BCSC 1295; and Densch v. Kirkpatrick, 2007 BCSC
277 where non-pecuniary awards ranged from $17,000 to $25,000.

[74]        
In my view the appropriate award is $40,000. I have articulated my
conclusions about the severity of the ongoing problems. The plaintiff has been
very successful in his employment. he is able to pursue his recreational
activities. He has always been physicaly active and able and is restricted now.
Having regard to the authorities and the evidence this outcome falls properly
within the range.

Past Wage Loss

[75]        
The parties have agreed that the plaintiff is entitled to $4,350.

Special Damages

[76]        
The plaintiff has undergone a variety of therapies and treatments. The
test to be applied is whether an expense that is reasonably related to the
collision is itself reasonable in the circumstances of the plaintiff.

[77]        
Here, that assessment requires looking at the nature of the treatment
and when, if at all, it should have been terminated.

[78]        
The defence primarily argues that the petitioner is only entitled to
medical expenses incurred up to March 1, 2009. This position relies on Dr. Oliver’s
opinion in February 2009 that most treatment should end. It was not, of course,
the only opinion available to the plaintiff. Aside from the opinion of Dr. Oliver,
there is no evidence to say the plaintiff had been told to stop any of these
treatments by his treating physicians or others.

[79]        
I am satisfied the plaintiff wanted to recover as quickly and completely
as possible. It is entirely reasonable for him to have continued despite the
opinion of the defence expert.

[80]        
The alternative argument of the defence has greater merit. The plaintiff
was receiving some treatments, mainly chiropractic, but also some physiotherapy
and massage, prior to the collision. Some of the post-collision expenses would
have been incurred without the collision. These are factors that cannot be precisely
calculated. The plaintiff concedes his frequency of visits to the chiropractor and
massage has now returned to his pre-collision level.

[81]        
A reduction of 10 percent of the claimed chiropractic expenses of $3,026
is appropriate, and they are therefore allowed at $2,723.40.

[82]        
The other treatment-related expenses claimed are allowed as follows:

[83]        
The remaining amounts claimed are for miscellaneous items. Of those set
out in the evidence, the plaintiff acknowledges that some of the yard care
expenses would have been incurred even if the accident had not occurred. There
is no evidentiary basis to calculate what that reduction should be. I have
allowed one-half of that expense. The amounts allowed are set as follows:

Costs of Future Care

[84]        
The plaintiff separates this claim into medical care and costs for yard
and exterior home maintenance.

[85]        
In respect of the latter, the plaintiff says based on expenses since the
collision an annual expense for items beyond the ability of the plaintiff
should equal approximately $571.85 per year. He suggests a present value
approximation is $10,000.

[86]        
In my view, some allowance is necessary for this. The plaintiff has
shown that he was a hard worker and inclined to do the heavier work. That work
has value. In these circumstances, and given the plaintiff’s relative youth, I
do award $10,000.

[87]        
In respect of medical expenses, the plaintiff relies on Dr. Vallentyne’s
recommendation for 10 to 20 physiotherapy sessions for the next two years.
Using midpoints this translates to $1,650 per year. While the defendant is
correct in pointing out Dr. Vallentyne says this will not be currative, I
find that it will be useful in the short term and to manage flair ups. There is
support for awarding some amount for these expenses. In Ho v. Dosanjh,
2010 BCSC 845 at paragraphs 91 and 92 Mr. Justice Silverman dealt
with a similar issue and said that it is unreasonable to provide long-term
treatment that provides the plaintiff with only periodic temporary relief, but
indicated allowances for shorter term programs may be appropriate.

[88]        
I therefore award $3,300 for physiotherapy sessions over the next two
years.

Loss of Home Maintenance Capacity

[89]        
The plaintiff presents this as a distinct claim from the yard care claim
under costs of future care above; similar in nature to a loss of earning
capacity. Based on historical evidence of the types of work done by the
plaintiff around the home and on the possibility that he and his family will
purchase a new home where such work may be required, a claim for $25,000 is
made.

[90]        
 I agree with the defence that the evidence here falls short of
establishing a substantial possibility of a loss of income or earning capacity
through this type of work.

[91]        
The prospects of the plaintiff purchasing a home are unknown, the nature
of what work might need to be been done is unknown, and whether that work might
be seen to have been for profit is unknown. In my view it is far too
speculative to allow for an award of damges in this form. The losses that have
arisen have been addressed under costs of future care.

Conclusion

[92]        
In summary the plaintiff is awarded damages as follows:

“D.A. Betton J.”