IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | McConvey v. Hart, |
| 2013 BCSC 1058 |
Date: 20130617
Docket: M127600
Registry:
New Westminster
Between:
Pamela McConvey
Plaintiff
And
George Hart
Defendant
Before:
The Honourable Madam Justice Ker
Counsel for Plaintiffs: | P. Formby |
Counsel for Defendants: | D. Darman
|
Place and Date of Trial: | New Westminster, B.C. April 23-27, 2012 September 14, 2012 December 17-18, 2012
|
Place and Date of Judgment: | New Westminster, B.C. June 17, 2013 |
TABLE OF CONTENTS
III. Credibility:
Should the plaintiff be believed?
A. Before the
accident: Pre-accident health, employment and activities
1. Physical
health prior to the Accident
3. Employment
Prior to the Accident
1. Physical
symptoms and status long term since the accident
3. Employment
since the accident
V. Medical and Expert
evidence
1. Neck and
Shoulder Symptoms and Myofascial Pain Syndrome
5. Depression,
anxiety, IBS and PTSD
IX. Loss of
Future Earning Capacity
I.
Introduction
[1]
The 49 year old plaintiff, Pamela McConvey, claims damages for injuries
she sustained in a motor vehicle accident on May 20, 2008 (the accident) when
her vehicle collided with a vehicle driven by George Hart, the defendant in
these proceedings, in the vicinity of the intersection of 144th St.
and 60th Ave. in Surrey, British Columbia. Four and a half years
later the plaintiff says her injuries have not resolved.
[2]
The defendant admits liability for the collision but disputes the issue
of causation for and the extent of the plaintiffs injuries and the amount of
damages claimed, in particular the plaintiffs claim for past loss of income
and future loss of earning capacity.
[3]
By the time of the trial, Mrs. McConvey had been married to David
McConvey for 22 years. They have two children: a daughter aged 21 years and a son
aged 19 years.
[4]
On May 20, 2008, Mrs. McConvey was driving her 2005 GMC Sierra Crew Cab
pickup truck northbound on 144th St. in Surrey when Mr. Hart, who
was driving a 1999 GMC Jimmy SUV westbound on 60th Ave., failed to
stop at the stop sign on 60th Ave that controlled entry to the
intersection with 144th St. Mr. Hart, who effectively blew the stop
sign, continued westbound on 60th Ave. and directly into the path
of Mrs. McConveys pickup truck. Mrs. McConvey, who clearly had the right of
way, was unable to take any evasive action. Her pickup truck collided with the
drivers side door of Mr. Harts SUV.
[5]
Mrs. McConvey was wearing her lap and shoulder belt and her headrest was
properly adjusted. The force of the impact of the vehicles caused the drivers
side air bag in Mrs. McConveys vehicle to deploy. Mrs. McConvey was struck on
the left side of her face and her lip was cut. She sustained bruising to her
left shoulder, down the side of her chest and on her left breast.
[6]
Emergency personnel responded and attended at the scene. Although Mrs.
McConvey was in shock and very shaken up after the collision she declined to go
to the hospital in the ambulance. Emergency personnel from the Surrey Fire
Dept. drove her to her home.
[7]
Mrs. McConvey, who was 44 years old at the time of the accident, is
currently unemployed although she does assist her husband from time to time with
administrative paper work associated with the running of his business. Mr.
McConvey is self-employed as an aluminum railing sales person and installer,
operating his own company known as Daves Aluminum since 2008.
[8]
Mrs. McConvey asserts she sustained moderate soft tissue injuries to her
neck, left shoulder area, lower back and ribs. It is the position of the
plaintiff that her soft tissue injuries have not resolved and she continues to
suffer pain from the injuries including developing myofascial pain syndrome
insofar as the neck and shoulder injuries are concerned. As well, she asserts
that she continues to suffer from headaches, sleeplessness, fatigue, and anxiety,
as well as symptoms associated with depression, post-traumatic stress disorder
(PTSD) and irritable bowel syndrome (IBS). It is the plaintiffs position
that all these conditions are either as a result of the accident or are
indivisible from the injuries sustained in the accident.
[9]
A complicating feature to this case lies in the fact that five days
before the accident, on May 15, 2008, Mrs. McConvey suffered a significant psychological
trauma when she learned that her brother had committed suicide by jumping off the
Alex Fraser Bridge in rush-hour traffic. Mrs. McConvey was deeply traumatized by
this event. To cope with the anxiety of her brothers death she was prescribed
Lorazepam a day or two later. However, according to Mrs. McConvey, it was not
until the summer of 2010 that she became seriously depressed over the death of
her brother.
[10]
Unrelated to the accident but impacting on the preparation of expert
reports in this case is the fact that by the end of November 2011, Mrs.
McConvey was exhibiting symptoms of a serious infection including a rash on her
body. By December 22, 2011 she was hospitalized for a serious streptococcal infection.
She remained in Peace Arch Memorial Hospital in Surrey, B.C. for about 10 days.
After making a full recovery she was discharged from the hospital on January 2,
2012.
II.
Issues
[11]
Liability has been conceded by the defendant. Accordingly, the primary
issues at trial include: (i) causation with respect to the various injuries
Mrs. McConvey claims she sustained as a result of the accident and which she
asserts continue to affect her; (ii) the proper measure of damages under the
various compensable heads; and (iii) whether the defendant has established that
the plaintiff failed to mitigate in respect of the issues of non-pecuniary
damages and past loss of income.
[12]
The defendant argues that Mrs. McConveys soft tissue injuries resolved
by May 2009 and that some of the injuries, in particular those related to her claims
of depression, PTSD and IBS, were not caused by the accident. The defendant also
contends Mrs. McConvey failed to mitigate by not continuing to do the exercises
she learned while attending physiotherapy in the summer of 2008. The defendant further
argues there should be no award for future loss of earning capacity and any
award for past loss of income should be limited to Mrs. McConveys return to
work on October 6, 2008.
III.
Credibility: Should the plaintiff be believed?
[13]
Before addressing the evidence and my findings in this case it is
necessary to address whether Mrs. McConveys evidence ought to be accepted as
to the nature of her injuries and limitations. The defendant submits Mrs.
McConvey recovered fully from the accident by May 2009 and that her claims of
continuing injury are not supported by the medical evidence. Moreover, the
defendant argues that the evidence of a neighbour, Mrs. Todd, observing Mrs.
McConvey moving a wheelbarrow of gravel and assisting her husband unload
railings and materials from his vehicle is inconsistent with the plaintiffs claims
of continuing pain and physical limitations as a result of the injuries. The defendant
suggests that Mrs. McConvey is not a credible witness based upon her
explanation for the observations of Mrs. Todd as well as a number of other
features of her evidence, including her overall defensive demeanour on
cross-examination. The defendant argues that Mrs. McConvey has tailored her
evidence to embellish the impact of her injuries from the accident on her
ability to work, to care for herself, and to do other household chores.
[14]
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, as
follows:
Credibility involves an assessment of the
trustworthiness of a witness testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides (Raymond
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The
art of assessment involves examination of various factors such as the ability
and opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3
S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence
depends on whether the evidence is consistent with the probabilities affecting
the case as a whole and shown to be in existence at the time (Faryna at
para. 356).
[15]
And in Re: Novak Estate, 2008 NSSC 283 Justice Warner outlined
the general principles used in assessing credibility stating at paras. 36 and
37:
[36] There are many tools for assessing
credibility:
a) The ability to consider inconsistencies and
weaknesses in the witness’s evidence, which includes internal inconsistencies,
prior inconsistent statements, inconsistencies between the witness’ testimony
and the testimony of other witnesses.
b) The ability to review independent evidence that
confirms or contradicts the witness’ testimony.
c) The ability to assess whether the witness’
testimony is plausible or, as stated by the British Columbia Court of Appeal in
Faryna v. Chorny, [1951] B.C.J. No. 152, 1951 CarswellBC 133, it
is "in harmony with the preponderance of probabilities which a practical
[and] informed person would readily recognize as reasonable in that place and
in those conditions", but in doing so I am required not to rely on false
or frail assumptions about human behavior.
d) It is possible to rely upon the demeanor of the
witness, including their sincerity and use of language, but it should be done
with caution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, paras.
70-75).
e) Special consideration must be given to the
testimony of witnesses who are parties to proceedings; it is important to
consider the motive that witnesses may have to fabricate evidence. R. v.
J.H., [2005] O.J. No. 39 (Ont. C.A.), paras. 51-56).
[37] There is no principle of law that requires a
trier of fact to believe or disbelieve a witness’s testimony in its entirety.
On the contrary, a trier may believe none, part or all of a witness’s evidence,
and may attach different weight to different parts of a witness’s evidence.
(See R. v. D.R. [1996] 2 S.C.R. 291 at para. 93 and R. v. J.H., supra).
[16]
Finally, as this is a case involving subjective complaints of pain it is
useful to caution myself with respect to such matters. To that end, the
decision of Madam Justice Gray in Bissonnette v. Horn, 2012 BCSC 518 at
para. 62 provides a succinct précis of the principles to bear in mind:
[62] This is a case involving subjective
complaints of pain. The case of Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.), is often cited as a reminder of the approach the court must take
when assessing injuries which depend on subjective reports of pain. At 397-399
of the reasons for judgment, then Chief Justice McEachern wrote:
The assessment of damages in a moderate or moderately
severe whiplash injury is always difficult because plaintiffs, as in this case,
are usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.
…
Perhaps no injury has been the subject of so much
judicial consideration as the whiplash. Human experience tells us that these
injuries normally resolve themselves within six months to a year or so. Yet
every physician knows some patients whose complaint continues for years, and
some apparently never recover. For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at a
fair and reasonable compensation. Previously decided cases are some help (but
not much, because obviously every case is different).
…
In Butler v. Blaylock, decided 7th October
1981, Vancouver No. B781505 (unreported), I referred to counsels argument
that a defendant is often at the mercy of a plaintiff in actions for damages
for personal injuries because complaints of pain cannot easily be disproved. I
then said:
I am not stating any new principle when I say that the
court should be exceedingly careful when there is little or no objective
evidence of continuing injury and when complaints of pain persist for long
periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent that his complaints of pain are true reflections
of a continuing injury.
[17]
Although Mrs. McConvey became defensive at times in cross-examination,
that may be accounted for in part by the fact that she was on the witness stand
for two days and exhibited signs of fatigue, physical discomfort while
testifying (moving between standing and sitting and stretching her neck and
back) and towards the end of her evidence, confusion. While there may always be
cause for suspicion that a party has a motive to fabricate to advance their
position, I do not find that to be the case with Mrs. McConvey. I found her
evidence as a whole to be forthright, consistent and inherently believable. Significantly,
her evidence as to continuing physical difficulties and accompanying pain was
largely confirmed by other witnesses, including her husband and the two experts
(Dr. Shuckett and Mr. Shew) called on her behalf who observed physical
limitations in Mrs. McConveys neck, shoulder and lower back. Moreover, the
evidence of Dr. Meek, a defence witness, confirmed ongoing spasm and
difficulties in Mrs. McConveys shoulder with a course of trigger point
injections being commenced in 2011.
[18]
It was apparent that Mrs. McConvey is a woman who endeavours to put on a
brave face to the world and tried to portray herself that way with her
employers after the accident. She also struck me as someone who does not like
feeling like an invalid and from time to time may over-exert herself in what
she does, e.g. assisting with raking or even shovelling gravel or carrying
materials from her husbands vehicle, and then feels the after-effects of
overextension the next day. It cannot be forgotten that Mrs. McConvey has not
been completely incapacitated by the injuries she sustained in the accident;
rather she testified to the symptoms that continue to bother her four years
post-accident (at the time of trial). To suggest that any attempts to return to
activities previously engaged in prior to the accident, even on a more measured
basis or not measured but which brings unwelcome after-effects is to damn
plaintiffs to a catch-22 scenario. They are criticized either way; if they try
to engage in pre-accident activities, they are said to be exaggerating the
effects of their injuries. Similarly, if they fail to endeavour to engage in
pre-accident activities they are also criticized as exaggerating the effects of
their injuries.
[19]
It is also clear that Mrs. McConvey has suffered a number of significant
psychological traumas prior to and post-accident. While those traumas may have
an impact on her and her perspective of her recovery, not all are attributable
to the accident based on the evidence adduced in this case. I am cognizant of
those difficulties and bear them in mind in my assessment of Mrs. McConveys
credibility and the case as a whole.
[20]
It was apparent from Mrs. McConveys evidence that her life has been
changed by the accident. Prior to it, Mrs. McConvey was a busy, energetic and
largely self-sufficient woman. She expressed anger, frustration and
disappointment about the limitations she has experienced in respect of her employment
and other activities since the accident. She described daily pain in her neck,
shoulder girdle area and lower back as well as headaches. Her sleep has been
affected since the accident and she now has to sleep in a completely different
position than she did for the past 40 plus years. She also described suffering
from IBS and depression with those two conditions largely coming to the fore in
August 2010. However, I was left with the impression from the whole of the
evidence that these latter two conditions were largely attributable to her
brothers suicide and her delayed reaction to that trauma, which surfaced well
past the accident.
[21]
Mrs. McConvey has largely followed recommendations for treatment. She
undertook a course of intensive physiotherapy in the months after the accident
and returns to it from time to time when she experiences flare-ups. She
continues to take medication to assist her with the pain and to help her sleep.
She also takes medication for her depression which assists her as well in
dealing with the continuing pain symptoms. Since 2011 she has been receiving
trigger point injections in her shoulder to assist with the spasms and pain she
continues to experience there. Her main form of exercise is walking.
[22]
Her performance on testing conducted by Mr. Dominic Shew (a
work/functional capacity evaluator) was negative for signs of malingering or
overreaction to pain symptoms although she underestimated her abilities in two
areas. The same can be said in respect of her examination by Dr. Rhonda Shuckett,
the rheumatologist who assessed her in June 2011.
[23]
In summary, I found Mrs. McConvey to be a largely credible witness and
for the most part, I accept her evidence. I turn now to a consideration of the
evidence and the specific injuries reported by Mrs. McConvey. I have had the
benefit of comprehensive submissions, both written and oral, to assist me and
although I may not refer to every item of evidence adduced in this trial, I
have considered it all in reaching my conclusions.
IV.
Facts
[24]
At about 10:00 a.m. on Tuesday May 20, 2008, Mrs. McConvey was driving
to her daughters high school to retrieve her as she had sprained an ankle in
her gym class. Mrs. McConvey never arrived at her daughters school as she was
involved in the accident that is now the subject of this litigation. Mrs.
McConvey was not at her usual place of employment that day as she was dealing with
the recent family tragedy of her brothers suicide referred to previously in
these reasons.
[25]
Mrs McConvey was not able to go to work on Friday May 16, 2008 as she
was too distraught and was dealing with the aftermath of her brothers death. Mrs
McConvey saw Dr. Blackshaw at the Apple Medical Clinic on May 18, 2008 to
obtain an anti-anxiety, sleep, depression aid and was prescribed Lorazepam
which she understood to be an anti-anxiety medication and a sleep aid. She
explained that she did not see her regular family physician, Dr. Garvin, on
that day because she attended a walk-in clinic near the home of her deceased
brothers ex-wife instead. The attending doctor turned out to be the physician
who had delivered Mrs. McConveys children and with whom she was familiar.
[26]
Apart from the significant psychological blow that her brothers tragic
death wrought upon her, Mrs. McConvey was otherwise in good health with no
physical or emotional difficulties prior to the accident. At the time of the
accident, although on bereavement leave for her brothers accident, she had
been steadily employed in various positions for most of her adult life. Her
last permanent employment before the accident had been approximately two years
in duration in an administrative capacity with a private automotive school in
Surrey in a position that she says she loved.
A.
Before the accident: Pre-accident health, employment and activities
1.
Physical health prior to the Accident
[27]
Prior to the accident, Mrs. McConvey was in good health and was a
relatively energetic person. She testified she had no difficulties with her
neck, shoulders, upper back area, torso or even her lower back with one
exception.
[28]
In 1998 Mrs. McConvey had triple fusion back surgery to fuse her L4, L5
and SI vertebrae together. The full recovery time from this operation was about
one year. Mrs. McConvey fully recovered and described the surgery as 100%
successful. In the five years prior to the accident she felt wonderful and had
no difficulties or pain with her back.
[29]
Under cross-examination, Mrs. McConvey had no recollection of having
Workers Compensation Board Claims of back strain related to her waitressing
job in February and March 2003 where she was off work for a number of days. However,
she said she had no reason to believe the documents supporting these incidents
as shown to her were inaccurate. She also had no recollection of a claim of
neck pain in March 2005 as documented in her family physicians clinical
records. I find that these events were of little significance in the overall
context of Mrs. McConveys life and were just fleeting circumstances that
resolved shortly after onset and therefore it is not surprising that she would
have no recollection of the events. Significantly, they do not amount to evidence
that establishes a pre-existing condition.
[30]
Prior to the accident, Mrs. McConvey used to sleep on her stomach and
had little difficulty with sleep apart from the odd bit of stress or tension
involved with raising two children and running a household when her husband was
out of town for work the majority of the time. Prior to the accident Mrs.
McConvey did not suffer from headaches more than the average person, describing
herself as not being a headachy person.
[31]
Mrs. McConvey admitted to experiencing bouts of depression or lowness
when her children were small. And, in 2004, when she tried to quit smoking she
was prescribed Wellbutrin, an antidepressant, to help with the cessation of
smoking. She was not successful in quitting smoking at that time. She was also
prescribed 60 tablets of Zyban in March 2008 to help with quitting smoking but
was unable to recall how long that prescription lasted.
[32]
Mrs. McConvey conceded in cross-examination that she has a history of
anxiety and has been prescribed medication for it from time but explained that
since the accident in May 2008 her anxiety and stress level has markedly increased
and has not been alleviated despite repeated prescriptions for medication to
control this condition. She also conceded that she may well have had IBS prior
to the accident in August 2007, as Dr. Garvins clinical notes appear to
support complaints of abdominal bloating and diarrhea at that time.
[33]
Mr. McConvey confirmed in his evidence that Mrs. McConvey was a
confident, friendly and outgoing woman until a family tragedy five days prior
to the accident. He explained that she experienced a significant setback when
her brother committed suicide five or six days before the accident. He
testified that this event had a drastic effect on her, that it just wiped [her]
right out, she was distraught and destroyed as her family was extremely
close and that she fell apart, became depressed and slept more. However,
according to Mr. McConvey, the accident, as I shall outline below, had an even more
significant impact.
2.
Pre-accident Activities
a)
Mrs. McConvey
[34]
Prior to the accident, Mrs. McConvey was physically active: walking,
biking hiking and playing golf and soccer from time to time, as well as engaging
in regular family camping trips, road trips and skating and skiing from time to
time in the winter. In terms of family activities, every other year her side of
the family would meet in Manning Park for a few days over New Years and ski
and skate and play hockey.
[35]
Gardening was Mrs. McConveys passion and as she explained, gardening
all day was my happy, happy chore. She also enjoyed doing all the yard work including
cutting the lawn and the attendant physical labour of such activities.
[36]
In addition to the above activities, Mrs. McConvey did all the grocery
shopping, she was fastidious about housecleaning and did it all with no
difficulty. She also did all the laundry and had no difficulty carrying heavy
loads of laundry between floors of the family home.
b)
Mr. McConvey
[37]
Mr. McConvey confirmed much of Mrs. McConveys evidence with respect to
her pre-accident recreational activities and domestic duties. Mrs. McConvey was
an avid gardener, she camped and engaged in the activities related to that
including chopping the firewood. The family went on summer vacation road trips
together and over the Christmas break would meet in Manning Park for a week
long extended family get together that included skiing, skating and tobogganing.
Mrs. McConvey readily participated in those activities. She also would take the
family dog on long (two hour) walks two to three times a week.
[38]
Prior to the accident, Mrs. McConvey did all the housework, cooking,
grocery shopping and laundry. She had no difficulty carrying items like full
loads of laundry or vacuum cleaners between the various levels of their home. And,
she did not require assistance from her husband or son to carry the bags of
groceries from the car into the house.
[39]
Mr. McConvey testified that prior to the accident he and his wife were
physically intimate on a regular (weekly) basis.
3.
Employment Prior to the Accident
a)
Mrs. McConvey
[40]
Before the accident, Mrs. McConvey had been employed for almost two
years and four months with the Automotive Training Centre (ATC), a private school
in Surrey, B.C. At the time of the accident she was the student co-ordinator at
ATC having moved up from the positions of receptionist and then career advisor.
At the time of the accident she was earning a gross salary of $3,000 a month. Mrs.
McConvey explained that she loved her employment with ATC and went over to ATC
because it represented an increase in pay from her previous employment in car
sales.
[41]
Before being hired by ATC, Mrs. McConvey was employed as a sales
consultant selling vehicles at the Barnes and Wheaton GMC dealership in Surrey
between 2004 and 2006.
[42]
Prior to working for Barnes and Wheaton, Mrs. McConvey worked in the
food and beverage industry as a waitress and bar tender for about 20 years at a
number of different pubs, restaurants and catering venues including GM Place. While
her education does not go beyond high school and she did not graduate from
grade 12, limiting her range of employment skills, Mrs. McConveys evidence and
her curriculum vitae conclusively establish that she has worked all of
her adult life and had no difficulty finding or keeping employment prior to
the accident.
b)
Dean Croft
[43]
Dean Croft owns and operates ATC, a private school with campuses in
Surrey and Richmond, B.C. The school offers career programs in auto mechanics,
auto body repair, auto sales, automotive services, parts and collision. Mr.
Croft testified that in January 2006, Mrs. McConvey was hired by ATC in an
administrative reception role doing call follow up with prospective students. About
6 months later she was promoted to one of the admissions advisor positions, an
advancement from her previous role. That position had a base salary plus about
5% commissions as it was a sales position. Later on, sometime in late 2007 or
early 2008, there was a vacancy in the student services department and Mrs.
McConvey was moved to the position of student services co-ordinator with a
gross salary of $3,000 a month.
B.
The accident May 20, 2008
[44]
As noted previously, on May 20, 2008, then 44 year old Pamela McConvey
was driving from her home to pick up her teenage daughter at her high school.
[45]
As Mrs. McConvey drove north on 144th St. into the area of
the intersection with 60th Ave., the defendant failed to stop at the
stop sign on 60th Ave. and simply drove through the intersection,
west bound, across 144th St. Mrs. McConvey had nowhere to go and
collided with Mr. Harts vehicle, hitting him at the drivers side door area. Mrs.
McConveys vehicle sustained about $15,000 worth of damage and Mr. Harts
vehicle was written off.
[46]
The force of the collision was significant enough to cause the drivers
side airbag to deploy in Mrs. McConveys vehicle, hitting her in the face and
forcing her backwards into her seat. The force of the collision was significant
enough to have the seat belt harness cause bruising to her left shoulder, left
breast and to leave an imprint of the shoulder strap on her chest area. Her
upper lip was cut and she also had a dry burn on her face from the air bag
exploding upon impact.
[47]
Once Mrs. Convey regained her bearings she called 911 from her cell
phone and fire and police personnel responded immediately.
[48]
Immediately after the accident Mrs. McConvey heard a loud ringing in her
ears and head. Her arms, which she had braced against the steering wheel at the
moment before impact when she realized there was going to be a collision, were
numb as if they had been jammed into the steering wheel.
[49]
Mrs. McConvey was in shock from the collision and was terrified that she
had killed the driver of the other vehicle given the location of the impact with
his vehicle. A few minutes later, however, she saw him standing by his vehicle.
[50]
Emergency personnel checked Mrs. McConveys vital signs and although she
had little clarity in her head and felt in shock, Mrs. McConvey felt she could
go home. Members of the fire department drove her home as her vehicle was towed
from the scene.
[51]
Once home, Mrs. McConvey sat down on her couch and felt a sudden heat
envelope her and her entire body seized into a tight ball. She explained that
from her rib cage and up her upper body felt like she had been hit by a car and
she described herself as one giant ball of bruise and pain and heat. Mrs.
McConvey testified she also had an insane ringing in my ear and a splitting
headache.
[52]
Her brother Bruce came to her home. As a result of his observations and
comments to her, Mrs. McConvey touched the left side of her neck and noticed
that there was an extreme immediate swelling in the area and that it felt like
gelatin when she touched it. She realized she needed immediate medical
assistance and called emergency services who returned to her home.
[53]
David McConvey, the plaintiffs husband, was at work when the accident
happened. He returned to the family home within an hour of learning of his
wifes injuries. He confirmed that Mrs. McConvey was in significant pain
stating that her muscles were frozen and that she was lying down stiff as a
board and could not move. After emergency services left, Mrs. McConvey spent
the rest of the day on her couch, unable to move without assistance from her
family.
[54]
Mrs. McConveys symptoms were more severe the next day (May 21) and she
had her husband take her to their family doctor, Dr. Robin Garvin. Mrs.
McConvey explained that her symptoms the next day included a splitting
headache, severe burning in her left shoulder blade, her arms were seized up,
she felt like she had been kicked in the ribs and that she had tension,
pressure and pain from her hip joints all the way to the top of her head.
[55]
Mrs. McConvey explained that after seeing Dr. Garvin and receiving a prescription
for medication to alleviate the pain and symptoms, she was referred to Helen
Wan at the Scott Centre Orthopaedic and Sports Physiotherapy Clinic where she
started intense physiotherapy that lasted for about 4 months.
[56]
Immediately after the accident, and for some weeks following, Mrs.
McConvey experienced continuous splitting migraine like headaches and chronic
insomnia. She explained that the migraine like headaches finally tapered off
to an excruciating headache after some months.
C.
After the accident
1.
Physical symptoms and status long term since the accident
a)
Mrs. McConvey
[57]
After the accident, Mrs. McConvey engaged in a course of intensive
physiotherapy for a period of about 4 months at the Scott Centre Orthopaedic
& Sports Physiotherapy Clinic in Delta, B.C. The therapy she received was
for her head, neck, shoulders, the upper left quadrant of her back under her
shoulder blade and down her ribs to the small of her back and hip region. She had
about 22 treatments in 2008 and a couple of treatments in 2009 on March 21 and 24
respectively. She received about 8 further physiotherapy treatments between
March 25, 2010 and July 11, 2011; this time at the Panorama Physiotherapy
Clinic in Surrey.
[58]
Once the initial intensive physiotherapy treatment was completed, Mrs.
McConvey testified she did daily physical exercise and strength training at
home to build up her strength. However, she did not elaborate on what that
regime consisted of nor was she cross-examined on this aspect of her recovery. She
would return to physiotherapy as she felt necessary from time to time to deal
with pain flare-ups.
[59]
Since the accident, Mrs. McConvey has had extreme difficulty with sleep —
she now has to sleep on her back to get comfortable — and requires medication
to help her sleep through the night. Many nights she finds herself on the sofa
in the middle of the night because she cannot sleep because of the pain. On her
account, it is only when she takes medication that she is able to get a solid
nights sleep. In the morning, however, she is groggy and her head is in a fog
and she says it takes her three times as long to wake up as compared to prior
to the accident. Although the medication contributes to her grogginess, it is
the lesser evil to ensure a good nights sleep. In 2012 she was still taking
either Amitriptyline (Elavil) or Clonazepam to help her sleep at night.
[60]
Mrs. McConvey switched doctors in October 2009, largely for convenience,
as she sought out shorter wait times for appointments. Although she continued
to see her former family physician, Dr. Garvin, from time to time until
September 2010, she started to see Dr. Meek and other physicians at the
Panorama Village Medical Clinic, located closer to her new home address. She
also attended the physiotherapy clinic attached to Dr. Meeks medical clinic
and, as mentioned, she received some physiotherapy and also some acupuncture
treatments there. She also receives trigger point injections in her shoulder from
Dr. Meek to try and alleviate the spasms and reduce the pain she continues to
experience.
[61]
In addition to physiotherapy and acupuncture, Mrs. McConvey was
prescribed a variety of medications following the accident including Naproxen
and Amitriptyline, to help reduce the pain and aid her sleep. As of July 22,
2010 she has been prescribed Cipralex for depression which she attributes in
part to the pain from the accident as well as finally coming to terms with the
death of her brother. She also described consuming a vast array of over the
counter medication including ibuprofen as well as back and muscle relaxants to
help with the pain from her injuries.
[62]
Mrs. McConvey testified that she suffered severe headaches for months
after the accident.
[63]
Insofar as the soft tissue injuries and pain are concerned, Mrs.
McConvey testified that her neck, shoulder girdle and upper back improved in
the first year after the accident but that she has never fully recovered from
these soft tissue injuries. She continues to experience symptoms of exhaustion,
heaviness and stiffness in her neck. This carries through to her shoulders
where there is a continuous burning sensation, tightness and strain as well as a
burning lump in her left shoulder blade area. Her lower back gets very tired.
[64]
Mrs. McConvey described the pain as a constant reminder of the accident
and says that it interferes with everything she does: work, housework,
gardening, sitting, and standing. Although ever-present, Mrs. McConvey
testified that the level of pain she experiences varies with what she tries to
do physically. The most prevalent pain she experiences is from her shoulder
blades to her ears. Mrs. McConvey testified she is aware of the pain at all
times and that it includes a heat and burning sensation in this area as well as
numbness in her arms depending on how she positions her arms. If she
overextends herself in physical activity she pays for it the next day and
winds up feeling exhausted and frustrated.
[65]
Mrs. McConvey testified that since the accident her injuries have
precluded her from continuing to be employed as she has difficulty holding her
arms up at shoulder height to do things like cosmetic makeovers or waitressing
duties.
[66]
In 2010, she developed severe diarrhea and IBS while employed at the
Hudsons Bay Company (HBC). This condition along with her continuing
difficulties with her neck and shoulders and other issues caused her to finally
resign from that position in November 2010.
[67]
In cross-examination, Mrs. McConvey agreed that Dr. Meeks clinical
notes for the period of October 5, 2009 through May 2, 2011 (20 visits),
contain no reference to complaints of neck, shoulder or back pain. She further
conceded that the first recorded complaint of neck, shoulder or back pain in
Dr. Meeks records is found on May 13, 2011, two days after she completed her
examination for discovery in this case. Mrs. McConvey maintained that simply
because there are no recorded complaints in the clinical records it did not
mean her concerns were not discussed. I am not convinced that that is
necessarily incorrect. What Dr. Meeks records reveal between October 5, 2009
and May 2, 2011, is a patient with a number of issues but the primary concern
presenting in a number of visits was charted as either:
i.
depression (July 8, 22, August 14, 27 and September 13, 2010 and
February 25, 2011),
ii.
IBS and diarrhea (September 27, October 2, November 9, 18 and December
18, 2010 and January 10, March 22 and May 2, 2011), or
iii.
anxiety (August 10 (that includes PTSD? notation), November 19, 2010
and April 21, 2011) and insomnia (February 1, 2010).
[68]
I note, however, that simply because there are no complaints of pain
with respect to her neck, back and shoulders in Dr. Meeks notes, it does not
mean that these issues had resolved. Mrs. McConvey was still receiving
medications from Dr. Garvin and Dr. Meek during this time; these included
sleeping aids and medication to alleviate pain. Moreover, there are complaints
with respect to soft tissue pain in Dr. Garvins clinical notes for March,
April and September 2010.
[69]
On the evidence, I find that the lack of complaints in Dr. Meeks
clinical records as to pain related to the injuries from the accident in the
time frame of October 2009 through May 2011 does not mean that Mrs. McConveys
soft tissue injuries had resolved. Indeed the physiotherapy treatments in 2010
and 2011 as well as Dr. Garvins notes on difficulties in March, April and
September 2010 serve to confirm complaints of ongoing difficulties related to
the accident. Mrs. McConvey struck me as a fairly stoic individual who
endeavoured to deal with the lesser issues on her own and only went to her
physicians when her symptoms were acute. Between October 2009 and May 2011 the
primary difficulties Mrs. McConvey was experiencing were depression and gastrointestinal
related. Notwithstanding this, I accept her evidence that she continued to
experience ongoing pain related to her injuries during this time as well.
[70]
In the fall of 2011 Mrs. McConvey became increasingly tired and weak and
was not feeling herself. By late September 2011 she had developed a rash and by
mid November 2011 the rash had escalated into hundreds of open lesions[1]
on her body. On December 22, 2010 she was taken to Peace Arch Memorial Hospital
by ambulance and hospitalized for 10 days from what turned out to be a severe,
indeed life threatening, streptococcal infection.
b)
Mr. McConvey
[71]
Mr. McConvey testified that his wife is a changed woman as a result of
the injuries she sustained in the accident. Prior to the accident she slept on her
stomach, now she sleeps on her back, her sleep is sporadic and she requires
medication to help her sleep.
[72]
Mr. McConvey explained that the worst affected area on his wifes body,
insofar as the injuries from the accident are concerned, are her upper back,
left shoulder blade and her neck. He understands that she receives injections
in her back to calm the muscles. He tries to comfort her by massaging the
affected areas almost every other day. When he does this he can feel how hard
and tense her back muscles are and he testified there has been no improvement
in the past two years.
[73]
In addition to the pain she experiences and complains of and the muscle
tension he sees in Mrs. McConveys back muscles, Mr. McConvey testified his
wife loses her temper more quickly when she becomes frustrated over her
condition and her confidence appears to have been undermined. Mr. McConvey also
explained he repeatedly has to warn his wife to not overexert herself and reminds
her that she will feel the effects the next day if she is not careful. When she
does overextend herself in gardening or household chores, Mr. McConvey can see
it and hears her complaints of pain the next day. Mr. McConvey explained that
his wife is a proud person who likes and wants to contribute to the household
activities but is unable to do so to the level she did pre-accident and this frustrates
her.
[74]
Mr. McConvey was not challenged on this aspect of his evidence. He was a
forthright witness and I accept his evidence on his observations and experiences
with his wife in the years since the accident.
2.
Post-accident Activities
a)
Mrs. McConvey
[75]
Mrs. McConveys evidence makes it clear that since the accident and the
attendant soft tissue injuries she sustained, she is limited in what she can do
physically. She no longer plays golf. She no longer goes camping as she cannot
get comfortable. Mrs. McConvey testified she no longer goes to Manning Park for
her family events as she cannot tolerate the cold on her neck and shoulders. She
no longer skis, skates or plays hockey as she is terrified of re-injuring
herself.
[76]
Insofar as gardening and yard work is concerned, Mrs. McConvey testified
she no longer lifts heavy objects and really only gardens for 10 to 15 minutes
at a time. She is able to cut the lawn but that chore only takes her 15 minutes.
[77]
Mrs. McConvey continues to walk her dog.
[78]
Mrs. McConvey testified that her housecleaning and domestic chores are
not performed to the level she did before the accident. While she was working
for HBC in 2009 and 2010 she was unable to do much in the way of gardening and
domestic activities as she was tired and frustrated at the end of a days work.
Since leaving that position and being out of work she has been able to do more
in the home but not to the levels she did prior to the accident.
[79]
Mrs. McConvey testified she still does the cooking, laundry and grocery
shopping but now requires assistance with these tasks. For example, she cannot
lift heavy items or carry the vacuum cleaner from floor to floor and she does
not wash the hardwood floors at the same frequency as she did prior to the
accident. From time to time she hires someone to come in and do the spring
cleaning of the house. She relies upon her husband and son to assist with all
the domestic duties of cleaning, cooking, laundry and yard work. Essentially,
her level of housework has had to be scaled back since the accident.
[80]
Mrs. McConvey explained that she is able to do the following yard work
related activities for an interval of approximately 10 to 15 minutes: rake gravel,
rake the front yard, mow the small lawn of the front yard and shovel light snow
in the winter time.
[81]
When challenged in cross-examination about her yard work abilities,
specifically moving gravel in a wheelbarrow and raking it out, Mrs. McConvey
denied moving a full wheelbarrow of gravel. She explained that when they put
gravel in their backyard around the deck area she may have moved an empty
wheelbarrow. She testified that she helped for a short period of time with
raking the gravel out and that she might even have helped loading in gravel
with a small hand shovel although she had no specific recollection of this last
act.
[82]
When asked about helping her husband unload his vehicle of materials he
has removed from various job sites, Mrs. McConvey said that she has, from time
to time, assisted in unloading smaller aluminum pieces and explained that she
does so because she does not like feeling like an invalid.
[83]
Mrs. McConvey testified that family road trips have discontinued and
that if she and Mr. McConvey travel anywhere it is usually within a two hour
driving radius. In cross-examination she confirmed she has taken short trips
with her husband to Whistler, Harrison Hot Springs, Snoqualmie in Washington
State and a two hour flight to Las Vegas as those destinations are close. When
challenged on how she was able to take a trip to Mexico in May 2010 she became
quite emotional in responding to the following question:
Q. And could you explain how it is that youre able to
go to Mexico then?
A. I have a family Mr. Darman, and I really wanted to
have a last family trip with my children getting older —
…
A. I wanted a family
vacation as that was my daughters grade 12 grad year and my children were
growing up. I had been through nothing but bad times and pain and irritability
and not being happy for quite a while. I took a Percocet and a bottle of
sleeping pills with me on vacation. I had told Dr. Garvin I was going. He
suggested I stay for three weeks, not for two, because the water, the lack of
stress and the heat would be wonderful for my pain threshold.
[84]
Mrs. McConvey explained that this trip had been planned for two years. Her
daughter graduated in May 2009 and the family went on the trip in May 2010. She
took Percocet for the flight and moved around on the airplane as much as she
could. I accept her evidence on this point and find there is nothing adverse to
be inferred from the fact that she went on this vacation. I find that it in no
way undermines her claim of continuing pain and symptoms.
[85]
Mrs. McConvey testified that since the accident her romantic relations
with her husband have declined, explaining that it is hard to feel loving when
in pain.
[86]
Mrs. McConvey concluded her evidence in direct examination by explaining
that since the accident she experiences pain all the time, her sleep is
uncomfortable, she is cranky, irritable and has a lower tolerance for stress. She
also explained that she experiences stress over the fact that she no longer
feels complete as either a wife or mother. The stress is compounded by the
familys financial situation as she no longer is able to earn what she did
prior to the accident.
b)
Mr. McConvey
[87]
Immediately after the accident and for about two months thereafter, Mrs.
McConvey was unable to do anything. Mr. McConvey and their son took on the
domestic duties including cooking, cleaning and laundry. According to Mr.
McConvey, the plaintiff started to do a little bit around the house after the
first two months of recovery had passed but he and his son continued to do most
of the domestic work. When Mrs. McConvey went back to work she was doing the
housework, laundry and cooking but still required assistance from her husband
and son.
[88]
Mr. McConvey explained that his wife does most of the housework now,
such as the vacuuming but that he has to carry the vacuum between the different
levels of their home. Mrs. McConvey is able to carry light loads of laundry
between the levels of the house but not heavy loads which are left for their
son or himself to carry. Similarly, Mrs. McConvey does the grocery shopping but
is not able to carry the heavier grocery bags in from the car. And, although
the plaintiff does the cooking and makes the meals for family gatherings, if
there is a heavy item to roast in the oven, she relies upon Mr. McConvey or
someone else to place it in and remove it.
[89]
Mr. McConvey testified that he and his son still help with the housework
and that the cleaning has deteriorated from what it was prior to the accident.
[90]
Mr. McConvey testified that since the accident, they do not do the long
road trips of previous times as Mrs. McConvey is unable to sit for long a
period of time. The farthest the driving road trips appear to be is up to
Whistler or down to Washington State. Mr. McConvey explained that they no longer
go on the family camping trips as sleeping in the beds in the camper would be
too uncomfortable for Mrs. McConvey. Although challenged in cross-examination
on his knowledge of this point as they have not been camping since the
accident, Mr. McConvey explained that Mrs. McConveys difficulty sleeping in a
regular bed since she sustained the injuries in the accident means that
sleeping in a camper bed would be impossible, intimating that the camper bed is
far less comfortable than a regular bed. I accept that as a fair inference in
the totality of the circumstances.
[91]
Mr. McConvey testified they no longer attend the Manning Park family
gathering anymore as Mrs. McConvey cannot participate in the various outdoor
activities. Their last attendance was over Christmas 2007. Mr. McConvey
explained that the rest of Mrs. McConveys extended family still attends this
event, notwithstanding the death of Mrs. McConveys brother in 2008. I accept
that the reason Mrs. McConvey no longer attends this family event is she is
unable to engage in the activities that she previously enjoyed and that her
non-attendance has nothing to do with the tragic death of her brother.
[92]
Mr. McConvey testified that Mrs. McConvey still walks the family dog for
about an hour to an hour an half at the same pace as before and that this is
therapeutic for her.
[93]
Insofar as gardening is concerned, Mr. McConvey testified that his wife
still does some weeding and arranging of the plants. She is able to cut the
small lawn at the front of their house using a gas powered mower and that it
takes about 15 minutes to do. Mrs. McConvey continues to do some edging and
weeding with a small hand shovel. However, until more recently, Mrs. McConvey
tends to overextend herself in her zeal to contribute and Mr. McConvey has to
remind her to slow down and not take on so much. When she does not heed that
advice she pays for it as her back will freeze up.
[94]
In anticipation of the evidence of a defence witness, a neighbour, Mrs.
Todd, Mr. McConvey testified about the building of a deck in their backyard and
the introduction of gravel for a rock garden. He explained the process took
about one day. Mr. McConvey loaded the gravel into the wheelbarrow at the front
area of the house and took it around to the back and dumped it. Mrs. McConvey
wanted to help and so he let her do so for about an hour and a half but when he
saw signs of her slowing he stopped her. Included in this assistance was Mrs.
McConvey raking the gravel in the backyard to level it out.
[95]
Mr. McConvey also gave evidence about Mrs. McConvey helping him unload
his cube van from time to time with materials he has removed from various job
sites. Mr. McConvey explained that a few times a year he will bring materials
to their home, such as aluminum railing and glass panels he has removed from
job sites. When this happens, Mrs. McConvey has helped him unload the vehicle
for about 45 minutes by carrying the smaller pieces that weigh about 10 to 15
pounds. Mr. McConvey lets her help but has to intervene when he sees her
starting to fail in her efforts.
[96]
Mr. McConvey explained that his wife often ends up overextending herself
when she assists in the unloading of materials, or in gardening or housework,
but appears to be gradually adjusting to the learning curve of her limitations.
He testified that he has had to remind her to be careful or stop overexerting
herself as she will pay for it with pain in her back and shoulder the next
day.
[97]
Mr. McConvey testified that since his wife was in the accident the
couples intimacy has diminished in part because he is afraid he will hurt her.
[98]
In late November 2011, Mrs. McConvey developed a streptococcal infection
and by Christmas time she was hospitalized. The infection was serious and she
stayed in hospital for about 10 days. By the time she had recovered from the
infection and had been released from hospital, she had lost some weight and was
a new person, according to Mr. McConvey.
[99]
Despite her recovery from the infection of late 2011, Mr. McConvey
explained that he has not seen his wife improve in the year before the trial in
terms of her physical limitations that she has had since injured in the
accident. He testified that he would not hire Mrs. McConvey for his work as she
is incapable of the physical work. He does have her assist administratively by
taking messages from potential customers, doing some advertising and doing the
bank deposits for his business.
[100] When asked
by plaintiffs counsel what has had a greater impact on his life, Mrs.
McConveys brothers suicide or the accident, Mr. McConvey testified that the
accident has had the bigger impact on him considering his wifes health, their
financial state, her inability to do the chores at the level she had done
before, their physical relationship and that their life has just completely
changed. Given the tenor of his evidence and the context in which this
question was asked I infer that the change has not been a positive one and that
the impact of the accident on the quality of the McConveys lives, Mrs.
McConveys in particular, has been completely negative and significantly so.
[101] Mr.
McConveys evidence of the changes he has observed in his wife since the
accident, as contrasted to her health, abilities and personality prior to the
accident, was largely unchallenged. It would be fair to say that his evidence
provides a portrait of a once proud, independent, confident and physically
robust woman who contributed to the family finances and did most things
herself, being largely shattered by her physical limitations caused by the continuing
pain from the injuries sustained in the accident as well as the depression following
the death of her brother.
c)
Mrs. Hendrickson-Todd
[102] Mrs.
Ingeborg Hendrickson-Todd (Mrs. Todd) and her husband are the McConveys
neighbours. In the summer of 2011 she observed the McConveys doing a renovation
to their back yard where a large deck was installed and then part of the ground
was covered with gravel. Mrs. Todd testified that she saw Mr. McConvey load the
wheelbarrow with gravel and that then he or Mrs. McConvey would move the
wheelbarrow of gravel to the backyard, empty it out and then both rake the yard.
Her evidence on this point was a bit inconsistent. At one point she said she
observed this occur over several hours for several days but then said it
occurred over two days. She conceded she was not able to see the McConveys
backyard from her backyard or her kitchen due to the fence and hedge between
the two properties. Mrs. Todd explained that she was able to make her
observations of Mrs. McConvey when she moved between the front and backyard of
her house along the shared passage between the properties. In cross-examination
she had to concede she was not watching the McConveys all the time and that she
did not know the number of trips Mrs. McConvey made with the wheelbarrow or how
heavy the loads were in the wheelbarrow. Moreover, she did not see the
after-effects on Mrs. McConvey insofar as her physical reaction to engaging in
any of this type of work.
[103] Mrs. Todd
also testified that she saw Mrs. McConvey gardening and cutting the front lawn
at least once a week in the summer. In cross-examination she conceded that the
gardening consisted of weeding and that the front lawn took about 15 minutes to
cut with a power lawn mower.
[104] Mrs. Todd
also testified she observed Mrs. McConvey help her husband unload fencing or
railing from the back of his truck and carry pieces to the backyard. Her
evidence on the number of times she observed this was equally confusing; saying
at one point she had observed it several times and then at another point
observing it one time for 45 minutes. Similarly, Mrs. Todd had no idea of the
weight of the pieces, at one point describing them as rusted metal and another
point as pieces of aluminum. She observed Mrs. McConvey carrying the pieces
with the weight bearing portion of the load in her right hand against her right
hip and using her left hand to steady the upper left corner of the piece.
[105] Mrs. Todd
thought this was unusual for Mrs. McConvey to do as she had been told by Mrs.
McConvey that she had injuries and health issues. However, she was unable to
remember the specifics of the issues.
[106] Mrs. Todd
also gave evidence about seeing Mrs. McConvey walk her dog on a regular basis,
describing it as occurring every other day in the summer time. Although she was
not following Mrs. McConvey, Mrs. Todd saw her throw a ball for her dog at
least once a week using a device described as a stick for throwing balls,
commonly referred to as a Chuckit!®. Mrs. Todd observed Mrs. McConvey throw the
ball in an overhand forward flinging motion using her right arm but holding her
left arm against her body. Mrs. McConvey is right handed and the claims of
continuing pain relate to the left side of her body, most particularly the left
shoulder girdle area.
[107] I conclude
from Mrs. Todds evidence that her observations are largely impressionistic and
vague and premised on a concern that Mrs. McConvey ought not to be engaging in
the activities. Given the lack of specificity as to the number of times or
length of time of the various activities or the weight of the load in the
wheelbarrow, I place little weight on her evidence.
[108] Mrs.
McConvey did not deny helping her husband move pieces of aluminum railing from
time to time nor did she deny gardening, cutting the lawn, or raking some of the
gravel in the back yard when the deck was added. Although Mrs. McConvey denied
moving the wheelbarrow with gravel, I am unable to accept her evidence on this
particular point. Moreover, her husband did not contradict Mrs. Todd in this
observation. However, the fact that Mrs. McConvey may have moved the
wheelbarrow with gravel is largely immaterial in the absence of more
specificity as to the number of trips she made, the condition of the
wheelbarrow or the weight of the load(s). The evidence of Dominic Shew confirms
the vagaries of Mrs. Todds evidence on this particular issue as the ability to
move the wheelbarrow depends on a variety of factors. Mrs. McConvey could well
be able to move one or two loads of gravel in a wheelbarrow.
[109] Furthermore,
what Mrs. Todd was unable to provide was any evidence on the after-effects of
engaging in such activities. Mr. and Mrs. McConvey were quite clear that Mrs.
McConvey often paid for it later when she over-extended herself on activities
as she would experience pain in her back, neck and shoulder. I accept Mrs. McConveys
evidence on this point. Moreover, it would be completely unrealistic to expect
a previously active and independent person, with a passion for gardening, to completely
abstain from trying to engage in such every day activities some three years
after the accident.
[110] The
evidence establishes that Mrs. McConvey is not completely incapacitated in all
her activities but is definitely limited in the duration and intensity of the
activities that she is still able to engage in. She tries to stay physically
active and mobile but her strength is reduced and she has physical limitations
in her capacity for work. She continues to rely upon medication on a weekly
basis to help deal with her pain symptoms. I accept that she is no longer able
to engage in some of her pre-accident activities such as hiking, camping, golfing,
skiing or skating and that she is restricted in the remaining activities that
she does continue to be involved in.
3.
Employment since the accident
a)
ATC
[111] Between
May and October 2008, Mrs. McConvey did not return to her employment at ATC. Dr.
Garvin provided her a note dated September 30, 2008 that cleared her to return
to work on October 6, 2008. When she attended at ATC on October 6, 2008, to
start work again she was advised by Dean Croft, the manager, that there was not
enough work and she was no longer needed as they had Heather assisting them. Mrs.
McConvey understood Heather was a reference to Heather Simpson, a former
employee of ATC who had left the school while on maternity leave and then
returned in a contract position on a particular project before Mrs. McConvey
was injured in the accident.
[112] Mrs.
McConvey had no recollection of actually working for the week of October 6,
2008 and being let go at the end of the week. She did recall that she was paid three
weeks severance for her three years of service when she was laid off. Mrs.
McConveys Record of Employment (ROE) with ATC [Ex. # 6] supports her
evidence that she was laid off on her first day back to work as there are no
insurable hours included in the last recorded pay period and the last sum paid
represents the equivalent of three weeks salary.
[113] Mrs.
McConvey conceded that without the injuries from the accident she expected she
would have remained on bereavement leave from ATC for a few weeks to deal with
her brothers suicide. I find that a fair allowance for any such bereavement
leave would be four weeks and, accordingly, I will deduct that from any
calculations for past loss of income later in these reasons.
[114] Mrs.
McConvey testified she had no idea what her physiotherapist Helen Wan meant in
her progress discharge note of September 8, 2008 that Mrs. McConvey advised she
was on holiday for the last three weeks, explaining she had never been on a
three week holiday and that she only had two weeks of vacation with ATC. Ms.
Wan was not called so no weight is attributed to this notation in her discharge
note.
[115] Mrs.
McConvey denied that she avoided returning to work at ATC because she found the
position too stressful. She acknowledged a notation in Dr. Garvins clinical
notes for September 11, 2008, that mentioned finding work stressful and that she
had anxiety. Mrs. McConvey explained, and I accept her evidence on this point,
that she loved her position at ATC, that she wanted to return but she was
worried and stressed over being able to do the job given some of the physical
limitations she had. Moreover, she explained that she sometimes had to do smaller
office supply deliveries or auto part deliveries that arrived at reception and
also, from time to time, had to deliver messages or to locate students and
instructors throughout the campus. Mrs. McConvey hoped to do a graduated return
to work but was not able to discuss this with Mr. Croft as she was laid off on
her return to work.
[116] Dean Croft
testified that in October 2007, there was a vacancy in the student services
department, when Heather Simpson elected not to return to her position
following a maternity leave. Mr. Croft offered Mrs. McConvey the position of Student
Services co-ordinator with a gross salary of $3,000 a month. The position was a
permanent position that Mrs. McConvey happily accepted.
[117] Mr. Croft
testified that he believed Mrs. McConvey returned to work for ATC for one week
and was then laid off. However, I find he is mistaken on that point. An
examination of the ROE prepared for Service Canada [Ex. #6] upon Mrs.
McConveys lay off from ATC, confirms she had no earnings for the pay period
prior to the lay off. Mr. Croft was clear that Mrs. McConvey was given three weeks
of severance pay for the pay period ending October 15, 2008. The ROE was issued
October 8, 2008. No insurable hours of work are included in that severance pay
amount or included in the ROE. Had Mrs McConvey worked at all for any time
during the week of October 6, 2008 on her return, the ROE would reflect the hours
worked and the related pay. It does not. Accordingly, I accept Mrs. McConveys
evidence that the day she returned to work at ATC she was laid off by Mr. Croft.
[118] Mrs.
McConveys lay off, however, had nothing to do directly with her accident. I
accept Mr. Crofts evidence that ATC simply did not have the work for her, as
Heather Simpson had returned to ATC in the interim and ATC was not in a
position to employ Mrs. McConvey either as the Student Services Co-ordinator or
in any other capacity. Thus, ATC simply no longer required her services and
indicated in the ROE that the reason for issuing it was due to insufficient
work. However, nothing in the evidence supports the notion that Mrs. McConvey
would have been laid off if she had not been injured in the accident and had to
take the period from May 21, 2008 through to October 5, 2008 to convalesce from
her injuries. So while it is correct to conclude that she was not laid off
because of her injuries from the accident, it is not incorrect to also find
that but for the accident Mrs. McConvey likely would have remained in the
employ of ATC.
b)
White Spot
[119] Once laid
off from ATC, Mrs. McConvey started to look for work and fell back on her
previous experience in the hospitality industry. On October 22, 2008 she
started to work for the White Spot restaurant located in the Semiahmoo Mall in
White Rock earning minimum wage (that averaged out to $8.75/hour) plus tips. Mrs.
McConvey worked at the White Spot until March 6, 2009 but eventually resigned as
she was physically unable to do the job. Mrs. McConvey testified that the
physicality of the job was too much and she was getting too many of the busy night
shifts on Friday and Saturday nights, something she had understood would not be
frequently required of her, according to her conversations with Bruce Carle when
he hired her for the position.
[120] In
cross-examination, her shift schedule with White Spot was put to her. Of the 19
½ weeks she worked at White Spot, she worked nine Friday and Saturday shifts;
seven Friday, Saturday and Sunday shifts and six Saturday and Sunday shifts. However,
the schedule did not indicate whether Mrs. McConvey was working the busier
night shifts on the weekends or the slower day time shifts. Mrs. McConvey
acknowledged that she did some night shifts during that time but not all of the
above shifts were for the busy evening dinner service.
[121] Mrs.
McConvey was consistent in her evidence that the reason she left White Spot was
that she found the style of waitressing difficult and that it aggravated her
neck and shoulder as she had to carry large trays with meals on her left
shoulder instead of being permitted to carry the plates of food stacked on her
arm as she had done previously. I accept her evidence on this point. Dr.
Garvins clinical records for March 19, 2009 substantiate her complaints of
pain in her shoulder and neck and on examination in April 30, 2009 she continued
to produce a pain response on palpation of the affected areas.
[122] I also
accept Mrs. McConveys evidence that she resigned from White Spot due to the
fact that she could not work under the conditions of the changing schedule she
was being given and that her resignation was not based on a desire simply not
to work on Friday or Saturday nights.
[123] Mr.
McConvey testified that after his wife was laid off at ATC she wanted to find
work so she could contribute to the familys finances. She found employment at
the White Spot waitressing, a position she was well familiar with and good at
prior to her employment in the auto sales and auto school industry. Mr.
McConvey was concerned that the work would not be good for her physically given
her injuries but saw that she wanted to contribute to the family finances. He
reluctantly supported her in her decision to return to waitressing and saw that
it had a negative effect on her physically. She was being given busy shifts on
nights and weekends and it was physically overwhelming for her. Mr. McConvey
testified that his wife would come home tired, cranky and complaining about her
neck and shoulder from carrying the trays. Sometimes she would return home in
tears from the pain. Mr. McConvey told her she did not have to do this work and
encouraged her to find another job.
[124] Vicki
McNulty was the Service Manager of the White Spot when Mrs. McConvey was
employed there as a server/waitress. She could not recall specifically when Mrs.
McConvey was employed there but thought it was about three or four years before
she testified.
[125] Ms.
McNulty had an opportunity to observe Mrs. McConveys performance when she
worked at the White Spot and could only recall that she worked like everyone
else. When asked if she knew why Mrs. McConvey left White Spot, Ms. McNulty
initially indicated she did not remember and then said she recalled vaguely an
issue about Mrs. McConvey wanting weekends off, something that could not be
offered to newer employees. Ms. McNulty was not certain but thought she may
have heard something about Mrs. McConvey wanting to be able to help her husband.
[126] Ms.
McNulty agreed that weekends, particularly the evening dinner service on
Fridays and Saturdays, were the busiest shifts where the most tips could be
made; she further agreed that some employees want to work weekends whereas
others do not.
[127] Given the
vague nature of Ms. McNultys evidence and her limited recollection, and indeed
unreliable nature as to the source of some of her information, Ms. McNultys
evidence is of no assistance in my assessment as to why Mrs. McConvey left her position
at the White Spot restaurant after slightly more than five months of working
there.
[128] I accept
Mrs. McConveys evidence that she was not able to continue working at the White
Spot because having to carry the large trays of meal orders on her left shoulder
aggravated the injuries to her neck and shoulder and increased the pain symptoms
in those areas. Moreover, she was not getting the shifts she had hoped to
receive in light of her limitations which she candidly explained to Mr. Carle
when hired.
c)
HBC
[129] After leaving
the White Spot, Mrs. McConvey looked for another position and eventually found employment
with HBC as a beauty advisor in the cosmetic department working at the Estée
Lauder counter of the HBC in Willowbrook Mall in Langley, B.C. Mrs. McConvey
was hired by HBC and started work on April 24, 2009. Mrs. McConvey worked there
until August 2010 but had to take two sick leaves due to health related issues
in March and April 2010 and then again in August 2010. Mrs. McConvey did not
return to work after her second leave and eventually resigned in November 2010.
[130] Mrs.
McConvey testified that in addition to doing makeovers and sales in the
cosmetics department she was also required to assist in other areas of the
store, folding and re-hanging clothing and engaging in other tasks that
required bending, squatting and lifting items. In the cosmetics department she
had to carry large boxes of product from the storage area to her counter. Mrs.
McConvey explained that during gift with purchase promotions this caused an
increase in the volume of boxes of products moved about from storage areas to
the customer counter areas. She found standing on a concrete floor all day to
be physically demanding and holding her arms up to do makeovers on clients to
also be physically difficult – her arms would become numb and her shoulders
would burn and become tired.
[131] In March
2010 she tripped over a storage bin at her counter and re-irritated her back
and neck injuries. She saw Dr. Garvin on March 25, 2010 about the pain she was
experiencing in her neck and shoulders. On March 30, 2010 she saw him again and
received a note excusing her from work until April 11, 2010 for medical reasons.
She saw Dr. Garvin again on April 8, 2010 and received a second note excusing
her from work until April 22, 2010 for medical reasons. On April 20, 2010 she
attended at Dr. Garvins office and was deemed fit to return to work although
on examination she still presented with pain to palpation of the affected areas.
[132] In
cross-examination, Mrs. McConvey could not recall if she had advised HBC that
the reason for her absence was because she had tripped over a bin. Moreover,
she was uncertain as to whether Dr. Garvins medical note excusing her from
work specified the reason. An examination of the notes for March and April 2010
does not indicate any specific reason. However, the clinical records for that
time period support Mrs. McConveys claim of re-irritated soft tissue injuries
in that there were complaints of pain in the affected areas and on examination
there was a pain response to palpation and a notation of limitation of movement.
Simply because Dr. Garvins medical notes and clinical records do not contain
any reference to tripping over a bin at work does not mean this did not happen.
Moreover, the failure to advise HBC of the cause of the difficulty does not
detract from the fact that it likely occurred. In the circumstances, I accept
Mrs. McConveys evidence on this point.
[133] On August
14, 2010, Mrs. McConvey had to take a second leave of absence from work at HBC.
She explained that she was dealing with many things at this time including: her
aging parents, the death of her brother, her family, her unhappiness in her
position with HBC, the continuing pain from her injuries from the accident, the
fact that she was not sleeping, she had developed severe diarrhea and IBS, her
hair was falling out, and she was exhausted and cranky. As she testified, her
world came crashing in on her and she was maxed out.
[134] In
cross-examination, Mrs. McConvey testified she had asked Kim Andrews, her
manager, for an accommodation to sit during her shift and it was intimated to
her that that could not be done. In light of Ms. Andrews evidence on this
point (outlined below) I cannot accept this recollection of Mrs. McConvey. On
this point, I suspect Mrs. McConvey is engaging in a revisionist view of her
circumstances. On this point I prefer the evidence of Ms. Andrews and conclude
that no request for an accommodation was made, no doubt in part because Mrs.
McConvey did not want to present herself as anything other than ready, willing
and able to do the job.
[135] Between
August 14, 2010 and October 2, 2010, Mrs. McConvey obtained doctors notes from
Dr. Meek and other physicians at the Panorama Village Medical Clinic,
certifying that she was unable to attend work due to illness/injury. No
specifics as to why the leave was necessary are contained in the medical notes.
[136] Mrs.
McConvey had no recollection of being provided with the HBC standardized form
for an Attending Physician Statement as contained in Ex. #6. Nor did she recall
completing it. It should be noted that the only part of this form that is
completed was done by an HR Representative named Laura Sampson who was not
called to outline what she did with the form. It appears Ms. Sampson completed
the form on September 18, 2010. However, there is an evidentiary lacuna as to
whether Mrs. McConvey received the form. She did provide doctors notes during
the period of August through October 2010 and accordingly, I am not prepared to
infer that she purposely did not complete the standardized form. Indeed, it is
not clear that she even received the form.
[137] Mrs.
McConvey formally resigned from HBC in November 2010. She recalled meeting with
Kim Andrews and Connie Sevicovic, advising them that she would not be returning
to work. Mrs. McConvey admitted in cross-examination that part of the reason
she gave for leaving HBC was that she did not need to work and that money was
not an issue. She explained however, that that was not an entirely truthful explanation.
Money was an issue, but she was endeavouring to save face in a time of
adversity when she was stressed, tired, defeated and sore. As Mrs. McConvey
explained in her evidence:
Q. And
so was it the case you were not telling the truth to your employers about the
real reasons you were quitting?
A. Not
that I was not telling the truth. I was sugar coating for my own self esteem,
which was very down, that I was more competent and felt better than I did, and
I did not wish to show them that this was not the case.
[138] Mrs.
McConveys evidence on this point was utterly unvarnished and I accept her
explanation that telling her employers she did not need to work at HBC was a
way to preserve her own self-esteem at a point in time where she was feeling
very low.
[139] Mrs.
McConvey explained that she resigned from HBC for a variety of reasons
including: the chronic pain from her injuries and the related fatigue that was
wearing her down, her IBS, her post traumatic stress, the fact that she was not
sleeping, was stressed and felt the stress compiling and that her coping skills
were weakened. She also told Ms. Andrews and Ms. Sevicovic that these were also
factors that played in her decision to resign.
[140] Mrs.
McConvey turned down HBCs offer of representing another product line,
Biotherm, which she felt was beneath her. However, she maintained that in the
end the difficulty for her was having to stand on a concrete floor, lift boxes
of product, and other physical limitations for herself and the building (e.g.
bathrooms on another floor from the cosmetic counters).
[141] Although
Mrs. McConvey disliked aspects of her position at HBC, in part because she was exhausted,
frustrated and did not fully understand this line of retail work, she testified
that she did not hate the job per se. She strongly disagreed with the
suggestion that the reason she left HBC was that she did not like the job and
that her injuries from the accident had nothing to do with it.
[142] Mrs.
McConvey was cross-examined about her entry as to employer on her Facebook page
as Financially sound, no work for me! LOL. Although the defendant endeavoured
to suggest Mrs. McConvey was being disingenuous in her explanation that the
phrase was a joke, I completely accept Mrs. McConveys evidence on this point. To
suggest that a one line comment on a social media site — where most
individuals endeavour to portray themselves as something other than what they
are — is indicative that Mrs. McConvey has simply elected not to work and that
she has fully recovered from her injuries is a proposition unsupported by the
evidence in this case. I place absolutely no weight on such an offhand remark,
no doubt made in jest.
[143] Mrs.
McConvey obtained one further doctors note on January 10, 2011 confirming her
inability to work for medical reasons since August 2010.
[144] On April
21, 2011, Mrs. McConvey saw Dr. Meek and obtained a doctors note certifying
she was able to work again as of that date. However, Mrs. McConvey has not
worked since resigning from HBC except for assisting her husband with paper
work related to his business. She did attend a career counselling course called
Sources through Service Canada in the spring of 2011 and sent out some resumes
but did not elaborate on any further efforts to find employment.
[145] Mrs.
McConveys employment search was derailed in the fall of 2011 when she became
very ill with what turned out to be a streptococcal infection that eventually
resulted in her hospitalization on December 22, 2011 for 10 days.
[146] Mrs. McConvey
testified that she still intends to find work but needs an understanding and
empathetic employer.
[147] Nikki Vaux
worked with Mrs. McConvey at HBC in the cosmetic department from sometime in
2009 until Ms. Vaux left HBC in April 2010. Ms. Vaux worked at the Lancôme
cosmetics counter about 20 feet away from Mrs. McConvey who worked at the Estée
Lauder counter. Ms. Vaux recalled the floor in the cosmetics area to be
linoleum over cement.
[148] Ms. Vaux
testified that she knew Mrs. McConvey suffered from back pain but could not
recall the specifics. Ms. Vaux testified that standing bothered Mrs. McConvey and
that she had to sit down frequently through her shifts. The employees were
required to stand, particularly for makeup applications, and standing seemed to
bother Mrs. McConvey especially towards the end of a seven hour shift.
[149] Ms. Vaux
also testified that Mrs. McConvey was unable to carry boxes of cosmetic products
from the back (storage) area to the cosmetic counter. The boxes varied in size,
depending on the product, but were generally two feet by two feet in size.
[150] Ms. Vaux
worked similar shifts to Mrs. McConvey and understood both from Mrs. McConvey
telling her, and from management advising her on occasion, that Mrs. McConvey had
to take time off work because she was experiencing back pain. Ms. Vaux said she
learned of Mrs. McConveys absenteeism through management who advised on
occasion why someone had called in sick or if the person was hurt.
[151] Ms. Vaux
was challenged on cross-examination as to management providing information
about an employees illness and it was suggested she simply assumed Mrs.
McConvey was off due to back problems. Although she could not provide specific
details as to the dates of Mrs. McConvey absenteeism she knew, from Mrs.
McConvey telling her, that she was off because of her back, adding that
everyone in the department knew she had a bad back. When it was suggested to
her that she was not being candid with the Court about management advising of
the reason for an employees absence, Ms. Vaux did not appear to understand
what defence counsel meant. Her response was utterly ingenuous and she insisted
that, on occasion, management did tell her that Mrs. McConvey was absent
because of a back problem. I accept her evidence on this point.
[152] Mr.
McConvey outlined his observations of his wifes condition when she worked for
HBC. He felt his wifes condition deteriorated because she was standing all day.
She would come home fatigued and not wanting to do much at home. She would be
in tears on the way out the door the next morning from the pain she was
experiencing. He found this frustrating and by July or August 2010 he told her
she had to stop as her health was deteriorating. He was unable to recall what
had happened to her in March and April 2010.
[153] Since she resigned
from HBC, Mrs. McConvey has done some limited administrative work for her
husbands business, answering the telephone and taking messages, as well as
doing deposits at the bank for him. Mr. McConvey explained that after leaving
HBC, Mrs. McConvey went through the Career Services course but since that time
has done little as her depression has slowed her down.
[154] Kimberly
Andrews is the sales manager at HBC Langley and hired Mrs. McConvey as an Estée
Lauder Beauty Consultant. Mrs. McConvey started work with HBC on April 24, 2009,
resigned on November 6, 2010 and was officially terminated on December 10,
2010.
[155] Ms.
Andrews hired Mrs. McConvey on the strength of her references and for her
bubbly and friendly personality in the interview.
[156] Two of the
difficulties associated with Mrs. McConveys time with HBC were her absenteeism
and her inability to achieve her productivity / sales targets.
[157] Ms.
Andrews testified that most of Mrs. McConveys absences coincided with sales
events known as gift with purchase where associates were expected to contact
clients and pre-sell cosmetic products. Clients and customers would receive a
gift with purchase for sales over a certain amount. Estée Lauder gifts usually
weighed about eight to ten pounds and were contained in a one foot by two foot
box. Sales associates were required to lift and move the boxes but if they were
unable to do so, accommodations would be made.
[158] Ms.
Andrews testified that when an HBC employee is off work with an illness they
are provided a standardized form to have their doctor complete and substantiate
any injuries. Mrs. McConvey would have been given this form for her doctor to
complete. However, a review of her employment file indicated no such completed
forms in the file. Ms. Andrews also testified that they did not disclose the
reasons for an employees absence from work unless the employee themselves
advised of the reason for their absence.
[159] Ms.
Andrews recalled that most of Mrs. McConveys absences were supported by a
doctors note indicating flu, bronchitis or sometimes no specification. The
majority of the doctors notes, like the ones from March 30, 2010 and April 8,
2010 (which had Mrs. McConvey absent from work between March 25 and April 22,
2010) simply indicated that Mrs. McConvey was unable to work for medical
reasons. An employee, if asked why they were absent, did not have to provide the
reason. Ms. Andrews could not recall why Mrs. McConvey was off work in April
2010.
[160] Ms.
Andrews testified she could not recall telling Mrs. McConvey she could not sit
during her shifts, nor could she recall Mrs. McConvey ever saying she could not
stand during her shift or mentioning any issues when hired that she needed some
accommodations. Had there been a request for an accommodation, HBC would have
done so.
[161] Mrs.
McConveys employment file contained no documentation reporting an injury to
her back and neck while working in March 2010. According to Ms. Andrews she was
not advised that the reason for Mrs. McConveys absence from work at that time
related to a reactivation of pain in her neck as a result of tripping over a
bin at work.
[162] Mrs.
McConvey did not return to work for HBC after her August 2010 absence. On
November 6, 2010, Ms. Andrews and Connie Sevicovic met with Mrs. McConvey to
offer her a position with another product line. However, when offered a
position with another line, she was visibly upset, assertive and rejected the
proposal indicating she felt the offer was not within the elite status of Estée
Lauder.
[163] Mrs.
McConvey resigned from HBC at this meeting, advising that she was not returning
to work due to her IBS and PTSD as well as her need to take care of herself and
her family. She also told Ms. Andrews that she did not really need the money as
her husband had a business. Ms. Andrews was surprised that Mrs. McConvey quit
her position with HBC.
[164] Although
Mrs. McConvey may have told Ms. Andrews that she did not need the money and her
husband had a business, I accept Mrs. McConveys explanation as to why she made
this comment. I further accept that the real reason Mrs. McConvey left was due
to her inability to do the job in part due to the continuing pain and
difficulties from her injuries sustained in the accident as well as her other
assessed health issues of IBS and depression.
D.
At Trial
[165] By the
time of the trial, Mrs. McConvey was still unemployed and was still
experiencing headaches, albeit of less frequency and intensity. She also
testified to experiencing difficulty with sleeping, relying on medication to
ensure she slept through the night and fatigue, as well as continuing pain in
her neck, shoulder and lower back. She still is unable to do many of the
activities she used to engage in because of her physical limitations and has had
to curtail the extent of her exertion in those activities and domestic chores
she continues to try and participate in.
[166] The only
sort of work that Mrs. McConvey might be doing, albeit there is no evidence of
any sort of compensation, is providing minor administrative assistance for her
husbands aluminum railing business.
V.
Medical and Expert evidence
[167] Mrs.
McConvey called two experts to provide expert evidence as to her condition and
her employment prospects. The defendant called Mrs. McConveys two treating
physicians, Dr. Garvin and Dr. Meek, to outline their observations and
interactions with Mrs. McConvey over the years. The defendant also called an
orthopaedic surgeon who conducted an independent medical examination of Mrs.
McConvey.
A.
Dr. Rhonda Shuckett
[168] The
plaintiff called Dr. Rhonda Shuckett, a rheumatologist who examined Mrs.
McConvey on June 17, 2011 and prepared a 17 page written expert report dated
August 11, 2011 [Ex. #3].
[169] Dr.
Shucketts opinion is based on her review of the clinical records she received,
her interview of Mrs. McConvey and her physical examination of Mrs. McConvey. The
latter involved a full examination of the musculoskeletal system including: (i)
watching gait and body language, (ii) assessing range of motion of the spine,
shoulders and other joints by having the patient move the various areas, as
well as applying pressure to them to see if a greater range is available, (iii)
palpation of the muscles to feel for muscle spasm and observe tenderness, and (iv)
checking reflexes and hand strength. In addition, Mrs. McConvey was tested and scored
negative on all eight Waddell non-organic pain tests.
[170] On
examination, Dr. Shuckett noted Mrs. McConvey was tender over the left anterior
cervical point, the left trapezius and the left upper medial scapula which was
very tender over the upper and mid aspects. Mrs. McConvey was significantly
tender over the paraspinal muscles of the low back and over the right upper
sacroiliac iliolumbar region. Mrs. McConvey displayed decreased mobility of her
left shoulder. She exhibited a less than normal degree of rotation of the neck
with rotation to the right feeling very tight and rotation to the left causing
a crunching feeling in the left neck and shoulder.
[171] Dr.
Shucketts diagnosis and opinion was divided into four components each of which
she commented upon in her evidence.
[172] The first
diagnosis Dr. Shuckett offered is stated as neck injury with suspected
musculoligamentous and zygapophyseal joint capsular injury. Dr. Shuckett
explained this means Mrs. McConvey has an injury to the muscles of her neck,
mainly on the left side. Dr. Shuckett explained that the Z joint diagnosis
pertained to the facet joints in the neck and acknowledged that this aspect of
the diagnosis was simply suspected based on theoretical studies and research in
the literature. The symptoms of the soft tissue neck injury were ongoing at the
time of the examination. While I accept Dr. Shcuketts opinion with respect to
the neck injury, the nature and quality of her evidence on the Z joint aspect
was largely theoretical and amounted to nothing more than suspicion.
[173] The second
diagnosis provided by Dr. Shuckett is stated as cervicogenic headaches with
some migraine features. Dr. Shuckett testified that the headaches, as
described to her by Mrs. McConvey, were more severe in the initial months after
the accident but had abated in intensity since that time. She conceded in
cross-examination that headaches were very much a clinical diagnosis best left
to a neurologist. While Dr. Shuckett purports to make a diagnosis of cervicogenic
headaches with migraine features, she clearly is not in a position to make such
a diagnosis. What I take from her evidence, coupled with Mrs. McConveys
evidence and the notes about headaches in the clinical records, is that Mrs.
McConvey suffered severe headaches for a number of months after the accident
but the severity has since abated. Although Mrs. McConvey continued to
experience headaches in 2011, Dr. Shuckett was in no position to stratify the
nature of them.
[174] Dr.
Shucketts third diagnosis is presented as myofascial pain syndrome of the
left neck and shoulder girdle region with painful trigger points and palpable
muscle spasm. Dr. Shuckett explained that myofascial pain is a form of soft
tissue pain with muscular tenderness. Such a diagnosis is determined upon
physical examination of the area in issue. The muscle feels quite hard, nodular
and as though it is in spasm; by spasm she meant that the muscle felt quite
taut, hard and was very tender to palpation. Specifically, Dr. Shuckett
observed that the areas of tenderness that were firm, taut and tender to
trigger point pressure were the anterior region of the trapezius and medial
scapula which were very tender, and were eliciting pain responses on the left
side of Mrs. McConveys neck and shoulder girdle region. This was contrasted
with her examination of the control side, the right side of Mrs. McConveys
neck and shoulder girdle, which was not tender on examination.
[175] Dr.
Shucketts fourth diagnosis is stated as mid back pain and upper low back
pain, as well as low back pain. This area of Mrs. McConveys body was not
included in the diagnosis of myofascial pain syndrome as there was not much in
the way of trigger point pain response. Instead, Dr. Shuckett described it as
an injury of the ligaments and muscles.
[176] Under this
fourth prong of her diagnosis, Dr. Shuckett suspected sacroiliac strain as a
result of the accident and suspected chronic pain syndrome as well. Insofar
as the sacroiliac strain was concerned, Dr. Shuckett conceded she was equivocal
as to this diagnosis as it was not a striking feature. Given the nature of her
evidence on this point, the plaintiff has failed to establish that any
sacroiliac strain is an injury she sustained as a result of the accident.
[177] Insofar as
chronic pain syndrome is concerned, Dr. Shuckett conceded she could not make a
diagnosis of depression or adjustment disorder, something best left to a
psychiatrist. Although she believed that chronic pain syndrome might be an issue
for Mrs. McConvey, there were too many variables and nebulous criteria from the
American Medical Association to permit her to make a concrete diagnosis on this
point. Given the nature of Dr. Shucketts evidence on this point, the plaintiff
has failed to establish that she suffers from chronic pain syndrome as a result
of the injuries sustained in the accident.
[178] Insofar as
causation is concerned, Dr. Shuckett is of the opinion that the accident was
the main catalyst and inciting event for Mrs. McConveys neck pain, myofascial
pain syndrome and muscle spasm in the left side of her neck as well as her left
shoulder symptoms. Similarly, although pre-disposed to lower back pain
difficulties due to the prior back surgery, the fact that Mrs. McConvey had
recovered from that and had no issues for a few years before the accident suggested
that the accident impacted her lower back differently than what her previous
back injury had done.
[179] I place no
weight on Dr. Shucketts references in her written opinion to PTSD, adjustment
disorder and depression for Mrs. McConvey, Dr. Shuckett having conceded that
they are matters more properly in the domain of a psychiatrist.
[180] Dr.
Shuckett outlines in her written report that she reviewed an MRI scan done on
June 17, 2011. The MRI shows considerable degenerative disease at multiple
levels of Mrs. McConveys neck but this condition, something that can take
years to develop, was asymptomatic prior the accident. She acknowledged that
the pre-existing condition rendered Mrs. McConveys neck more susceptible to
injury but could not say with any degree of assurance that Mrs. McConveys neck
pain would have developed in the absence of the accident.
[181] In
cross-examination, Dr. Shuckett said she did not think Mrs. McConvey would be
able to move a wheelbarrow full of gravel but qualified this comment by noting
she had not measured Mrs. McConveys lifting capacity. In light of the
ambiguous nature as to the size of the wheelbarrow, the size of the load of
gravel, the number of times Mrs. McConvey may have moved it, coupled with the
fact that Mrs. McConvey from time to time has done more than she is actually
capable of managing, I am not prepared to draw any adverse inference from this
evidence or the wheelbarrow observations of Mrs. Todd.
[182] Finally,
it is important to note that Dr. Shuckett is of the opinion that Mrs. McConvey
is capable of returning to the workforce, at least in some regular part-time
capacity. Her opinion is based, at least in part, on the fact that Mrs.
McConvey did return to work some months after the accident and continued to
work until the onset of her stress in 2010.
[183] Insofar as
prognosis is concerned, Dr. Shuckett is of the opinion that Mrs. McConveys
pain in her neck, shoulders and lower back is now chronic. She further opines
there is a chance that the pain will continue to some degree in the future. However,
the fact that the litigation is also contributing to Mrs. McConveys stress
means that the pain symptoms may continue in the future but not to the degree
manifested at the time she conducted her assessment in June 2011.
B.
Dominic Shew
[184] The
plaintiff called Dominic Shew, an occupational therapist and a work functional
capacity evaluator, to outline his opinion and recommendations as to Mrs.
McConveys functional limitations and capacity in the realm of future employability
and avocational activities.
[185] Mr. Shew
assessed Mrs. McConvey on January 23, 2012 over a 7 ¼ hour period. In this
assessment, Mrs. McConvey participated in a clinical interview, completed a
series of questionnaires, and was subject to a musculoskeletal assessment and a
variety of physical tests. Mr. Shew prepared a comprehensive written 50 page
report dated January 24, 2012 that not only summarizes his findings but also
outlines the various tests administered and the results of that testing. The
report is contained in Ex. #5 at Tab 4.
[186] Mr. Shew
was originally scheduled to assess Mrs. McConvey on December 12, 2011. However,
when Mrs. McConvey attended at his office for the appointment she was anxious,
disheveled, covered in a rash and in a lot of distress. He deemed it would be
inappropriate to proceed with the assessment on that date as it was unclear
what medical difficulty she was suffering from at that time. Given her state,
Mr. Shew did not want to conduct an assessment that might not provide an
accurate opinion as to the plaintiffs physical capabilities. He later learned
she had been hospitalized with an infection and as the evidence has established
Mrs. McConvey had to deal with a serious streptococcal infection.
[187] On January
20, 2012, Mr. Shew received a medical clearance from Mrs. McConveys doctor
that she was medically fit to perform the assessment and he conducted his
assessment on January 23, 2012. At that assessment Mrs. McConvey appeared to be
recovered and presented with a great deal more energy than when she presented
herself on December 12, 2011.
[188] Mrs.
McConvey testified that she did not think her performance in her assessment by
Mr. Shew was affected by her illness from December as she had a medical
clearance from her doctor to do the assessment. She recalled telling Mr. Shew
she was hospitalized in December for sepsis in her left arm and right thigh.
[189] In
cross-examination, Mr. Shew indicated that he could not say for a fact that the
hospitalization and infection did not impact on the assessment. However, if it
did, he would have expected evidence of overall fatigue which he did not
observe. Instead, the fatigue he observed appeared to be isolated to specific
areas. Moreover, Mr. Shew was aware that Mrs. McConvey had completed her
antibiotics before the assessment and that she had been medically cleared to
participate in the assessment. When asked about Mrs. McConveys left elbow and
the impact of the infection on that area, he noted that the testing conducted
showed no limitations on the range or flexibility. In contrast, inflexibility
was apparent in her left shoulder.
[190] Mr. Shew
explained that his findings as outlined in his report were obtained through his
physical testing and monitoring of Mrs. McConvey over the 7 ¼ hour assessment
period which included a total time sitting in a work-intensive position of one
hour and 58 minutes and a total time weight bearing (standing and walking) of
one hour and 21 minutes.
[191] Mr. Shews
findings included an assessment and opinion that, although she provided a high
level of effort during the testing and tried very hard in the assessment, Mrs.
McConveys test scores demonstrate that she falls below the competitive
standard due to limitations in her neck, left shoulder and lower back. He
concluded that she would not be competitive for employment requiring a lot of
reaching, especially if it involved her left upper extremity. His conclusion,
based on his testing and monitoring, is that Mrs. McConvey could be gainfully
but not competitively employed (meaning she is limited in terms of the full
scope of occupations that might be available to her) and that she is best
suited for part-time work in the sedentary to light level work capacity. Moreover,
accommodations and modifications would be required if she is to return to
gainful employment.
[192]
Mr. Shew noted that Mrs. McConvey
…consistently demonstrated
restrictions in her capacity for activity requiring vertical reaching and
horizontal reaching as well as below waist work requiring bending, stooping,
squatting and crouching. There were measured restrictions in left one handed
carrying, two handed carrying, left one handed lifting and two handed lifting. There
were also restrictions in her tolerance for sitting. Overall there were
restrictions in her mobility (cervical and left shoulder) and endurance. [Ex.
#5, Tab 4, p. 5]
[193] So long as
Mrs. McConvey paces herself throughout the week, Mr. Shew concluded she is
capable of performing light and some moderate homemaking chores. Insofar as
heavier household chores (e.g. moving furniture, cleaning bathrooms, seasonal
cleaning) as well as yard work are concerned, Mr. Shew concluded, based on the
test results and his clinical observations, that she is capable of performing
some of these tasks in a safe manner. He cautioned, however, that Mrs. McConvey
is likely to experience more difficulty with tasks requiring heavier demands
and those that require forward and overhead reaching, bending/stooping and
squatting/crouching for prolonged repetitive periods. In that respect, Mrs.
McConvey would require assistance.
[194] Part of
the assessment included a Reliability of Pain and Disability Reports. Mr.
Shew found that Mrs. McConveys capacity and limitations indicate that her
subjective reports of her abilities and limitations (what she thinks she can
do) were generally consistent with the assessment results and findings
(objective testing results). Once the subjective input is obtained and then the
objective testing is completed, Mr. Shew compares the results for consistency
in determining whether subjective reports match the objective testing. Although
generally consistent, Mrs. McConvey overestimated her abilities in
crouching/squatting and kneeling. She underestimated her abilities for lifting
and carrying, meaning she was able to lift and carry more weight than she
believed she could.
[195] Mr. Shew
explained that a number of placebo and distraction tests were administered to assist
in assessing whether there was any over-exaggeration of subjective pain reports.
All tests were negative, meaning there was no indication of unreliability
insofar as subjective reports of pain were concerned.
[196]
Mr. Shew outlined the following conclusions in his report:
There were no significant observed functional limitations in
her capacity to perform short periods of tasks requiring hand dexterity, grip
strength, standing, walking and balancing. However, if she is to search for an
occupation that requires long periods of weight bearing, I recommend that she
purchase supportive footwear. If she has to obtain work that requires prolonged
static standing (e.g. in a small area), I anticipate that she would likely
benefit from ergonomic equipment such as an anti-fatigue mat or a sit-stand
stool.
She demonstrated difficulties
tolerating tasks requiring forward and overhead reaching, bending/stooping and
squatting/crouching. As such she should avoid occupations that require these
body positions for prolonged and repetitive periods as this would likely
adversely affect her ability to remain productive and likely further negatively
impact her ability to manage her activities outside of work (e.g., non-work
tasks such as leisure activities, household tasks, etc.). [Ex. #5, Tab 4, p. 6]
[197] Mr. Shew observed
functional limitations in Mrs. McConveys ability to sit for prolonged periods
of time and concluded that she is capable of activity requiring sitting on an
occasional basis. While observing her complete the questionnaires and during
the functional testing in the work-intensive position, Mrs. McConvey
frequently shifted in her chair and performed a variety of stretches for her
neck and back and shifted from sitting to standing. If Mrs. McConvey is to
pursue an occupation that requires prolonged periods of being seated she will
require appropriate ergonomic equipment for her workstation.
[198] Mr. Shew
did not observe any functional restrictions in Mrs. McConveys standing
tolerance and her observed static standing tolerance (standing in one place)
was measured at a maximum of 20 minutes before needing to move and have a break
due to fatigue and tightness in her upper back and neck. Based on his observations
and the testing results, Mr. Shew concluded that Mrs. McConvey is capable of
activity requiring standing on an occasional basis.
[199] Insofar as
bending/stooping, squatting/crouching, kneeling, vertical reaching (shoulder to
overhead work) and horizontal reaching are concerned, Mr. Shew concluded from
the testing and his clinical observation of how the tests were performed that
Mrs. McConvey was only able to do these movements on an occasional basis.
[200] A variety
of physical tests were employed to reach the above conclusions including the
Valpar 9 which tests and compares a clients speed to work related standards by
measuring speed, ability and dexterity in a variety of positions with different
tasks. Mrs. McConvey was tested only once on the Valpar 9 battery as her
speeds, unadjusted for learning the tasks, and the accuracy of her motions
demonstrated significant difficulties falling far below what one would
anticipate she could sustain. Her scores fell far below the 100% industrial
standard indicating she fell below the competitive standard of others.
[201] Mr. Shew
acknowledged that the Valpar 9 and the industrial standard are derived from
engineers calculations of movement patterns, not human beings per se. He
explained that the testing provided an ability to observe Mrs. McConveys
competitiveness and likelihood of success in employment that required her body
to be in the positions that are tested. Mr. Shew further explained Mrs.
McConveys score times fell not only below the industrial standard but also below
the qualitative standard in terms of speed and observed movement. In addition,
the performance of the tests and the results demonstrated that her upper
extremity ability on her left side (shoulder and arm) declined more dramatically
than the right side. Mrs. McConveys mobility and ability to reach declined as
testing went on and she avoided use of her left arm as testing went on.
[202] Although
the industrial standard and the Valpar 9 do not compare scores for gender and
age, other tests performed by Mrs. McConvey, such as the Epic Lift Capacity
Test, did involve comparisons for females her age.
[203] In
cross-examination, Mr. Shew confirmed that insofar as Mrs. McConveys strength
requirements are concerned he recommended that she search for jobs that only require
her to manoeuvre loads of 1 to 20 pounds through full body range (floor to
shoulder height) and that higher weights should only be done on a periodic
basis. When it was suggested to him that someone with those types of
restrictions would not be able to move a wheelbarrow loaded with gravel for any
length of time if at all, he did not agree. Mr. Shew indicated that the ability
to move such an item depended on a variety of factors including the type of
wheelbarrow, how good the wheels are on it, the weight of the load, how the
load is moved, whether the person was having a good or bad day, and the slope
of the delivery of the load (flat, uphill or downhill). He did agree that a
person with Mrs. McConveys limitations would likely have difficult moving loads
continuously but, depending on the weight and other factors, might have the
strength to move it a couple of times.
[204] Mr. Shews
report contains a number of recommendations for physiotherapy assessments and
treatments as well as physical and vocational rehabilitation which I will
address under the costs of future care head of damages later in these reasons.
C.
Dr. Robin Garvin
[205] Dr. Robin
Garvin is a family physician and had been Mrs. McConveys doctor since 1998. Before
the plaintiffs motor vehicle accident on May 20, 2008, she had presented at
Dr. Garvins clinic on three occasions — July 30, August 13 and August 29,
2007 — with complaints of diarrhea and gastrointestinal related matters. Dr.
Garvin explained that the notations in his clinical records did not necessarily
mean there was a bowel issue, particularly given the fact that it might be
something as simple as diet.
[206] Dr. Garvin
explained that insofar as the accident was concerned, he first saw Mrs.
McConvey the day after on May 21, 2008. At that time she was exhibiting
symptoms of soft tissue strains in her neck, left thoracic and lumbar spine.
[207] Dr. Garvin
treated Mrs. McConvey on August 26 and December 8, 2008 and again in April 2010
for her complaints of insomnia. He prescribed Amitriptyline to help her sleep
and to address her nerve pain.
[208] His
records also disclose attendances by Mrs. McConvey in March and April 2009 for
complaints related to her neck and shoulder.
[209] On March
25, 2010, Dr. Garvin saw Mrs. McConvey who at that time complained of bilateral
pain in the cervical, thoracic, lumbar and lumbosacral areas of her spine and
with referred pain to both shoulders from the cervical spine. On examination
there was pain to palpation and limitations in movement in the areas of these
soft tissue strains.
[210] Dr. Garvin
saw Mrs. McConvey again on March 30 and April 8, 2010 and she showed no
improvement from March 25, 2010 insofar as the soft tissue strains were
concerned. He provided Mrs. McConvey with a medical note on March 30, 2010 and
again on April 8, 2010, that she was unable to work between March 25 and April
22, 2010, and his clinical records show that this assessment was due to the
soft tissue strains related to the accident.
[211] On
September 4, 2010, Mrs. McConvey was still dealing with the soft tissue strains
she had previously been dealing with from the accident.
[212] Dr. Garvin
had no notation in his clinical records that Mrs. McConvey had a WCB claim with
respect to tripping over a garbage bin at work which led him to conclude that
she may not have told him that she had tripped over a garbage bin at work.
D.
Dr. Grant Meek
[213] Dr. Grant
Meek is a family physician with a general practice at the Panorama Village Medical
Clinic in Surrey. Mrs. McConvey is one of his patients and has been attending
the clinic since October 5, 2009. A number of physicians in Dr. Meeks clinic
have seen Mrs. McConvey when he has been unavailable as the practice permits
patients to see any available physician in the walk-in clinic.
[214] Dr. Meek
reviewed his clinic records for Mrs. McConvey and noted that for the 22 visits
between the period of October 5, 2009 and May 31, 2011, he recorded in her
chart only one complaint of neck pain by Mrs. McConvey, on May 31, 2011.
[215] Although a
variety of matters might be discussed on any visit, Dr. Meek usually only charts
the main presenting complaint. However, if there is a second complaint and time
to discuss it, that too would be charted.
[216] In July
and August 2010, Mrs. McConvey was presenting with complaints of anxiety,
stress, crying and low mood. Dr. Meek explained that his focus is more with the
symptoms than the underlying cause of the symptoms. Although he assessed Mrs.
McConvey as depressed, and noted that she was dealing with the suicide of her
brother, he was not endeavouring in his assessment to determine the cause of
the symptoms of anxiety or depression.
[217] Dr. Meek
acknowledged that since May 2011 he has treated Mrs. McConveys left shoulder
pain with trigger point injections, consisting of a mixture of sterile water
and Lidocaine, a local anaesthetic, to relieve muscle tension.
E.
Dr. Marc Boyle
[218] Dr. Marc
Boyle was called by the defendant as an expert in orthopaedic surgery. He conducted
an independent medical examination (IME) of Mrs. McConvey on November 30, 2011
for one hour. His report, marked Ex. #2, outlines his findings from the
examination as well as his opinion.
[219] Dr. Boyle
concluded that as a result of the accident, Mrs. McConvey sustained soft tissue
injuries or myofacial strain to her cervical spine, left shoulder and lumbar
spine. Review of the June 17, 2011, MRI of Mrs. McConveys cervical spine
revealed a pre-existing condition of advanced cervical spondylosis that was not
caused by the accident.
[220] Insofar as
long term or permanent disability was concerned for Mrs. McConvey, based on the
injuries sustained in the accident and the pre-existing lumbar and cervical
spine pathology, Dr. Boyle agreed with the assessment of Dr. Garvin and the
physiotherapist that a four to five month time away from work would be a
sufficient period of time for Mrs. McConvey to recover.
[221] Dr. Boyle
explained he did not find any intrinsic pathology to explain the tenderness of
the shoulder area that Mrs. McConvey exhibited in his assessment. The fact that
she was tender everywhere upon palpation of her shoulder led him to conclude
that the source of the pain may have been radiating from the discomfort in her
neck.
[222] Mrs.
McConvey told Dr. Boyle during the examination that the only therapy she
engaged in was walking. In Dr. Boyles opinion this was insufficient and that a
patient needs to do the exercises from physiotherapy on a daily basis in order
to diminish incidents of flare-ups. He further indicated that active
physiotherapy including stretching and strengthening exercises on a daily basis
are the best therapy for recovery from, and management of, soft tissue injuries.
[223] Dr. Boyle
agreed in cross-examination that he never questioned Mrs. McConveys
credibility in his report nor did he offer an opinion that at the time of his IME
assessment that she had recovered from her injuries. Instead, his opinion was
that she had recovered because she was able to return to work as noted by Dr.
Garvin and the physiotherapist.
[224] While Dr.
Boyle is indeed a qualified expert, I have reservations as to the reliability
of his opinion in this particular case. He testified that Mrs. McConvey
appeared healthy when he examined her, an examination that involved her wearing
a hospital gown and his touching various areas of her body. Dr. Boyle indicated
that she was responsive and did not appear inappropriate at the time of the
examination. However, Mrs. McConveys indication to him that she had not
returned to work since the accident, in light of the documentary information to
the contrary that he possessed, ought to have been an indicator of a potential
difficulty.
[225] Mrs.
McConvey testified she could not recall word for word what she told Dr. Boyle
during the examination and emphasized that by the time of the IME with Dr.
Boyle she was very ill. Indeed she was hospitalized three weeks later with the
severe streptococcal infection. She conceded that if she did tell him she had
not worked since the accident that would be incorrect.
[226] Mrs.
McConvey testified that by the time she saw Dr. Boyle she had the full blown
symptoms of the rash and recalled asking Dr. Boyle about her horrible skin
condition as she was desperate for answers on what the condition might be. Although
she was not hospitalized for this condition for another three weeks, she had
been seeing her doctors at Panorama Village Medical Clinic and a skin
specialist in the Guilford area before she went to the IME with Dr. Boyle. She
was not challenged on this aspect of her evidence.
[227] Dr. Boyle
did not recall if Mrs. McConvey had a skin rash and seemed to think she looked
the same on examination as she did at trial. The evidence would suggest
otherwise and that by November 30, 2011 Mrs. McConvey was in fact quite ill and
exhibiting symptoms of the infection with a rash all over her body by that time.
[228] Given
these difficulties and the fact that Dr. Boyle did not specifically opine that
Mrs. McConvey had in fact recovered, I am not inclined to afford much weigh to
his opinion. In that respect, where Dr. Boyles opinion conflicts with other expert
evidence, I prefer the evidence of Dr. Shuckett and Mr. Shew as to their
overall comprehensive assessment of Mrs. McConvey.
[229] I turn now
to an assessment of the issues of causation and my findings on the evidence and
the appropriate measure of damages in this case.
VI.
Analysis
A.
Causation
[230] The first
issue to be addressed is whether the accident caused the injuries Mrs. McConvey
claims she sustained, whether her current problems were caused by the injuries
from the accident and whether there were pre-existing injuries or conditions
that would be expected to have detrimentally affected the plaintiff in the
future even without the accident.
[231] The
plaintiff must establish on a balance of probabilities that the defendants negligence
caused the injuries. The defendants negligence need not be the sole cause of
the injuries so long as it is part of the cause beyond the range of de
minimus. Causation need not be determined by scientific precision: Athey
v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17.
[232] The
primary test for causation asks: but-for the defendants negligence, would the
plaintiff have suffered the injury? The but-for test recognizes that
compensation for negligent conduct should only be made where a substantial connection
between the injury and the defendants conduct is present: Resurfice Corp.
v. Hanke, 2007 SCC 7, at paras. 21-23. Inherent in the but for test
is the requirement that the defendants negligence was necessary to bring about
the injuries sustained by the plaintiff. To put it another way the injury
would not have occurred without the defendants negligence: Clements v.
Clements, 2012 SCC 32 [Clements] at paras. 6-8, 13 and 46; Jokhadar
v. Dehkhodaei, 2010 BCSC 1643 [Jokhadar] at para 107. The but for
causation test is to be applied in a robust common sense manner: see Clements
at paras. 9 and 46.
[233] Causation
must be established on a balance of probabilities before damages are assessed.
As McLachlin, C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at para.
78:
Even though there may be several tortious and
non-tortious causes of injury, so long as the defendants act is a cause of the
plaintiffs damage, the defendant is fully liable for that damage. The rules of
damages then consider what the original position of the plaintiff would have
been. The governing principle is that the defendant need not put the plaintiff
in a better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: [Athey v.
Leonati].
[234] The most
basic principle of tort law is that the plaintiff must be placed in the
position she would have been if not for the defendants negligence, no better
or worse. The tortfeasor must take his victim as they find them, even if the
plaintiffs injuries are more severe than they would be for a normal person
(the thin skull rule). However, the defendant need not compensate the plaintiff
for any debilitating effects of a pre-existing condition which the plaintiff
would have experienced anyway (the crumbling skull rule): Athey v. Leonati, at
paras. 32-35.
[235] Addressing
the issue of causation where a plaintiff suffers from symptoms contributed to
by more than one cause, Willcock J. noted in Jokhadar:
[108] Causation issues may be difficult in cases
where the plaintiff suffers psychiatric symptoms or chronic pain contributed to
by multiple causes. In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131
(C.A.), Taylor J.A., considering a claim for damages arising out of chronic
benign pain syndrome, in a frequently cited passage wrote, at para. 15:
… there may be cases where a chronic benign pain
syndrome will attract damages. That will happen where the plaintiff’s condition
is caused by the defendant and is not something within her control to prevent.
If it is true of a chronic benign pain syndrome, then it will be true also of
other psychologically-caused suffering where the psychological mechanism,
whatever it is, is beyond the plaintiff’s power to control and was set in
motion by the defendant’s fault.
… With respect to the evidence required in order to
meet the onus lying on a plaintiff in such cases, Chief Justice McEachern (then
sitting as a trial judge) in Price v. Kostryba (1982), 70 B.C.L.R. 397
(S.C.), repeating his observations in Butler v. Blaylock [1981] B.C.J.
No. 31 (October 7, 1981, Vancouver B781505 (B.C.S.C.)), put it thus:
I am not stating any new principle when I say that the
court should be exceedingly careful when there is little or no objective
evidence of continuing injury and when complaints of pain persist for long
periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence − which could be just his own evidence if the
surrounding circumstances are consistent − that his complaints of pain
are true reflections of a continuing injury.
These principles were recently affirmed by the Court
of Appeal in Mariano v. Campbell, 2010 BCCA 410.
The Crumbling Skull
[109] In Zacharias v. Leys, 2005 BCCA 560, a
judgment pronounced in the interval between Athey and Resurfice,
our Court of Appeal addressed the distinction between weighing evidence of
causation and considering evidence going to the measure of damages. The
distinction is important, particularly in cases where the plaintiff is alleged
to have had a crumbling skull:
16 The crumbling skull rule is difficult
to apply when there is a chance, but not a certainty, that the plaintiff would
have suffered the harm but for the defendants’ conduct. Major J. addressed this
issue in Athey when he wrote, at paragraph 35, that damages should be
adjusted only when there is a "measurable risk that the pre-existing
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence." Such a risk of harm need not be
proved on a balance of probabilities, which is the appropriate standard for
determining past events but not future ones. Future or hypothetical events
should simply be given weight according to the probability of their occurrence.
At paragraph 27, Major J. wrote that "if there is a 30 percent chance that
the plaintiff’s injuries will worsen, then the damage award may be increased by
30 percent of the anticipated extra damages to reflect that risk." In the
same paragraph, he went on to say that a future event should be taken into
account as long as it is a "real and substantial possibility and not mere
speculation."
[110] The defendants must, therefore, if they seek
to establish that the plaintiffs bipolar illness would have in any event
disabled her or reduced her income from employment, show there was a measurable
risk that the pre-existing condition would have detrimentally affected the
plaintiff in the future, regardless of the defendant’s negligence.
Contingencies must be taken into account, as the court noted in Zacharias:
17 Because in Athey the Supreme
Court found that there was no basis for finding a "measurable risk",
it is of limited assistance when applied to cases in which there is not clearly
an absence of a measurable risk. A number of decisions in this Court have
struggled with that issue. In York v. Johnston (1997), 37 B.C.L.R. (3d)
235 (C.A.), the plaintiff suffered a relapse of her multiple sclerosis after a
car accident. Newbury J.A., for the Court, held that it was a "thin
skull" case, but that, nonetheless, it was appropriate to reduce the
plaintiff’s damages in recognition that she might have relapsed anyway. At
paragraph 6, Newbury J.A. contrasted the standards used to assess liability and
damages:
Of course, the judgment as to the measure of damages
is a much more subtle one than that as to causation, not only because it
involves a consideration of mere contingencies as well as probabilities, but
because of the range of results available in the discounting of the award, as
opposed to the "all or nothing" choice that must be made with respect
to causation.
The trial judge reduced the damages to reflect the
risk of relapse that pre-existed the accident. Newbury J.A. held that the trial
judge was entitled to make such a reduction, even though there was only a weak
evidentiary foundation on which to conclude that the plaintiff would have
remained symptom-free for just five years.
[111] In the case at bar the plaintiff clearly
suffered from a manifest pre-existing condition that was likely to have
affected her whether or not the motor vehicle accident had occurred. That
condition must be taken into account in measuring damages. Any measurable risk
established by the evidence that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the defendant’s
negligence must be considered: see Pryor v. Bains (1986), 69 B.C.L.R.
395 (C.A.); T.W.N.A. v. Clarke, 2003 BCCA 670; McKelvie v. Ng,
2001 BCCA 384.
[236] With those
principles in mind, I turn to an examination of each of the injuries and
symptoms Mrs. McConvey asserts were caused by the accident and which she says remain
unresolved.
[237] There was
considerable evidence led as to Mrs. McConveys level of functioning in the
years prior to the accident and up to the accident. The day-to-day activities
were clearly delineated in the evidence of Mrs. McConvey and her husband and
went unchallenged.
[238] I make the
following findings of fact based on my consideration of the evidence of the lay
and expert witnesses, having considered the evidence as a whole. Mrs. McConveys
original position immediately prior to the accident included the following:
·
no physical difficulties or associated pain with her neck, left
shoulder or lower back;
·
asymptomatic degenerative disc disease in her neck;
·
no difficulties with sleep;
·
no difficulties with headaches other than the odd headache from
time to time;
·
physically active and capable of vigorous gardening, associated
yard work and strenuous house cleaning;
·
suffering a significant psychological blow and associated
emotional trauma with the suicide of her brother five days before the accident;
·
her medical history discloses a tendency towards bouts of
depression and anxiety as well as gastrointestinal difficulties.
[239] As a
result of the accident, Mrs. McConvey says she sustained soft tissue injuries
to her neck, shoulder girdle and lower back. Related to her injuries and the
pain associated with them she experiences severe headaches, sleeplessness and
fatigue. The defendant acknowledges the plaintiff suffered some soft tissue
injuries but says they resolved by May 2009 and that any further difficulties Mrs.
McConvey has experienced since May 2009 are unrelated to the accident.
[240] I will now
address the various injuries and symptoms Mrs. McConvey asserts have been
caused by the accident and continue to affect her.
1.
Neck and Shoulder Symptoms and Myofascial Pain Syndrome
[241] Prior to
the accident, Mrs. McConvey had no difficulty with her neck or shoulder girdle
area. The defendant concedes that she sustained soft tissue injuries in these
areas but submits they resolved by May 2009. The evidence of Dr. Garvin, Dr.
Meek, Dr. Shuckett and Mr. Shew all confirm Mrs. McConveys continuing
complaints of pain in these two areas and that she is still being treated by
Dr. Meek with trigger point injections in the left shoulder area. The
pre-existing degenerative disc condition in her neck was asymptomatic and it is
unclear whether it would have materialized and become symptomatic but for the
accident. Accordingly, the defendant has not shown there was a measurable risk
that the pre-existing condition would have detrimentally affected the plaintiff
in the future, regardless of the defendant’s negligence.
[242] I conclude
from Dr. Shucketts evidence that Mrs. McConvey continues to experience pain in
her neck and shoulder girdle region which has developed into myofascial pain
syndrome. Dr. Shucketts observations as a result of an examination of Mrs.
McConvey in these areas provided a measure of confirmation to Mrs. McConveys
claims. It is equally clear from Dr. Shucketts evidence that the pain and pain
syndrome will continue into the future but will likely dissipate in intensity.
[243] Dr.
Shuckett outlined how the plaintiff has developed myofascial pain syndrome in
the left neck and shoulder girdle region and that this was evident upon her
physical examination of Mrs. McConvey. The results of Mr. Shews testing and
evaluation confirm physical limitations in this area of Mrs. McConveys body. The
evidence also establishes that this condition and the limitations were not present
prior to the accident.
[244] On the
totality of the evidence, particularly Dr. Shuckett and Mr. Shew, I accept that
Mrs. McConvey has established to the requisite standard that she suffered soft
tissue injuries to her neck and shoulder as a result of the accident and that
the related symptoms from these injuries continue to affect her to this day, having
developed into myofascial pain syndrome in this area.
2.
Lower Back Symptoms
[245] Mrs.
McConvey had back surgery in 1998 that resulted in the fusion of her L4, L5 and
SI vertebrae. She fully recovered from that surgery within one year and did not
need to take any prescribed medication for her back once she was fully
recovered. In the five years prior to the accident she felt wonderful and had
no difficulties or pain with her back apart from two minor work strains in 2005.
Those two incidents, however, were not of such a magnitude as to create further
difficulties for Mrs. McConvey in the years prior to the accident.
[246] Mrs.
McConvey outlined that her lower back was injured as a result of the accident
and the defendant concedes that this was part of the soft tissue injuries
sustained in the accident. The defendant argues, however, that this aspect of her
injuries had also resolved by May 2009.
[247] The
evidence with respect to the continuing difficulties with Mrs. McConveys lower
back pain is a bit more equivocal. Dr. Shucketts opinion with respect to the
lower back was more in the nature of it being a muscle and ligament injury and
not something presenting as having painful trigger points on physical
examination. Mr. Shew was of the opinion that Mrs. McConvey could handle static
standing for periods of time of up to 20 minutes but noted shifting and
movement while conducting his assessment of Mrs. McConvey including shifting
and stretching for the upper back and neck area.
[248] After the
accident Mrs. McConvey underwent a course of physiotherapy that included
treatments for her back.
[249] In summary,
on this issue, I find that Mrs. McConvey has established she suffered soft
tissue injuries to her lower back as a result of the accident but that the
totality of the evidence supports the inference that this aspect of her
injuries has largely resolved with only minimal flare-ups from time to time
when she over-extends herself.
3.
Headaches
[250] Headaches
are part of the plaintiffs complaint of the injuries she sustained in the
accident. Before the accident, Mrs. McConvey did not suffer from headaches more
than any other individual. She was not a headachy person as she described
herself. Immediately after the accident she experienced an insane ringing in
her ears and had significant difficulty with headaches. Dr. Garvins clinical
records support her contention of difficulty with headaches in the aftermath of
the accident.
[251] Dr.
Shuckett offered an opinion on cervicogenic headaches with migraine features
but had to concede that a neurologist was the appropriate discipline for
diagnosing the nature and quality of Mrs. McConveys headaches.
[252] What I
find from the evidence in respect of this injury is that Mrs. McConvey suffered
severe headaches for a number of months after the accident but the severity has
abated. Although Mrs. McConvey continued to experience headaches in 2011 Dr.
Shuckett was in no position to stratify the nature of them. Accordingly, I find
that the plaintiff has experienced headaches of a nature and frequency markedly
different from those experienced prior to the accident but that their initial
post-accident intensity and frequency have diminished over time.
4.
Sleeplessness and fatigue
[253] The
evidence establishes that prior to the accident, Mrs. McConvey slept on her
stomach, had little difficulty with sleep and did not require medication to
help her sleep through the night. Since the accident, Mrs. McConvey has had to
change her sleeping position to lying on her back. She has difficulty getting
comfortable. She now relies on medication, particularly amitriptyline (Elavil),
to help her sleep through the night. If she takes her medication she sleeps
through the night but is foggy the next day. If she does not take her
medication she does not get a good nights sleep and is left exhausted.
[254] Mrs.
McConvey experienced periods of insomnia after the accident and through to
April 2010 which is charted in her clinical records with Dr. Garvin and Dr.
Meek (February 2010).
[255] I find
that Mrs. McConvey has proved that the pain from her injuries disrupted her
sleep and continues to do so and that the impaired sleep and related fatigue
when she does not sleep is, therefore, attributable to the negligence of the
defendant.
5.
Depression, anxiety, IBS and PTSD
[256] The defendant
asserts that there is no causal connection between the soft tissue injuries Mrs.
McConvey sustained in the accident and the pre-existing conditions of depression
from brothers suicide, IBS and anxiety. The defendant also says there is no
evidence to support the inference that the injuries to Mrs. McConveys neck,
left shoulder and lower back aggravated her depression, anxiety or IBS symptoms
or the reverse that her depression, anxiety or IBS symptoms exacerbated her
soft tissue injuries and aggravated the pain to her neck, left shoulder and
lower back. Accordingly, argues the defendant, the plaintiff has failed to
substantiate any causal connection between her depression, anxiety and IBS and
the accident.
[257] In the
case at bar, Mrs. McConvey did not suffer from a manifest pre-existing
condition like, for example, the bipolar disorder that the plaintiff was
afflicted with in Jokhadar. However, prior to the accident she had been
previously diagnosed as suffering from IBS as well as being prone to anxiety
and depression. Moreover, she had also experienced a catastrophic emotional
trauma with the suicide of her brother just five days before the accident. In
that respect she was in a damaged position as a result of this trauma at the
time the accident occurred that likely would have detrimentally affected the
plaintiff in the future in any event.
[258] It is also
clear from the evidence of Mrs. McConvey, Dr. Garvin and Dr. Meek as well as
the clinical records that the concerns about and symptoms for IBS and
depression did not manifest themselves in a significant way until August 2010
when she took her second leave from HBC. Mrs. McConvey has explained that part
of her depression came about as a result of finally dealing with the grief over
the loss of her brother in 2008.
[259] What is
not clear, however, is the interrelationship between Mrs. McConveys claims of
depression, IBS, PTSD and the continuing pain she experiences as a result of
the soft tissue injuries as well as the delayed response to the aftermath of
her brothers suicide. While Dr. Shuckett suspects an inter-relationship
insofar as depression and the accident are concerned, she would defer to a psychiatric
opinion on this point. However, there was no psychiatric evidence adduced on
this complicated aspect of Mrs. McConveys condition. While the clinical
records of Drs. Garvin and Meek make reference to their assessments of
depression and prescription of anti-depressant medication, there is no opinion
or evidence as to the inter-relationship between the depression, Mrs.
McConveys brothers suicide and the accident. There is an evidentiary vacuum
on this feature. While intuitively it may make sense to conclude that the
accident, the injuries and the development of depression are somehow
interrelated, on the state of the evidence in this case, this contention amounts
to little more than speculation.
[260] The same
reasoning applies to Mrs. McConveys claims of IBS and attribution of this
syndrome as a bi-product of dealing with the injuries sustained as a result of
the accident. Mrs. McConvey concedes she had difficulties with this issue prior
to the accident. Dr. Garvin noted it in August 2007 but describes it more as a
catch all assessment when a physician is uncertain about a diagnosis.
[261] Mrs.
McConvey has pleaded PTSD as one of the injuries she sustained as a result of
the accident. Apart from a questioned notation by Dr. Galina Stovskaia of
PTSD? in the assessment section of the August 14, 2010 clinical record, a
notation about the condition in the consultation report of December 23, 2011
from Peace Arch Memorial Hospital and Mrs. McConveys advising Kim Andrews of
HBC and Dr. Shuckett that she had PTSD, no evidence, in particular expert
evidence, was adduced on this condition. The evidence does not establish whether
there was an actual diagnosis, let alone what inter-relationship may exist
between that condition and the accident injuries.
[262] Plaintiffs
counsel argues the conditions of depression, PTSD and IBS are indivisible from
the other injuries sustained in this case and as such the defendant is liable
for these health consequences as well, citing Bradley v. Groves, 2010
BCCA 361 [Bradley], Morlan v Barrett, 2010 BCSC 1767 [Morlan]
and Ashcroft v. Dhaliwal, 2007 BCSC 533 [Ashcroft] in
support of the argument.
[263] Morlan simply
addresses the issue of indivisibility in the context of injuries arising
from two separate motor vehicle accidents that occurred on the same day.
[264] Similarly,
Ashcroft addressed the issue of the liability of the defendants from a first
motor vehicle accident for the plaintiffs injuries exacerbated by a subsequent
motor vehicle accident. The plaintiffs claim in respect of the second accident
settled before the trial of the first accident. The second accident was
relatively minor compared to the first accident. The plaintiff sustained soft
tissue injuries in both accidents, the second accident intensifying the
plaintiffs pain in her back and neck which had not fully recovered from the
first accident the year before.
[265] In Ashcroft
at para. 29, Shaw J. determined that Athey drew a distinction
between divisible and indivisible injuries. Those injuries caused or materially
contributed to by a tort are said to be indivisible. Divisible injuries are
those where the causal connection to the tort are not established. Shaw J. went
on to conclude that the injuries and consequences resulting from the second
accident were indivisible from the original tort (the first accident) and its
consequences because: (i) the plaintiff had not recovered from her injuries
from the first accident when the second occurred; (ii) the injuries from the
first accident made the plaintiff vulnerable to any further accident that might
exacerbate her condition; and (iii) the injuries sustained in the second
accident were within the scope of her vulnerability.
[266] In Bradley,
the plaintiff again was dealing with injuries from two separate accidents that
the trial judge found to be indivisible, as the injuries from the second
accident aggravated the injuries of the first accident. Ms. Bradley was
considered to be a pristine plaintiff and not an already damaged plaintiff at
the time of the first accident.
[267] In
contrast, here it can be said that Mrs. McConvey was in some respects an
already damaged or vulnerable plaintiff at the time of the only accident in
issue given the tragic events of her brothers suicide five days before the
accident. As the Court of Appeal notes in Bradley, at para. 30, the
proper approach is to consider the plaintiffs original position at the time of
the accident. A plaintiff is not to be compensated for damages she would have
suffered anyway arising from previous traumas or a pre-existing condition. In
the case at bar there is an absence of an evidentiary foundation to support the
assertion that Mrs. McConveys conditions of depression, IBS and PTSD were
exacerbated by the accident or the injuries she sustained therein. Moreover,
this is not a case of a subsequent tortious action merging with a prior
tortious action to create an injury that is not attributable to one particular
tortfeasor. Rather, this is a case of single tortfeasor causing soft tissue
injuries to the plaintiff that continue to affect the plaintiff, where the
plaintiff was in a vulnerable position in any event based on a prior unrelated emotional
trauma.
[268] The evidence
does not establish any causal connection between the accident and (i) the later
depression Mrs. McConvey experienced in 2010, (ii) the seemingly self-diagnosed
PTSD (there was no expert evidence adduced on this purported diagnosis) or
(iii) the gastrointestinal / IBS issues. There appears to be an overlay of
depression and IBS symptoms but they have arisen and intensified two years
post-accident. I acknowledge that the existence of myofascial pain syndrome and
the continuing pain Mrs. McConvey experiences from her injuries may play a role
in exacerbating the anxiety and depressive disorders and IBS symptoms Mrs.
McConvey experienced in 2010. However, the medical and expert evidence is
inconclusive as to the role that depression and IBS play in the ongoing
difficulties that Mrs. McConvey is experiencing. I am unable to conclude that
the accident caused the depression and IBS, particularly as there appears to be
an element of pre-disposition and pre-existing condition for these two
conditions. Nor am I able to conclude that the continuing pain symptoms from
the soft tissue injuries necessarily contributed to the development of these
conditions in 2010.
[269] Given the
foregoing, I find that the plaintiff has not proven on a balance of
probabilities that her claims relating to depression, PTSD and IBS were caused
by the defendants negligence and I find these conditions divisible from the
other injuries sustained.
B.
Conclusion on causation
[270] The
accident caused moderate soft tissue injuries to Mrs. McConveys left neck and
shoulder girdle area. As of trial these injuries have not completely resolved
and her symptoms have developed into myofascial pain syndrome. Mrs. McConvey
also sustained soft tissue injuries to her lower back as a result of the
accident but the evidence does not establish that these injuries have developed
into a chronic condition. The evidence of Mr. Shew and Dr. Shuckett, including
the results from their testing, observations and physical examination, provide
confirmatory evidence that the soft tissue injuries have not resolved insofar
as the neck and shoulder girdle area are concerned. As a result of the injuries
sustained in the accident, Mrs. McConvey also experienced severe headaches, impaired
sleep and fatigue. The headaches have abated in severity and duration although
they continue to bother Mrs. McConvey from time to time. Impaired sleep remains
a difficulty if medications are not taken to assist in sleeping and if taken
result in sleep but fogginess the next day.
[271] The pain
associated with the above soft tissue injuries as well as her headaches,
diminished quality of sleep and related fatigue, continue to affect Mrs.
McConvey and contribute significantly to her reduced functioning. This will
continue indefinitely, to some degree, although physiotherapy and an exercise
rehabilitation program will likely assist her in minimizing the effects. And as
Dr. Shuckett noted, resolution of the litigation may also play a role in
reducing the intensity of the ongoing symptoms.
VII.
Non-Pecuniary damages
[272] The objective of an award of non-pecuniary damages is to compensate
a plaintiffs pain, suffering, loss of enjoyment of life and loss of
amenities. The award is to compensate a plaintiff for those
damages she has suffered up to the date of the trial and for those she will
suffer in the future. The essential principle derived from the authorities is
that fairness and reasonableness of an amount of an award for non-pecuniary
damages is measured by the adverse impact of the particular injuries on a
particular individual plaintiff.
[273] The compensation awarded should be fair and reasonable to both
parties: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews];
Jackson v. Lai, 2007 BCSC 1023, at para. 134 [Jackson]; Kuskis v.
Hon Tin, 2008 BCSC 862, at para. 135 [Kuskis]. Fairness
is measured against awards made in comparable cases. Such
cases, though helpful, serve only as a rough guide as no two cases are alike. Each
case depends on its own unique facts: Trites v. Penner, 2010 BCSC
882 at paras. 188-189; Andrews;
Kuskis at para 136; Edmondson v. Payer, 2011 BCSC 118 at para.94
[Edmondson]; Bissonnette v. Horn, 2012 BCSC 518 at para. 80 [Bissonnette];
MacKenzie v. Rogalsky, 2011 BCSC 54 at para. 248 [MacKenzie].
[274] The relevant factors in assessing non-pecuniary damages are
comprehensively summarized in Lakhani v. Elliott, 2009 BCSC 1058, at
para. 104:
[104] There are a number of factors the court must take into account when
assessing this type of claim. Justice
Kirkpatrick, writing for the majority in Stapley v. Hejslet, 2006 BCCA
34, 263 D.L.R. (4th) 19, outlined these factors at para. 46:
The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:
a. age of the plaintiff;
b. nature of the injury;
c. severity and duration of pain;
d. disability;
e. emotional suffering; and
f. loss or impairment of life.
I would add the following factors, although they may
arguably be subsumed in the above list
g. impairment of family, marital and social
relationships;
h. impairment of physical and mental
abilities;
i. loss of lifestyle; and
j. the plaintiffs stoicism (as a factor that
should not, generally speaking, penalize the plaintiff: Giang v. Clayton,
[2005] B.C.J. No. 163, 2005 BCCA 54).
(see also Kuskis at para. 138; Edmondson
at para. 94; and MacKenzie at para. 249).
[275] The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiffs personal experiences in dealing with her injuries and their consequences,
and the plaintiffs ability to articulate that experience: Dilello v.
Montgomery, 2005 BCCA 56 at para. 25.
[276] It is
within the context of these legal principles and the findings of fact that I
have made that the plaintiffs damages should be assessed.
[277] Mrs.
McConveys position is that she should receive an award of $95,000 to $120,000
for non-pecuniary damages, arguing such an award is merited on the basis of the
continuing symptoms she suffers from in terms of the soft tissue injuries,
coupled with the interference of stress over the pain adding to her depression
and IBS and the overall continuing negative impact on all aspects of her life
[278] In support
of the range advanced, the plaintiff relies upon Ashcroft
v. Dhaliwal, 2007 BCSC 533 ($120,000), Yeung v.
Dowbiggin, 2012 BCSC 206 ($85,000), Juraski v. Beek, 2011 BCSC 982
($75,000), Morlan v. Barrett, 2010 BCSC 1767 ($125,000), MacKenzie v.
Rogalsky, 2011 BCSC 54 ($100,000), and Smaill v. Williams, 2010 BCSC
73 ($100,000).
[279] The
position of the defendant is that the award should between $35,000 and $45,000.
The defendant submits the soft tissue injuries Mrs. McConvey experienced
were mild to moderate and, on the evidence, her complaints of depression and
IBS were evident prior to the accident. The primary position of the defendant is
the ongoing pain symptoms the plaintiff complains of are not injuries from the
accident, and accordingly non-pecuniary damages should be in the lesser range
of $35,000 to $45,000.
[280] In support
of the range it advances, the defendant relies on Napoleone v. Sharma,
2008 BCSC 1539 ($35,000), Bissonnette v. Horn, 2012 BCSC 518 ($50,000), Wilkinson
v. Whitlock, 2011 BCSC 1781 ($40,000), and Schmidt v. Hawkins, 2010
BCSC 1154 ($45,000).
[281] While the authorities are instructive, awards of damages in other
cases provide a guideline only. No two cases are alike: Bissonnette at
para. 80. Neither the cases cited by the plaintiff or the defendant appear to
be broadly comparable to the plaintiffs situation. The defendants cases
largely are less severe than the circumstances of the plaintiff and the cases
cited by the plaintiff, for the most part, are more severe including the fact
that some involve the cumulative effect of successive accidents exacerbating
injuries from a prior accident.
[282] In my
view, Mrs. McConveys position, before contingencies are taken into account, is
at the lower end of the range suggested by the plaintiff, particularly as I
have not found any causal connection between the ongoing pain symptoms and her
depression and IBS. I have also rejected the defendants contention that the
injuries resolved as of May 2009. I have found that Mrs. McConveys primary
injury from the accident was of a soft tissue type to her neck and shoulder
girdle from which she still experiences symptoms some four years later (as of
the commencement of the of trial) and where she has developed myofascial pain
syndrome. She also sustained soft tissue injuries to her lower back but those
injuries appear to be largely resolved with occasional flare-ups from time to
time. Related to the symptoms from the injuries and caused by the accident is
diminution in the quality of Mrs. McConveys sleep which requires medication to
aid in sleep and she continues to experience headaches though of lesser
intensity and frequency compared to the first few months following the
accident. In my view, her injuries fall within the moderate range and have not
yet fully resolved, particularly the neck and shoulder girdle area injuries.
[283] The
injuries and their continued pain symptoms have affected all aspects of Mrs.
McConveys life including her work, recreation and family activities. They have
affected her ability to enjoy recreational pursuits and other activities and intuitively
may have contributed to the exacerbation of any depression caused by her
brothers death, but that has not been properly established. They have
interfered with her relationship with her husband and other family members and
have negatively undermined her previous confidence and outgoing personality.
[284] While I
have not found the claim that Mrs. McConveys depression, anxiety and IBS are
matters proven to be caused by the accident and injuries she sustained in it, the
injuries and continuing pain symptoms no doubt have impacted on these
conditions.
[285] Mrs. McConvey
also seeks an award of $15,000 for loss of housekeeping capacity, in addition
to the award for non-pecuniary damages. This is included as a bare assertion in
the plaintiffs written submissions without any substantiation of the claim.
[286] The defendant
argues there is minimal evidence to support the notion that the plaintiff was
impaired in this respect after her return to work with ATC. Mrs. McConvey told
Dr. Boyle she had returned to doing the household chores by the time of the IME
assessment. Elsewhere I placed little weight on what Dr. Boyle reports Mrs.
McConvey told him during the IME assessment given her significantly compromised
state of health at the time of the assessment but this aspect is confirmed by
the evidence of both Mr. and Mrs. McConvey.
[287] On Mrs.
McConveys evidence she has returned to most of her domestic chores albeit at a
reduced intensity and relies upon family members to lift and carry heavier
items like the vacuum cleaner, full loads of laundry and the grocery bags. She occasionally
hires outside help to do spring cleaning, however, few details as to frequency
or cost were provided. Mr. McConvey confirms his wifes evidence on this point
and both were largely unchallenged on this aspect of their evidence.
[288] In OConnell
v. Yung, 2012 BCCA 57, Madam Justice Kirkpatrick reviewed the principles
that govern claims for loss of housekeeping capacity as well as the cost of
future care. In that case the trial judge had conflated the tests and erred in
the approach to cost of future care. Kirkpatrick J.A. outlined the principles
as follows:
[64] Kroeker v. Jansen (1995), 123 D.L.R.
(4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), and McTavish v. MacGillivray,
2000 BCCA 164, 74 B.C.L.R. (3d) 281, both concerned the loss of housekeeping
capacity which, prior to Kroeker, had not been accepted in this Province
as a separate head of damage.
[65] As explained by Professor Cooper-Stephenson
in Personal Injury Damages in Canada, 2d ed. (Scarborough: Carswell,
1996) at 315, the claims for loss of home making capacity and for future cost
of care are distinct:
The claim for loss of homemaking capacity is for the
loss of the value of work which would have been rendered by the plaintiff,
but which because of the injuries cannot now be performed. The plaintiff has
lost the ability to work in a manner that would have been valuable to her- or
himself as well as to others. The claim is not the same as that under future
cost of care, which is for the value of services that must now be rendered to
the plaintiff. It is true that the two claims may overlapjust as the
normal claim for loss of earnings and cost of care may do sobecause the cost
of care claim may include items which the plaintiff-homemaker would have
performed but for the accident. However, a large portion of homemaking involves
the performance of work for others, namely, the family unit, and in many cases
the claim for loss of homemaking capacity is wholly distinguishable from that
for cost of care, particularly if the plaintiff is hospitalized. The loss is a
negative loss, in the sense that it is the loss of something the plaintiff
would have had (her homemaking work) but which she now does not have because of
the accident. This places it squarely under the head of loss of working
capacity. In contrast, the expense of services provided by others to care
for the plaintiff are positive lossesthe addition of an extra expenseand
they clearly fall under cost of care.
[66] Indeed, in McTavish, the Court
distinguished between loss of housekeeping capacity and future care costs, at
para. 43:
[43] As I have noted, the majority in Kroeker
quite clearly decided that a reasonable award for the loss of the capacity to
do housework was appropriate whether that loss occurred before or after trial.
It was, in my view, equally clear that it mattered not whether replacement
services had been or would be hired. It did not adopt the analogy with
future care as a general rule. Nor did it permit, nor in view of the
authorities to which I have referred could it have permitted, a deduction for
the contingency that replacement services might not be hired. Allowances for
contingencies are for risk factors that might make the loss of capacity more or
less likely. [My emphasis.]
[67] As noted by Madam Justice Huddart in McTavish,
at para. 16, the case was concerned with the development of principled
restraints on claims for loss of housekeeping capacity. One of the principles
approved in Kroeker came from Fobel v. Dean (1991), 83 D.L.R.
(4th) 385 at 407, [1991] 6 W.W.R. 408 (Sask.C.A.), in which it was
said that it is not necessary for a plaintiff to prove that someone will be
employed to do the work in the future to be entitled to an award for loss of
housekeeping capacity. As I understand the principle, it is the loss of a
capacity an asset that is compensated. Accordingly, because the award
reflects the loss of a personal capacity, it is not dependent upon whether
replacement housekeeping costs are actually incurred…
[289] In Kroeker,
Gibbs J.A. recognized the need for caution in making awards under this head
of damages lest it unleash a flood of excessive claims. And, in McTavish
the court held that an appropriate method of compensating for loss of
housekeeping capacity is on a replacement cost basis, even if the services in
question were replaced voluntarily by family members.
[290] Counsel
for Mrs. McConvey simply submits that $15,000 should be awarded for this
portion of her claim. The difficulty with this submission is a lack of evidence
as to how many hours were spent by other family members performing services
that would otherwise have been performed by Mrs. McConvey and no evidence was
adduced as to the market value of those services. The evidence was only of the
most general nature that Mr. McConvey and his son did most of the domestic
chores during the first four months of recovery and that they still assist in
some of the heavier lifting demands.
[291] In Morlan,
Stewart J. declined to award a separate amount for cleaning finding it not to
be reasonable in the circumstances and stating at para. 29:
[29] … I am alive to the Court of Appeals
decision in Kroeker v. Jansen, [1995] B.C.J. No. 724 and realize
that the loss in question is personal to the plaintiff. But the fact is that
the plaintiffs husband is ready, willing and able to do the cleaning. The
plaintiffs real loss is her dissatisfaction at the way the cleaning is done. Her
loss is taken into account in the award for non-pecuniary damages (Deglow v.
Uffelman, 2001 BCCA 652 at paragraph 24).
[292] In Eaton
v. Regan, 2005 BCSC 3 at para. 46, Mr. Justice Joyce also concluded it is
open to a trial judge to compensate for the loss of housekeeping capacity as a
factor in the assessment of non-pecuniary damages.
[293] As in Eaton,
given the lack of evidence with regard to replacement cost, that is the most
appropriate way to compensate Mrs. McConvey in this case. Similarly, the
comments of Stewart J. in Morlan cited above are apposite to the case at
bar.
[294] The
evidence establishes that Mrs. McConvey has returned to most of her
housekeeping duties with assistance in the more demanding aspects of it. While
the loss to Mrs. McConvey is personal it is more in the realm of
dissatisfaction at not being able to clean to the standard she did previously. Accordingly,
the loss is taken into account in the overall award for non-pecuniary damages.
[295] While the authorities on non-pecuniary damages are instructive,
awards in other cases provide a guideline only. I am mindful the nature of the
inquiry is such that these cases can serve only to provide guidelines as to the
range of damages awarded in cases with some similarities to the case at bar. What
must be undertaken is an assessment and application of the factors enumerated
above to Mrs. McConveys particular case. In this case, as in all others of
this kind, the inquiry is highly factually dependant. Thus, the quantum of any
award will turn, to a very large degree, on the plaintiffs unique
circumstances, having regard to what is fair and just in light of the nature,
extent and duration of Mrs. McConveys injuries and the impact these injuries
have had on her quality of life.
[296] Mrs. McConvey is now 49 years old. She used to be outgoing, actively
involved in a number of activities such as significant gardening, walking, golfing
skating, skiing and camping. She was also a fastidious housekeeper. Since the
accident Mrs. McConvey is far less active. She no longer goes to the family
Christmas gathering at Manning Park because of the cold and its effect on her
neck and shoulder and she no longer skis or skates as she is afraid of falling
and re-injuring herself.
[297] It is
clear that awards for non-pecuniary damages in cases of ongoing, chronic pain
vary widely, due in large part to the fact that the symptoms and effects on
each plaintiff are so variable and individual. Taking all of the factors into
account in the context of Mrs. McConveys situation and the related cases cited,
I conclude that an appropriate award is $80,000. The most important factors are
Mrs. McConveys ongoing pain symptoms that have not resolved in her neck and
left shoulder girdle and that have developed into myofascial pain syndrome, her
lower back symptoms and the continuing headaches all of which have affected her
ability to work, the quality of her sleep and have limited the intensity of the
recreational activities, particularly her passion for gardening, she is now
able to engage in as compared to what she did prior to the accident. Her life
is more restricted than before including her ability to engage in rigorous
housekeeping activities to the thorough degree she did prior to the accident.
[298] In my view,
an award of damages of $80,000 will provide appropriate compensation for Mrs.
McConveys non-pecuniary damages for pain, suffering, loss of enjoyment of life
and interference with her daily activities, including her recreational and
family pursuits. This figure includes an allowance of $10,000 on account of
Mrs. McConveys reduced capacity to perform the various domestic chores which
other family members, particularly her husband, have had to make up for.
A.
Duty to Mitigate
[299] A
plaintiff has an obligation to take all reasonable measures to reduce his or
her damages, including undergoing treatment to alleviate or cure injuries: Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234.
[300] Once the
plaintiff has proved the defendants liability for his or her injuries, the
defendant must prove that the plaintiff acted unreasonably and that reasonable
conduct would have reduced or eliminated the loss. Whether the plaintiff acted
reasonably is a factual question and it involves a consideration of all of the
circumstances: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202 [Gilbert].
[301] The defendant
bears a heavy burden in establishing a reduction in damages on the basis of
failure to mitigate. The applicable law is well-summarized in Fox v. Danis,
2005 BCSC 102 at paras. 35-37, affd 2006 BCCA 324, as follows:
[35] There is no dispute that every plaintiff has
a duty to mitigate his/her damages, and that the burden of proving a failure to
fulfil that duty rests with the defendant, the standard of proof being the
balance of probabilities: Janiak v. Ippolito, [1985] 1 S.C.R. 146.
[36] In this case, the Defendant submits that the
Plaintiff failed to mitigate her loss in that she failed to exercise as recommended
by her family doctor.
[37] To succeed in proving these submissions, the
Defendants must establish, on the balance of probabilities, that the Plaintiff
failed to undertake this recommended treatment; that by following the
recommended treatment she could have overcome or could in the future overcome
the problems; and that her refusal to take that treatment was unreasonable: Janiak
v. Ippolito, supra and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d)
131 (C.A.).
(See also Turner
v. Coblenz, 2008 BCSC 1801 at para 101; MacKenzie at paras.
260-261.)
[302] In this case, the defendant argues Mrs. McConvey has failed to take
steps to assist in her own recovery by failing to do the exercises she was
taught while attending physiotherapy treatments. Accordingly, the defendant
argues Mrs. McConveys award should be reduced for failing to mitigate her damages by not doing the exercises that she learned in
physiotherapy. The defendant argues that as a consequence of failing to
continue with the exercises from the intensive physiotherapy regime, the plaintiff
has prolonged the pain that she is experiencing in her neck, left shoulder and
lower back.
[303] The defendant relies upon Dr. Boyles evidence that the plaintiff
had received an extensive period of physiotherapy and in his medical legal
report indicates that simply walking is insufficient to alleviate the symptoms.
He opined that if Mrs. McConvey performed her therapy exercises on a daily
basis it would likely significantly diminish the occurrence of flare-ups. While
it is true that Dr. Boyle outlines in his report that Mrs. McConvey advised him
that the only exercise she did was walk, Mrs. McConvey could not recall what
she told Dr. Boyle in the assessment. I have already found that at the time of
the assessment Mrs. McConvey was very ill with the developing streptococcal
infection and as a consequence may well not know what she said in the
assessment. She gave other information contrary to her interests which was
manifestly not reliable (claiming not to have worked since the accident) and so
I am hesitant to place much weigh on her claims to Dr. Boyle.
[304] More significantly though, Mrs. McConvey was never directly
confronted with what she did in the way of continuing her physiotherapy
exercises over the years since the accident. Her evidence was that when the
intensive physiotherapy treatment was completed, she did daily physical
exercise and strength training at home. Mrs. McConvey was not asked to elaborate
on what that regime consisted of nor was she cross-examined on this aspect of
her recovery or challenged that she was directed to continue to do physiotherapy
exercises and failed to do so. Furthermore, there was no evidence that Mrs.
McConvey was directed by any medical professional to continue with any form of
therapy or exercises or that she refused to engage in such therapy.
[305] Given the
evidentiary gap on what exactly Mrs. McConvey was or was not directed to do and
what she did insofar as continuing her physiotherapy exercises are concerned, the
defendant has failed to establish on the balance of probabilities that there
was any course of exercises or treatment that Mrs. McConvey was directed to
continue. The evidence does not establish what the recommended exercises were
or if there were any exercises she was directed to continue post-physiotherapy.
Similarly the evidence does not establish that by following any such recommended
physiotherapy exercises, Mrs. McConvey could have overcome or could in the
future overcome the problems. Dr. Boyles evidence, at best, simply supports a
finding that Mrs. McConvey might have improved with continued practice of the
exercises learned in physiotherapy, but does not go so far as to support a
finding that she likely would have done so. As a result, there will not be any
deduction from Mrs. McConveys award on the basis of a failure to mitigate.
VIII.
Past Lost Income
[306] Compensation
for past loss of income or past loss of earning capacity is to be based on what
the plaintiff would have, not could have, earned but for the injury that was
sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141; M.B. v.
British Columbia, 2003 SCC 53 at para 49; and Jackson v. Jeffries,
2012 BCSC 814 at para. 85 [Jackson].
[307] The burden
of proof of actual past events is a balance of probabilities. An assessment of
loss of both past and future earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove these hypothetical
events on a balance of probabilities. The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Athey v. Leonati, at para. 27.
[308] In Dhaliwal
v. Tomelden, 2010 BCSC 612, Madam Justice Russell wrote:
[160] In Damages, Estimating Pecuniary Loss,
Vol. 1 (Aurora: Canada Law Book, December 2009) author Cara L. Brown wrote, at
1- 7:
The most important starting point for any forensic
economist is to review the plaintiffs employment and education history. It
will be this history which determines the benchmark salary…
[309] As I have
noted, Mrs. McConvey has been consistently employed her entire adult life prior
to the accident. In the four years prior to the accident she was employed in
the automotive sector first selling vehicles and then working at an automotive
private school. Her gross salary in 2008 before the accident was $3,000 per month
which works out to an hourly wage of $17.31 an hour for a 40 hour work week.
[310] Mrs.
McConveys position is that she should receive an award of $90,869.59 for past loss
of income from May 20, 2008 to the start of trial on April 23, 2012. She
acknowledges her income of $39,842.79 between October 2008 and November 2010 being
the total income from White Spot and HBC must be deducted from any award and
also acknowledges that a three week period for bereavement leave for her
brothers death must also be deducted from any calculation.
[311] The defendants
position is that the Court should not make an award for past loss of income
beyond Mrs. McConveys return to work at ATC on October 6, 2008 and that there
needs to be a deduction for a period of bereavement leave of approximately one
month in recognition of the fact that Mrs. McConvey would have been away from
work in any event dealing with the tragic and untimely death of her brother on
May 15, 2008.
[312] Mrs.
McConvey acknowledged in her evidence that she likely would have been away from
work at ATC for bereavement leave for a few weeks. In respect of the period
between the accident of May 20, 2008 and up to October 6, 2008, I find that four
weeks would have been sufficient time for bereavement leave and that will be
deducted as not related to the accident. Accordingly, the period of June 16,
2008 to October 6, 2008, represents a period of 16 weeks of past loss of income
due to the injuries from the accident. The ROE from ATC calculates Mrs.
McConveys salary bi-monthly at $1,500 for each pay period with a notation of
86.67 insurable hours per pay period. Accordingly, the gross hourly income for
this position is calculated by dividing the pay amount by the hours worked
resulting in a gross hourly income of $17.31 an hour. This represents a gross
amount of $11,078.40 for that portion of the past loss of income, that is,
income she would have earned at ATC but for the defendants negligence.
[313] According to Mrs. McConveys 2007 Income Tax Assessment she paid
$3,355.80 in taxes for a net income of $28,429 which represents a 12%
tax rate applied to her gross income. Accordingly, Mrs. McConveys net past
loss of income from June 16, 2008 to October 6, 2008 is $9,478.99.
[314] The defendant argues that past loss of income ought not to go beyond
October 6, 2008 as Mrs. McConvey left her other jobs because she did not like
them and that her departure from the White Spot and HBC had nothing to do with
the injuries she sustained in the accident.
[315] In the alternative, the defendant argues that if Mrs. McConvey
establishes she is entitled to an award for past loss of income beyond October
6, 2008 then Mrs. McConvey has failed to mitigate her damages by seeking
employment in a timely manner. In particular, the defendant notes that with the
exception of handing out resumes in the spring of 2011 Mrs. McConvey has not
provided any evidence that she made any attempts to look for work beyond that
time. Furthermore, Mrs. McConvey testified that she became seriously ill as a
result of an unrelated infection and was hospitalized in December 2011.
Accordingly, argues the defendant, Mrs. McConvey should not to be placed in a
better position by receiving an award for past loss of income over a period
time in which she was prevented from working due to an illness unrelated to the
accident.
[316] I have
found that although Mrs. McConveys lay off from ATC on October 6, 2008 was not
directly due to the injuries sustained in the accident, there nevertheless is a
causal link. I have found that but for the accident, Mrs. McConvey would have
continued to be employed at ATC, or would have found alternate comparable employment
far more easily if laid off, had she not been injured in the accident. I accepted
and have found that the continuing difficulty with her injuries caused her to
leave her employment with both the White Spot and HBC.
[317] I am
satisfied that Mrs. McConvey is entitled to damages for past loss of income from
October 6, 2008 up to April 21, 2011 when she obtained a medical note from Dr.
Meek certifying she was able to return to work. However, Mrs. McConveys
evidence fails to establish what further steps she took for finding employment
after that time, apart from sending out some resumes. By the fall of 2011 she
was in no condition to look for employment given her developing streptococcal
infection. There is a complete absence of evidence as to any efforts made by
Mrs. McConvey in respect of looking for employment once she recovered from that
illness. She has failed to establish entitlement to an award for past loss of
income from the period of April 21, 2011 to the time of trial.
[318] Canada
Revenue documents in evidence [Ex. #5, Tabs 20 through 23] establish Mrs.
McConveys employment income between 2005 and 2010 to be the following:
Year | Net Income |
2005 | $20,909 |
2006 | $26,385 |
2007 | $28,429 |
2008 | $26,411 (including $6,525 for employment insurance benefits) |
2009 | $18,822 |
2010 | $22,792 (including $3,600 for employment insurance benefits) |
[319] The year
before the accident, 2007, was her best income earning year with the two
preceding years demonstrating her income level rising. Mrs. McConvey testified that
her income in 2005 related to her employment with Barnes and Wheaton Auto
Dealership and her income for 2006 and 2007 was from her employment with ATC. Mrs.
McConveys 2008 income included both her five months with ATC before the
accident and her limited employment with White Spot Restaurant from October
through December 2008. Employment income for 2009 related to her employment
with White Spot Restaurant and then with HBC. Income for 2010 was from her
employment with HBC.
[320] The
evidence of Mrs. McConveys hourly rate while at HBC is confusing. One ROE
issued on September 9, 2010 establishes that her hourly rate was approximately
$8.71. However a subsequent ROE issued by HBC on December 20, 2010 establishes
an hourly rate of $17.13. I have elected to rely upon the latter document
assuming the latter ROE represents an amendment to the previous one.
[321] But for
the accident, I find Mrs. McConvey would have either remained at ATC earning a
gross salary of at least $3,000 a month or found employment elsewhere at a
comparable rate. Indeed she did find employment elsewhere but was unable to
continue it at White Spot or HBC as the work aggravated her injuries and she
had further medical complications. Even if she had been terminated by ATC at
some point in the future, without the accident, she likely would have earned
more than minimum wage, as her employment with Barnes Wheaton and ATC establishes,
as she would have been far more competitive and better suited to remain at HBC.
Accordingly, I find that but for the defendants negligence Mrs. McConvey would
have continued to earn full-time employment income in the range of $17 an hour.
[322] Mrs.
McConvey argues that from October 6, 2008 to April 23, 2012 represents 184.3
work weeks she would have been paid for on a full-time basis but for the
accident. The evidence, however, does not support an award for past loss of
income beyond April 21, 2011. Accordingly, the period to calculate past loss of
income up to her ability to return to work on April 21, 2011 is 132.3 work weeks.
[323] Applying a
gross figure of $17 an hour to a full time position (40 hours/week) results in
a gross salary of $680 a week. But for the accident, Mrs. McConvey would have
been paid on a full-time basis up to April 21, 2011 representing a period of
132.3 weeks of employment income. The gross amount she would have earned in
this period of time is assessed at $89,964. Accordingly her overall gross
earnings between June 16, 2008 and April 21, 2011 would likely have been in the
order of $101,042.40 [$89,964 + $11,078.40]. Deducting the amount of $39,842.79
earned while at White Spot and HBC between October 15, 2008 and November 2010
results in an actual gross loss of income from June 16, 2008 until April 21,
2011 of $61,199.61.
[324] Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a plaintiff
is entitled to recover damages for only her past net income loss. This means
that in the ordinary course the court must deduct the amount of income tax
payable from lost gross earnings: Hudniuk v. Warkentin, 2003 BCSC 62 at
para. 22; Jackson at para. 86.
[325] As noted
earlier, Mrs. McConveys highest income year prior to the accident was 2007 and
her income tax return documents establish a tax rate of about 12%. Accordingly
her net past loss of income is calculated at $53,855.66.
[326] Mrs.
McConvey also includes in her claim for past loss of income the CPP
contributions she would have received but for being injured in the accident. While
at ATC her employer contributed approximately 4.43% of her gross income to CPP.
Applying that rate to the actual gross loss of income until April 21, 2011 of
$61,199.61 results in a further $2,711.14.
[327] Taking the
above amounts into consideration, there is a net amount payable to Mrs.
McConvey of $56,566.80 [$53,855.66 + $2,711.14] for past loss of net income and
loss of CPP benefits.
IX.
Loss of Future Earning Capacity
[328] The principle that governs the assessment of an award for loss of future
income and earning capacity is that, insofar as possible, the plaintiff should
be restored to the position she would have been in if not for the injuries
caused by the defendants negligence: Lines v. Gordon, 2009 BCCA 106, at
para. 185; Falati v. Smith, 2010 BCSC 465 [Falati], at para. 38.
[329] Insofar as
assessing a claim for loss of future earning capacity is
concerned, two key questions arise: (1) has the plaintiffs earning capacity
been impaired to any degree by her injuries and, if so (2) what
compensation should be awarded for the resulting financial harm that will
accrue over time? Fox v. Danis,
2005 BCSC 102, at para 91 [Fox]; Kuskis at para. 151; Jackson
at para. 106. Compensation must be made for the loss of
earning capacity and not for the loss of earnings: Andrews, MacKenzie at
para 274; Jackson at para. 106.
[330] The
assessment of loss must be based on the evidence, and not an application of a
purely mathematical calculation. Therefore, the assessment of damages is a
matter of judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at
para. 18 [Rosvold].
[331] The
appropriate means of assessment will vary from case to case: Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 [Brown]; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260 [Pallos]; Pett. v.
Pett, 2009 BCCA 232 [Pett].
[332] The
essential task of the Court is to compare the likely future of the plaintiffs
working life if the accident had not happened with the plaintiffs likely
future working life after the accident has occurred: Gregory v. Insurance
Corp. of British Columbia, 2011 BCCA 144 at para. 32.
[333] There are
two possible approaches to assessment of loss of future earning capacity: the
earnings approach from Pallos and Steenblok v. Funk (1990), 46
B.C.L.R. (2d) 133 (C.A.); and the capital asset approach as set out in Brown.
Both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way: Perren
v. Lalari, 2010 BCCA 140 at para. 32 [Perren].
[334] The
earnings approach involves a form of math-oriented methodology such as (i)
postulating a minimum annual income loss for the plaintiffs remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value or (ii) awarding the plaintiffs entire annual
income for a year or two: Pallos; Gilbert at para. 233.
[335] The
capital asset approach involves considering factors such as (i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; (ii) is less marketable or attractive as a potential
employee; (iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and (iv) is less valuable to herself as a
person capable of earning income in a competitive labour market: Brown at
para. 8; Gilbert at para. 233; Kuskis at para. 152; Rosvold at
para. 10.
[336] In Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), at
59 Madam Justice Southin, writing for the Court of Appeal, stated:
Because it is impairment that is being redressed, even
a plaintiff who is apparently going to be able to earn as much as he could have
earned if not injured or who, with retraining, on the balance of probabilities
will be able to do so, is entitled to some compensations for the impairment. He
is entitled to it because for the rest of his life some occupations will be
closed to him and it is impossible to say that over his working life the
impairment will not harm his income earning ability.
[337] The jurisprudence from the Court of Appeal establishes that a
plaintiff must demonstrate impairment of her earning capacity and a real and
substantial possibility the diminishment in earning capacity will result in a
pecuniary loss. If the plaintiff discharges this requirement, she may prove the
quantification of the loss of future earning capacity either on an earnings
approach or a capital asset approach: Perren at para. 32.
[338] In essence, however, in making an assessment under this head
of damages, what the court must endeavour to quantify is the financial harm
accruing to the plaintiff over the course of her working career: Pett at
para. 19.
[339] In Reilly v. Lynn, 2003 BCCA 49, at para 101, Mr.
Justice Low, writing for the majority, summarized the relevant principles in
assessing damages for loss of future earning capacity, stating:
[101] The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is
not the end of the inquiry; the overall fairness and reasonableness of the
award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d)
158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79. In adjusting for contingencies, the remarks
of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra,
at 253, are a useful guide:
First, in many respects, these contingencies implicitly
are already contained in an assessment of the projected average level of
earnings of the injured person, for one must assume that this figure is a
projection with respect to the real world of work, vicissitudes and all.
Second, not all contingencies are adverse … Finally, in modern society there
are many public and private schemes which cushion the individual against
adverse contingencies. Clearly, the percentage deduction which is proper will
depend on the facts of the individual case, particularly the nature of the
plaintiff’s occupation, but generally it will be small …
[340] In Bedwell v. McGill, 2008 BCCA 6, at para. 53, the Court of
Appeal clarified the issue of proof, holding it is necessary for a plaintiff to
prove a substantial possibility of a future event leading to an income loss. The
plaintiff is not required to prove this loss on a balance of probabilities (see
also Steward v. Berezan, 2007 BCCA 150, at para. 17). However, there
needs to be some cogent evidence to trigger the Brown considerations: Marcelino
v. Francesutti, 2002 BCSC 1711, at para. 57; Carvalho v. Angotti,
2007 BCSC 1760, at para. 59. In Moore v. Cabral et al., 2006 BCSC 920,
at para. 78, Madam Justice MacKenzie (as she then was) stated that ongoing
symptoms alone do not mandate an award for loss of future earning capacity.
[341] To quantify a loss of earning capacity, the court conducts an
assessment, based on the evidence, rather than applying a purely mathematical
calculation: Rosvold at para. 11; Kuskis at para. 153; Durand
v. Bolt, 2007 BCSC 480 at para. 81. For assessment purposes, income earning
capacity is viewed as a capital asset where all relevant negative and positive
contingencies must be considered: Kuskis at para 154; Fox at
paras. 92, 102-103. In addition, the overall fairness and reasonableness of the
award must also be taken into account: Rosvold at para. 11.
[342] In terms of relevant contingencies that need to be considered, they
may be general or specific in nature. Relevant contingencies can include such
things as the potential for improvements in health, opportunities for
advancement, decline in the economy and loss of employment, as well as the
usual chances and hazards of life: Djukic v. Hahn, 2006 BCSC 154, at
para. 105; Kuskis at para. 155.
[343] Mrs. McConvey
seeks to be compensated for the loss of a capital asset and relies upon Erickson
v. Bowie, 2007 BCSC 1465 [Erickson] to assess the future loss on a
mathematical footing by suggesting that resort to Appendix E of the Civil Jury
Instructions (CIVJI) was relied upon to produce the award in that case.
However, a careful reading of the judgment in Erickson reveals that, in
that case, estimates were advanced as to the present value of the plaintiffs
loss of his ability to fish and earn income from fishing in the black cod
fishery – either with a licence or as a deckhand for a commercial fisherman – following
permanent injuries in a motor vehicle accident. The case involved a 50-year old
man who had been a fisherman. He suffered a fractured sternum and vertebra in
his lumbar spine. Due to his physical injuries he was unable to return to
fishing as a career. The Court found that the injuries had dramatically
affected his work, life and his recreational activities.
[344] In Erickson,
counsel provided Madam Justice Brown with various calculations for the loss
of future earning claim based on the present values of the plaintiffs income. In
the end, however, Brown J. noted that an overly mathematical approach to
assessing damages for loss of capacity has been eschewed in the jurisprudence: Erickson
at para. 48 & 50-52. Brown J. did employ the present value Appendix to CIVJI
to assist in the assessment but in the end determined that a different
amount should be awarded after taking into account various positive and negative
contingencies that the Appendix failed to include in its mandated discount rate
and multiplier table.
[345] Applying the
present value approach, plaintiffs counsel selects minimum wage on a part-time
basis to calculate a $20,716.80 annual difference between what Mrs. McConvey
could have earned in the absence of the accident at $17 an hour on a full-time
40 hour work week (net income of approximately $31,116.80) and what she might
be relegated to at minimum wage of $10 an hour on a part-time 20 hour work week
(a calculated annual income of $10,400). From this counsel calculates 16 more
years of work life to earn an income (to retirement at 65 years of age) and
applying the Appendix multiplier arrives at a calculation of $270,457.82 as the
present value of Mrs. McConveys future loss of capacity.
[346] The
approach advanced by plaintiffs counsel is an entirely mathematical approach
that fails to consider or make any adjustment for positive or negative
contingencies. Moreover it places Mrs. McConvey at a future wage earning rate
of only minimum wage as contrasted with her previous employment at $17 an hour.
[347] The defendants
position is that Mrs. McConvey should not receive any award under this head of
damages because there is no substantial possibility that her injuries will lead
to a loss of income in the future. The defendant argues in the alternative that
if the plaintiff has established she is entitled to an award under this head of
damages then it should be in a reduced amount recognizing that she is still capable
of being employed in some part-time capacity.
[348] Based on
the evidence of Dr. Shuckett and Mr. Shew, which I have accepted, I conclude
that Mrs. McConvey has established a sound basis that she is entitled to
damages for loss of future earning capacity based on the fact that she is
restricted in her physical abilities in terms of vertical and horizontal
reaching, bending, stooping, squatting and lifting and also limited in her
capacity for sitting and standing for prolonged periods of time. Mr. Shew opines
that Mrs. McConvey could be gainfully but not competitively employed and that
she is best suited for part-time work in the sedentary to light level work
capacity. However, accommodations and modifications would be required if she is
to return to gainful employment. Dr. Shuckett opined that Mrs. McConvey is
capable of returning to the workforce, at least in some regular part-time
capacity. And, on April 21, 2011, Mrs. McConvey received medical clearance to
return to work.
[349] In applying the relevant legal principles and gazing "deeply
into the crystal ball" as described by the Court in Andrews, I am
left to make an assessment as it relates to Mrs. McConveys injuries to her neck, left shoulder and lower back and the ongoing myofascial
pain syndrome that has developed from the neck and shoulder injuries. Taking
into account all of the evidence and the many future positive and
negative contingencies that may arise, including the prospect
Mrs. McConveys health and symptoms might make a modest improvement through
further physiotherapy and improvement in her fitness level and that she will
continue to work in an area of the service or retail industry but one which is less
physically demanding and will require less heavy lifting than she did after the
accident at White Spot and HBC, I conclude Mrs. McConvey has established
the real and substantial possibility of a future event leading to an income
loss as a result of the injuries she sustained in the accident and the ongoing
pain symptoms she experiences to this day.
[350] Because of
the many contingencies present in this case, including that Mrs. McConvey may
well improve in terms of her pain and physical restrictions with physiotherapy
and exercise, that the resolution of the litigation may well have a positive
effect on her dealing with the symptoms, stress and anxiety and the negative
contingencies of longer periods of unemployment, underemployment, early
retirement, illness or early death, I conclude it is appropriate to use the capital
asset approach to the assessment of Mrs. McConveys future wage loss.
[351] I conclude
that, as a result of the accident, there is a substantial possibility that Mrs.
McConveys injuries will lead to a loss of income in the future. I find Mrs. McConvey
has been rendered less capable overall of earning income from all types of
employment, she is less marketable or attractive as a potential employee, she
has lost the ability to take advantage of all job opportunities that might
otherwise have been open to her and she is less valuable to herself as a person
capable of earning an income in a competitive labour market: Brown at
para. 8.
[352] Assessing this loss as best as I am able, taking into account all of
the evidence and considering the future positive and negative contingencies
that may arise, as well as balancing all of the factors as best I can, and
bearing in mind the need to be fair and reasonable to both sides, I assess the
total of Mrs. McConveys loss of future earning capacity at $85,000.
X.
Cost of Future Care
[353] The legal
principles governing the determination of when a plaintiff is entitled to
compensation for the cost of future care is that such an award is based on what
is reasonably necessary to restore her to her pre-accident condition in so far
as that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiffs mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) [Milina]; Williams
(Guardian ad litem of) v. Low, [2000] B.C.J. No. 408 (S.C.); Spehar
(Guardian ad litem of) v. Beazley, [2002] B.C.J. No 1718 (S.C.); Jackson
at para. 117; Russell v. Parks, 2012 BCSC 1128 at para. 96.
[354] The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care; and (2) the claims must be reasonable: Milina at p.
84.
[355] In Izony v. Weidlich, 2006 BCSC 1315 [Izony] at para. 70, Mr.
Justice Masuhara addressed cost of future care awards as follows:
70. At the outset, I note that the cost of
future care award is "by its nature notional and not a precise accounting
exercise to determine the strict minimum" required by the plaintiff: Strachan
(Guardian ad Litem of) v. Reynolds, 2006 BCSC 362. In Courdin v. Meyers
(2005), 37 B.C.L.R. (4th) 222, 2005 BCCA 91 at [paragraph] 34, our Court of
Appeal endorsed the following approach to dealing with the many imponderable
factors and contingencies in assessing damages in this category:
Damages for cost of future care are a matter of
prediction. No one knows the future. Yet the rule that damages must be assessed
once and for all at the time of trial (subject to modification on appeal)
requires courts to peer into the future and fix the damages for future care as
best they can. In doing so, courts rely on the evidence as to what care is
likely to be in the injured person’s best interest. Then they calculate the
present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates. (Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R.
205, 2005 SCC 9 at [paragraph] 21.)
[356] The award
of damages is thus a matter of prediction as to what will happen in future. Future
care costs must be justified both because they are medically necessary and they
are likely to be incurred by the plaintiff: Gilbert at para. 251. If a
plaintiff has not used a particular item or service in the past it may be
inappropriate to include its cost in a future care award: Izony at para.
74; MacKenzie at para. 323.
[357] The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiffs
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert at
para. 253.
[358] An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para.
21.
[359] The applicable principles to the claim for the cost of future care
were not disputed in this case. The provision of adequate future care is of
primary importance in assessing damages for serious injury, and it must be
based on what is reasonably necessary to promote the mental and physical health
of the plaintiff.
[360] Mrs
McConvey seeks an award of $12,258.17 for cost of future care to cover a number
of items that Mr. Shew recommended in his report [Ex. #5, Tab 4, pp. 6 -8].
[361] The future
care claims advanced by Mrs. McConvey with respect to the recommendations of
Mr. Shew are:
Physiotherapist, Kinesiologist,
Travel and Gym Expenses:
a) An initial bout of 5 physiotherapy
sessions: $280.00
b) A portable TENS unit estimated at: $224.00
c) Further physiotherapy for an initial 8
weeks: $896.00
d) Kinesiologist/Exercise Therapist (20
sessions): $1,120.00
e) Kinesiologist/Exercise Therapist travel
time: $250.00
(10hrs.
x $25/hr)
f) Kinesiologist/Exercise Therapist travel
expense: $180.00
(20
x 20 km x .45/ km)
g) Initial gym fitness membership for
Kinesiologist: $84.00
h) Yearly gym membership: $5,261.17
($403.00/yr.
@16 yrs. x present value multiplier of 16.055)
Vocation and Ergonomic
Modifications:
i) Vocational Assessment &
Counselling: $400.00
(4
hrs x $100/hr)
j) Ergonomic Assessment, 2.5 hours: $287.50
(2.5
hrs x $115/hr)
k) Ergonomic Assessment O/T travel time: $57.50
(1
hr x $57.50/hr)
l) Ergonomic Assessment O/T travel
expense: $18.00
(2
x 20km x $0.45/ km.)
Sub Total: $9,058.17
[362] Dr.
Shuckett also recommended in her report that Mrs. McConvey undertake a trial of
massage therapy and physiotherapy with a TENS machine [Ex. #3, p. 12].
[363] In
addition, Dr. Shuckett recommended that Mrs. McConvey receive Botox injections
in the left neck and shoulder girdle area. Based on Dr. Shucketts
recommendation, Mrs. McConvey claims for two years of Botox injections in the
amount of $3,200.
[364] Collectively
the future care cost claims advanced by Mrs. McConvey based on the
recommendations made by Mr. Shew and Dr. Shuckett total $12,258.17.
[365] The
defendant argues that the evidence does not support the award of such an amount
and that none of the modalities of treatment suggested by the experts are
warranted in the circumstances. Dr. Boyle was of the opinion that self-administered
therapy would be sufficient for future treatment and management of any
flare-ups.
[366] In the
alternative, the defendant submits that if there is to be an award for cost of
future care it should not include an award of an annual gym membership for 16
years (itemized by plaintiffs counsel at $5,261.17).
[367] In this
case, Mrs. McConvey provided little to no evidence as to whether she was
amenable to the recommendations of either Mr. Shew or Dr. Shuckett although
insofar as physiotherapy is concerned it is likely that she would continue with
this modality given her resort to it in the past.
[368] Moreover,
there was no evidence from Mrs. McConvey that she had used either a gym
membership in the past or a TENS machine or that she would do so in the future.
Although there is no evidence as to Botox injections having been done in the
past, it is apparent from Dr. Meek that trigger point injections have been
employed to assist in relief for her ongoing shoulder pain. Botox injections
may well also assist in further treatment and alleviation of the pain symptoms.
[369] In the
circumstances, based on my finding that Mrs. McConvey still experiences pain
related to the soft tissue injuries from the accident, predominantly in her
left shoulder and neck and to a lesser extent in her lower back, I accept that
all of the recommended treatments and assessments, with the exception of the TENS
machine and the gym membership for an extended period of time, are medically
necessary, likely to be incurred by Mrs. McConvey, and reasonable in the
circumstances. Allowance for a one year membership at a gym (estimated at $403)
to facilitate rehabilitation sessions with a Kinesiologist should be sufficient
in the circumstances. Thereafter, Mrs. McConvey should have the skills and
knowledge base from a year of such training to carry forward on her own. Accordingly,
I conclude that the cost of future care award for Mrs. McConvey should be set
at $7,176.
XI.
Special Damages
[370] As Mr.
Justice Greyell noted in Jackson:
[126] It is well established that an injured person
is entitled to recover the reasonable out-of-pocket expenses they incurred as a
result of an accident. This is grounded in the fundamental governing principle
that an injured person is to be restored to the position he or she would have
been in had the accident not occurred: see Jamie Cassels & Elizabeth
Adjin-Tettey, Remedies: The Law of Damages, 2 ed. (Toronto: Irwin Law
Inc., 2008) at 111-112, 119-120; Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at 78 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).
[371] In the
case at bar, the parties agree that Mrs. McConvey is entitled to an award of $1,294.13
for special damages. This represents the amount paid for the ambulance invoice
for the accident, medications since the accident, physiotherapy treatments,
doctors notes and the other items listed in the table of special damages found
in Ex #5 at Tab 11. Accordingly, I allow Mrs. McConveys claim for special damages
in the amount of $1,294.13.
XII.
Summary
[372] In
summary, Ms. McConvey is entitled to $230,036.93 in damages consisting of the
following:
Non-Pecuniary Damages | $80,000.00 |
Past Net Loss of Income | $56,566.80 |
Loss of Future Earning Capacity | $85,000.00 |
Cost of Future Care | $7,176.00 |
Special Damages | $1,294.13 |
Total | $230,036.93 |
[373]
Mrs. McConvey is also entitled to pre-judgment interest at the
prevailing rate and costs, unless the parties seek to make further submissions
on the issue, in which case notice must be given to the Court within 30 days of
the filing of this judgment.
Ker J.
[1]
Described as pustular scaling lesions all over her body for the past 2 months
in the Peace Arch Hospital Consultation Report of December 23, 2011 [Ex. #6,
Tab 23, p. 2].