IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Fontaine v. Van Kampen, |
| 2013 BCSC 1702 |
Date: 20130917
Docket: 42421
Registry:
Kamloops
Between:
Lacey Jean Fontaine
Plaintiff
And
Virginia Van Kampen
and Serena Lynn Hazel
Defendants
Before:
The Honourable Madam Justice Ballance
Reasons for Judgment
Counsel for the Plaintiff: | J.M. Hogg, Q.C. |
Counsel for the Defendants: | T.J. Decker |
Place and Date of Trial: | Kamloops, B.C. October 15-25, |
Place and Date of Judgment: | Kamloops, B.C. September 17, |
TABLE
OF CONTENTS
· Pre-Accident Medical Appointments
· The Accident September 2, 2007
· Drs. Bernard Nwaka and Wilhelm Meerholz
· Physiotherapy Treatments at the Blackgold
Clinic 2012
· Additional Evidence of Family Members
· Cost of Future Care and Loss of
Housekeeping Capacity
2. Massage/Chiropractic
Therapy
· Conclusions about Ms. Fontaines Cost
of Future Care
2. Massage
and Chiropractic Treatment
5. Remaining
Cost of Future Care Items
INTRODUCTION
[1]
This proceeding arises from a motor vehicle accident that occurred on September 2,
2007 in Kamloops, British Columbia (the Accident). Liability for the
Accident has been admitted.
[2]
The plaintiff, Lacey Fontaine, asserts that, among other things, the
Accident caused the activation of a previously asymptomatic degenerative disc
condition that has led to chronic low back pain. She contends that she will likely
be plagued by the pain and associated functional limitation throughout the
remainder of her life which, given that she is only in her early 20s, could
easily encompass several decades. Ms. Fontaine claims an award for
special damages, non-pecuniary loss, future loss of earning capacity and future
cost of care. The latter head of damages is the largest and most contentious.
BACKGROUND
·
Early Passion for Hockey
[3]
Ms. Fontaine was an all-round athlete in high school. She played
many sports, excelling at ice hockey in particular.
[4]
Brian Silverstone coached Ms. Fontaine and gave her private lessons
during the time she played hockey in Kamloops. He credibly spoke to her talent
as a hockey player and her commitment to skill development. He appreciated her
positive gung-ho attitude and described her as a natural leader, often acting
as team captain or assistant captain.
[5]
In his coaching role, Mr. Silverstone would scrutinize the players
movements and how they transferred their weight while on the ice. He was
confident that he could detect the presence of an injury or pain in his players
100% of the time. As Ms. Fontaines private coach, he challenged her in
every aspect of the game. Throughout their association, he saw no indication of
her having a low back problem or, indeed, any type of injury or physical
limitation.
·
Hockey Schools
[6]
Impressed by the intensive hockey program offered by Warner Hockey
School (Warner) in Lethbridge, Alberta, Ms. Fontaine tried out for and
was accepted for grades 11 and 12. There she met Kayla Savich, a student and
sister hockey player. Ms. Fontaine and Ms. Savich both convincingly
testified that while attending Warner, Ms. Savich would drive members of
their team, including Ms. Fontaine, to Lethbridge every Thursday evening
to receive adjustments from a local chiropractor. I find that the
sessions were encouraged by their coach with the objective of keeping the
players limber and thereby improving their game performance, and not to treat
an injury per se. The girls would go into the treatment room together
and, in an assembly line-like fashion, the chiropractor would spend approximately
five minutes adjusting each of them. Ms. Fontaines evidence, supported
by Ms. Savichs testimony, was that she did not sustain an injury to her
back while at Warner, nor did she have those chiropractic treatments in order
to address back problems of any kind. I find that while attending Warner Ms. Fontaine
underwent chiropractic adjustments as a matter of routine to enhance her
athletic performance and not to address a particular injury or any ongoing
spinal symptoms.
[7]
Ms. Fontaines father, Eugene Fontaine, himself a veteran hockey
player, drove his daughter to the Kamloops rink five days a week and, when she
attended Warner, often travelled to Lethbridge to watch her play. He credibly
supported the testimony of his daughter and Mr. Silverstone to the effect
that before the Accident, Ms. Fontaine experienced no problems or
restrictions with respect to her back or any other part of her body.
[8]
Ms. Fontaine completed high school at Warner in June 2006. Her
grades in physical education and some courses related to career studies were
solid but she otherwise achieved about a C letter grade average. When she
returned to Kamloops after graduation, she was hired by Mr. Silverstone
for a period of time to assist him running hockey drills and instructing
players.
[9]
While at Warner, Ms. Fontaine had been scouted by a hockey coach
for the Robert Morris University (RMU) in Chicago, Illinois. She was offered
a full ride college scholarship and enrolled in the fall of 2006. Her
friend, Ms. Savich, pursued her hockey career at a different college.
[10]
Ms. Fontaine majored in business administration and achieved
respectable grades in three of her classes but failed the fourth. She left RMU
in December 2006, before completion of a full academic year. She
explained that she had returned home early because the distance prevented her
parents from visiting and she had become terribly homesick.
[11]
Mr. Fontaine elaborated that his daughter had lived away from home
since age 15 and she had found the prolonged separation that fall to be
especially wearing. Although she was prepared to stick out the spring semester,
with her fathers encouragement, she came home instead.
[12]
Ms. Fontaine was adamant that she had not left RMU because she had
sustained an injury. There are no medical records or other cogent evidence to
the contrary, and I accept Ms. Fontaines testimony on that point, which
was credibly corroborated by her father. I also accept her testimony that
she received no chiropractic treatments while attending RMU, other than a
possible adjustment by her aunt, who is a chiropractor.
·
Return to Kamloops
[13]
Having resettled in Kamloops, Ms. Fontaine began attending Thompson
Rivers University (TRU) in January 2007, working towards a bachelor
degree in business administration.
[14]
Ms. Fontaine and Aaron Kaliszewski moved in the same peer group and
periodically socialized while attending high school in Kamloops. They
reconnected shortly after Ms. Fontaine returned to Kamloops and eventually
began dating in the spring of 2007. The couple led an athletic and active
lifestyle before the Accident. They routinely took Ms. Fontaines dog on
long walks and runs, swam, played team sports together and worked out
regularly. Mr. Kaliszewski recalled how impressed he had been when Ms. Fontaine,
who has a petite frame, demonstrated her ability to leg-press 575 to 600 pounds
with no difficulty.
·
Pre-Accident Medical Appointments
Dr. Gordon Besse
[15]
When Ms. Fontaine was eleven years old, her mother took her to see Dr. Besse,
a chiropractor in Kamloops. Between her first visit on September 20, 1999
and her last one on March 24, 2003, she had 17 chiropractic treatments
from him. Ms. Fontaine had no independent recollection of attending those
sessions or why she did so.
[16]
Dr. Besses intake form shows that the reason given by Ms. Fontaine
for her initial consult was her sore neck. He testified that until roughly
mid-November 2001, the majority of Ms. Fontaines symptoms related to
headaches and her cervical and thoracic spine. An exception was on August 2,
2001, where he charted her complaint of a sharp pain in her low back that
occurred when she got up off the ice in respect of which he assessed flexion
antalgia. At trial, he testified that the following day she was much better
and her low back pain with antalgia did not return. During Ms. Fontaines
final five sessions, Dr. Besse treated mostly her hip and full spine.
[17]
Dr. Besse explained that it was his practice to check a patients
entire spine and to adjust it when it felt tight as a preventative measure even
though it may be otherwise symptom-free. He confirmed that he would frequently
manipulate Ms. Fontaines spine in areas where she had not complained of any
symptoms and record those spinal adjustments in her chart.
Dr. Isabel Barnard
[18]
Dr. Barnard assumed the role of Ms. Fontaines family doctor
in March 2003. Between then and the Accident, she saw her approximately
20 times. At none of those appointments, including the complete physical
examination she performed on August 4, 2004, did Ms. Fontaine
complain of neck or back problems. The entries in Dr. Barnards chart are
consistent with Ms. Fontaines evidence that before the Accident, she
experienced no headaches or spinal problems that required medical attention.
Northshore Treatment Center
[19]
Ms. Fontaine was also seen twice by physicians at a local walk-in
clinic prior to the Accident. The first visit on March 18, 2007 was for a
sinus problem and the second time (July 3, 2007) she complained of a sore
throat and cough.
·
The Accident September 2, 2007
[20]
According to Ms. Fontaine, while driving her car along a highway in
Kamloops she noticed that the vehicle ahead was darting in and out of the two
lanes of traffic and making crazy manoeuvres. She claims that she pulled up
directly behind the vehicle as they both turned onto and crossed the Halston
Bridge and then continued northbound along Westsyde Road. Ms. Fontaine was
very familiar with the route.
[21]
Ms. Fontaine drove at or near the posted speed in the outside lane
along a straight stretch of Westsyde Road. The car she had noticed earlier was
travelling in the inside lane. She testified that ahead of that car and directly
in its path was a stopped vehicle with its left turn signal activated. She recalled
wondering why the car in the inside lane did not appear to be slowing down given
the presence of the stopped left-turning vehicle, and became worried that it
might end up veering into her lane. Her fear was realized when that car driven
by the defendant, Virginia Van Kampen, now approximately one car length behind
the left turning driver, suddenly swung into Ms. Fontaines lane.
[22]
Ms. Fontaine testified that she took evasive action but was unable
to avoid the collision. The impact felt more like a hard jolt than a mild
sideswipe to her. She stated that her car was pushed onto the outside curb of her
lane. Her recollection was that the curb was approximately 1‑1/2 to 2
inches in height.
[23]
Ms. Fontaine thought that all four tires of her vehicle climbed the
curb. However, she candidly admitted that she could not be certain of that and
allowed for the possibility that only one or two of her tires may have struck
and mounted the curb. In any event, she testified that when her tire or tires
contacted the curb, her car stopped briefly before she righted it and continued
in the same direction along Westsyde Road. She noticed Ms. Van Kampens vehicle,
which was now in front of hers, turn left off Westsyde Road a very short
distance from where the collision occurred, and proceed for a few meters before
coming to a stop. Ms. Fontaine followed and did likewise.
[24]
Ms. Fontaine claimed that neither she nor Ms. Van Kampen or
her passenger left their vehicles after pulling over. She recalled positioning
the drivers side of her vehicle alongside the front passenger side of Ms. Van
Kampens car and exchanging pertinent information through their open windows,
while remaining seated. The parties were able to drive away; however, Ms. Fontaines
car was ultimately written off.
[25]
Ms. Van Kampen recalled the pertinent events leading up to the
Accident differently. She testified that she was driving her car along
Westsyde Road with her female companion, Koby Hughes, in the front passenger
seat on their way to a dirt bike park. It was raining and the roads were slick.
[26]
According to Ms. Van Kampen, as she proceeded along Westsyde
Road the van directly ahead of her suddenly slammed on its brakes in the middle
of an intersection and then unexpectedly executed a left turn. She would not
agree that the van had been stopped in her lane of travel with its signal on,
indicating an intention to turn left. Ms. Van Kampen stated that she
applied her brakes in response to the vans abrupt stop, and that her
passenger, Ms. Hughes surprised her by grabbing the steering wheel and
jerking it hard to the right causing it to bump into Ms. Fontaines
vehicle. She says she quickly regained control of her car and pulled it back
into her lane.
[27]
Ms. Van Kampen testified that after the sideswipe, her car
ended up positioned ahead of Ms. Fontaines, which she was able to see in
her peripheral vision, and did not observe it striking the curb. Her evidence
is that both she and Ms. Fontaine continued to drive for about one block
and then turned left onto a side road. It was her recollection that they both
parked and exited their vehicles to survey the damage and exchange their
insurance papers.
[28]
Ms. Van Kampen denied speeding or driving in an erratic
fashion. She also unconvincingly denied crossing the Halston Bridge prior to
connecting to Westsyde Road. Ms. Fontaines counsel drew her attention to
the evidence she had given at her examination for discovery approximately five
weeks earlier:
Q Ok. So, were looking here at — where had
you come from?
A I was coming from Kamloops.
Q Well, you were actually in Kamloops. Where
had you come from? Had you come over the Halston Bridge?
A Yes.
[29]
When confronted with the obvious inconsistency, Ms. Van Kampen
professed that she must have gotten mixed up at her discovery. However, she
went on to admit that there are only two main bridges in Kamloops: the
Overlander and the Halston, which are separated by several kilometres and are
easily distinguishable one from the other.
[30]
In cross-examination it was suggested to Ms. Van Kampen that
she had been inattentive while travelling along Westsyde Road and that it was
only after Ms. Hughes jerked the steering wheel to the right that she became
aware of the dangerous situation ahead and jammed on her brakes. In refuting
that suggestion, Ms. Van Kampen insisted that she had applied her
brakes before Ms. Hughes took hold of the wheel. Attempting to explain Ms. Hughess
actions, she claimed that Ms. Hughes, acting like a fool, had just
grabbed the wheel for no reason and subsequently apologized a hundred times
for doing so. Ms. Hughes did not testify. Ms. Van Kampens testimony
on this matter was highly implausible.
[31]
Although neither party was able to reliably recount all of the details
of the Accident, Ms. Fontaine did not give implausible or internally inconsistent
evidence, as had Ms. Van Kampen. In the end, I have greater
confidence in the accuracy of Ms. Fontaines version of the events and
prefer it over Ms. Van Kampens to the extent of any discrepancy. Specifically,
I find that upon being sideswiped by Ms. Van Kampens car, one
or two of the tires of Ms. Fontaines vehicle mounted the small curb that
ran along the outside of her lane, causing her vehicle to pause momentarily
before returning to its path of travel.
[32]
The defendants depict the Accident as a minor collision. In support of
that characterization they tendered the expert opinion of Gerald Sdoutz, a
mechanical engineer with expertise in investigating and reconstructing motor
vehicle collisions. His analysis focused on the severity of the contact
between the parties vehicles and of Ms. Fontaines impact against the
curb. Mr. Sdoutz also testified at trial.
[33]
As a means of quantifying the nature of Ms. Fontaines experience inside
her car during the Accident, Mr. Sdoutz relied on a measurement known the vibration
dose value (VDV), which is a calculation based on the acceleration time
history of the event. Drawing on a comparison of photographs and descriptions
of damage inflicted on test vehicles with the damage sustained to the vehicles
in the Accident, and the findings of another study that measured the overall
VDVs for a small car driving normally on city roads, he concluded that Ms. Fontaines
experience upon impact would have likely been similar to the typical jostling
of an average car on a city street, and less like the kind of jostle produced
by a tractor on a farm road.
[34]
In sum, Mr. Sdoutzs thinking was that the collision was minor and
the sideswipe contact would not have been sufficient to re-direct Ms. Fontaines
vehicle. He therefore concluded that in order for her right side tires to have
ridden up the curb, her vehicle must have been steered to the right, likely in an
attempt to avoid a collision. I find this was the case. Mr. Sdoutz reasoned
further that the right front wheel of Ms. Fontaines car would have been
turned toward the curb and, because the rims did not show signs of impact,
whatever curb contact had occurred would likely have been absorbed by the front
tires. He confirmed that the front to back impact experienced by Ms. Fontaine
when her vehicle ran up on the curb would have caused a speed change of between
two to four kilometres per hour. At trial, he elaborated that if the impact
against the curb had caused Ms. Fontaines vehicle to stop, which I find
it had, at least momentarily, a higher speed change would have resulted. In
cross-examination, Mr. Sdoutz agreed that the vertical movement experienced
by Ms. Fontaine on impact with the curb could be a significant feature of
the Accident, but that he had not taken that factor into account in formulating
his opinion.
[35]
Permeating the tenor of much of the defendants case was the supposition
that where the structural damage to a vehicle and/or the force of the collision
is classified as relatively minor from the perspective of an engineer, it
follows that injury to the vehicle occupant must also be of small consequence.
This Court has repeatedly observed that such a reasoning is dubious in the
absence of cogent evidence that connects those core propositions: Gordon v. Palmer
(1993), 87 BCLR (2nd) 236; Sooch v. Snell, 2012 BCSC 696; Tarzwell v.
Ewashina, 2011 BCSC 1464. As Dley J. instructively remarked in Tarzwell
at para. 51:
.Even if one accepts the
defendants version of the collision, as being minor with no resulting physical
damage to either car, that does not default to an assumption that injuries
could not result or must be minor. The severity or extent of damage to a
vehicle is not determinative of the consequences to the vehicle occupants.
[36]
There was no evidence that the force of the impact in this case could
not have produced or is inconsistent with the physical symptoms complained of
by Ms. Fontaine, whether or not her vehicle hit the curb.
[37]
In final submissions, defence counsel acknowledged that the simple fact
that the Accident may have been minor, did not exclude the possibility that it
caused injury to Ms. Fontaine. In fact, the defendants concede that the
Accident did cause her a degree of soft tissue injury to her neck and
back. They say that the relevance of Mr. Sdoutzs opinion is that it
establishes that the collision was minor which they assert supports their
contention that Ms. Fontaine overstated the nature and severity of the
impact to the physicians who tendered expert opinion evidence on her behalf. Building
on that premise, the defendants argue that her exaggerated recitation of the
nature of the Accident weakens the opinions of those experts and taints Ms. Fontaines
credibility at large.
[38]
As will be seen, it is my conclusion that Ms. Fontaine did not misstate
the nature of the collision to any physician and that this line of argument
goes nowhere. In the end, while I found Mr. Sdoutzs report to be of
general interest, it did not advance the defendants case.
·
Aftermath of the Accident
[39]
Ms. Fontaine testified that she became progressively uncomfortable right
after the Accident. Her regular family doctor, Dr. Barnard, was away and
so, on September 4, 2007, she returned to the Northshore walk-in clinic
where she was seen by Dr. Krista Bradley. She told Dr. Bradley that
she had been hit on the drivers side and had no history of problems with her
neck or back. Dr. Bradley charted Ms. Fontaines complaints as left
and right lower lumbar pain, moderate to severe headaches and really sore
neck and shoulders, and assessed muscle strain and sprain in her back and neck.
She recommended rest, gentle movements, heat and massage therapy and prescribed
Tylenol 3 for pain, a muscle relaxant and an anti-inflammatory, and told to
follow up at the clinic as necessary.
[40]
Ms. Fontaine was next seen by another physician at the Northshore
clinic on September 11, 2007. The intake nurse recorded complaints of
continuing pain in Ms. Fontaines paraspinal area and her cervical and
thoracic spine. The examining doctor noted muscle spasm and pain in the
cervical and lumbar aspects of her spine. Rest, heat, and massage with
continuing use of the prescribed medications were advised.
[41]
At the time of the Accident, Ms. Fontaine was in the probationary
period of her recently acquired job as a customer service representative. Her
position required her to answer incoming calls while seated at a desk. During
the medical visit on September 11, 2007, the physician wrote a note to the
effect that she was still suffering from lumbar pain and was unable to return
to work until September 17. The doctor also wrote a separate referral for
massage therapy to treat Ms. Fontaines muscle spasm, back and c-spine
post MVA.
[42]
On September 17, 2007, Ms. Fontaine attended Halston Place
Physiotherapy & Massage. On the file opening form, she described her
injury as got sideswiped by another car. When she met with the massage
therapist, Melanie Roberts, Ms. Fontaine elaborated that the driver in the
left lane had veered into her lane and pushed her car onto the sidewalk. In
the initial consult, her signs and symptoms were recorded as low to mid-back and
neck stiffness with headaches and poor sleep.
[43]
By September 18, Ms. Fontaines back and neck symptoms had not
improved, despite having received two massages. Dr. Bradley assessed
upper back, low back and neck strain and authored a note stating that Ms. Fontaine
would be off work for another month due to injury. Dr. Bradley recommended
and demonstrated exercises and stretches to Ms. Fontaine to help minimize her
pain and other symptoms. She also suggested that Ms. Fontaine add
physiotherapy as a mode of treatment in conjunction with massage therapy. In
the ensuing three weeks, Ms. Fontaine had five additional massage sessions
that concentrated on her neck and thoracic and lumbar spine.
[44]
Ms. Fontaine testified that the cost of massage therapy was
expensive and that her parents had paid for them because she had no extended
benefit coverage. She agreed that they would have likely paid for her to
attend physiotherapy, but that she did not ask them to do so and, consequently,
she did not pursue Dr. Bradleys recommendation that she try physiotherapy.
[45]
The evidence establishes that Ms. Fontaines injuries interfered
with her job attendance and performance and eventually led to the termination
of her employment in or around October 2007. Later that same month, she
accepted a new job, working full-time as a cashier in a liquor store.
[46]
On October 29, 2007, Ms. Fontaine saw Dr. Barnards
locum. The clinical chart indicates she reported having been broad-sided in
the Accident and subsequently fired from her job, as unable to work. That
was accurate. She complained of significant pain in her low back radiating
down her left leg, and of sleep disturbance due to pain. Among other things,
the locum noted tenderness to palpation of Ms. Fontaines low back and sacroiliac
joint and a slight winging at her scapula. The recorded impression was
multiple soft tissue triggers, which Dr. Barnard clarified meant multiple
sore points. A sleep medication was prescribed, and she was told to return in
one weeks time.
[47]
In follow up on November 5, the locum wrote a note for ICBC
addressed to whom it may concern. It stated that Ms. Fontaine had been
unable to work due to injuries since the Accident, and was incapable of doing
physical work or prolonged sitting.
[48]
Ms. Fontaine was seen by Dr. Barnard for the first time after
the Accident on December 5, 2007. She reported that her neck was a lot
better, but that her low back was not, and that she felt numbness in her right
thigh. Dr. Barnard sent her for an x-ray of her sacroiliac joint and
lumbar spine. The results of both were normal.
[49]
It would appear that Ms. Fontaine did not try out for the TRU or
any other hockey team or play hockey at all in the eight months of 2007
preceding the Accident. Her testimony was that shortly after the Accident she
had, on one occasion, skated with the local womens team, The Vibe, which played
a significantly lower calibre of hockey than the elite level she was capable of.
Ms. Fontaine persuasively testified that the pain in her lower back was so
intense she was unable to bend over while skating or even push her legs, and that
she was so discouraged she hung up her skates for good. Her fathers
recollection, which I accept as accurate, is that she came home that day
distraught and in tears.
·
Move to Alberta
[50]
At the end of January or the beginning of February 2008, Ms. Fontaine
and Mr. Kaliszewski moved to the small community of St. Paul in northern
Alberta. Ms. Fontaine testified that her low back symptoms persisted and
she continued to find it difficult to stand and sit for extended periods of
time. She also testified that her neck pain and headaches lingered.
[51]
During the six months or so that the couple lived in St. Paul, Ms. Fontaine
did not seek out a family doctor, physiotherapist or chiropractor. Although
there was some discrepancy between her evidence at discovery and at trial,
I conclude that while residing in St. Paul, Ms. Fontaine had
massage therapy three or four times in the therapists private home to address
her symptoms, and within this timeline also had a massage while on a trip back
to Kamloops.
[52]
While in St. Paul, Ms. Fontaine worked as a waitress at a
pizza place and a Smittys restaurant. Although her hours fluctuated, she
agreed that her job at Smittys was a full-time position. Mr. Kaliszewski
was away working in camp about 60% of the time and was otherwise at home. When
at home, he would do the lions share of the household chores. Ms. Fontaines
sister, who lived nearby, would also regularly help out around the house.
[53]
In the late summer of 2008, Ms. Fontaine and Mr. Kaliszewski
moved to Fort McMurray. Ms. Fontaines parents had previously relocated
there. According to Ms. Fontaine, her low back pain began to appreciably worsen
around the time of or shortly after the move. Mr. Kaliszewski supported
her evidence on that point.
[54]
Ms. Fontaine testified that soon after relocating to Fort McMurray,
she began to receive hour-long massages on a monthly basis from a woman called
Tammy, whose husband worked with Ms. Fontaines mother. Those treatments
provided her some symptomatic relief, but the positive results were not
long-lasting. I believe her.
·
Drs. Bernard Nwaka and Wilhelm Meerholz
[55]
On May 20, 2009, Ms. Fontaine became a new patient of Dr. Nwaka.
She had not seen a doctor about her Accident-related injuries since December,
2007, a period of close to 18 months. Dr. Nwaka provided an opinion as an
expert in family medicine on Ms. Fontaines behalf and testified at trial.
[56]
As noted earlier, one branch of the defence theory is that Ms. Fontaine
misstated the nature of the impact of the collision to Dr. Nwaka. In his
records and written opinion, he described Ms. Fontaines vehicle as having
been T-boned in the Accident. Ms. Fontaine denied portraying the
Accident to him that way. At trial, Dr. Nwaka explained that he was aware
that she had been sideswiped and not T-boned, and had inadvertently used the
wrong descriptor in his report and chart. I accept his evidence.
[57]
Ms. Fontaine testified that, although her most bothersome symptom
was her low back pain throughout the time she saw Dr. Nwaka, she also
continued to experience residual neck pain and headaches. At the first
appointment, Dr. Nwaka charted complaints of a history of persistent low
back pain but made no notation of neck pain or headaches. Ms. Fontaine
was not sure whether she had mentioned her neck pain to Dr. Nwaka, but
believed she did report her headaches. Dr. Nwaka testified that it is his
practice to record only the key problems relayed by the patient and that he might
not make entries respecting all of the complaints that are raised during a
particular appointment.
[58]
Dr. Nwaka did not have Ms. Fontaines medical records or any
treatment reports when she came under his care. She told him or left him with
the distinct impression that she had tried chiropractic treatments before she
saw him, and that despite those treatments and sessions of massage therapy, her
low back pain had worsened over time. While I accept that Ms. Fontaine
had received massage therapy in St. Paul and upon settling in Fort McMurray,
she had not seen a chiropractor for many years and certainly not after the
Accident. When confronted with that reality in cross-examination, Ms. Fontaine
hinted that perhaps the problem lay with Dr. Nwaka in the sense that he had
misunderstood her. Given my finding that she made the same erroneous
representation to Dr. Meerholz (referred to below), I am not
persuaded of that.
[59]
In any case, Dr. Nwaka referred Ms. Fontaine for an MRI of her
lumbar spine, which was performed on July 23, 2009. It indicated the
presence of significant disc desiccation at the L4‑5 and L5‑S1
levels, with a possible small posterior annular tear of the L4‑5 disc. Upon
receipt of the MRI imaging, Dr. Nwaka referred Ms. Fontaine to the
Caleo Health Centre in Calgary for further assessment and management.
[60]
Within the foregoing time frame, Ms. Fontaine also occasionally consulted
Dr. Nwaka about non-Accident related matters. She continued to see him
between September 28, 2009 and October 21, 2010; some of those
appointments were to address her ongoing low back symptoms and others were not.
[61]
Dr. Meerholz is a medical doctor who performs back and spine triage
assessments for orthopedic surgeons and neurosurgeons at the Caleo Health
Centre in Calgary. Ms. Fontaine was seen by him and other members of the
spine team on October 2, 2009. As she had done with Dr. Nwaka, she represented
to Dr. Meerholz that she had undergone a trial of chiropractic treatments
following the Accident which provided her with temporary relief only. In
cross-examination, Ms. Fontaine conceded that what she told Dr. Meerholz
was not accurate. Indeed, it was plainly false.
[62]
Dr. Meerholzs view was that Ms. Fontaine may benefit from
conservative measures of physiotherapy consisting of a specified strengthening
program, with the objective of improving the mobility and stability of her
spine and decreasing irritation. He also recommended that she complete core
strengthening and receive facet joint injections and then follow up with the Caleo
Health Centre in six to eight weeks.
[63]
Dr. Nwaka reviewed Dr. Meerholzs recommendations to implement
a trial of physiotherapy with Ms. Fontaine. She explained that she was
doing the home exercises that Dr. Meerholz had provided to her and did not
pursue the suggested course of physiotherapy at that time.
[64]
Ms. Fontaine next saw Dr. Meerholz on April 1, 2010,
nearly one year after her initial assessment, and again on May 12, 2010. She
reported that while she had good and bad days with her symptoms, overall her
continuous low back pain on both sides, which at times radiated from her groin
down to her heel, had not improved. At the May 12th visit, Dr. Meerholz
suggested that she return after she completed a spinal rehabilitation program.
At trial, he clarified that such a program would encompass physiotherapy,
massage therapy and exercise.
[65]
Ms. Fontaine did not enrol in a rehabilitation program and received
no physiotherapy. However, she continued to receive massages from time to time
and perform the recommended stretches and exercises at home. As well, in
accordance with another of Dr. Meerholzs suggestions, she travelled to
Calgary for cortisone injections on both sides of her facet joints. At trial,
she testified that they gave her temporary relief only and so she decided not
to repeat the procedure.
[66]
Ms. Fontaine saw Dr. Nwaka on two occasions in the fall of
2010 and visited a separate walk-in clinic on October 19, 2010 and February 26,
2011, all for matters unrelated to her spinal symptoms. She testified that she
did not mention her low back pain to Dr. Nwaka when she was seeing him for
unrelated ailments because he was already well aware of those difficulties. That
explanation strikes me as plausible, and I accept it.
[67]
In January 2011, Dr. Meerholz ordered a second MRI which was
carried out on March 16, 2011. It revealed the presence of additional degenerative
disc disease at the L3-4 level of her spine.
[68]
Ms. Fontaine also had two chiropractic treatments in or around November and
December 2010 and a third session in late 2011. Contrary to her
statements to Dr. Nwaka and Dr. Meerholz, these were the only chiropractic
treatments she received after the Accident.
·
Physiotherapy Treatments at the Blackgold Clinic 2012
[69]
In mid-June 2012, Ms. Fontaine began an eight week program of
rehabilitative physiotherapy at the Blackgold Physical Therapy clinic on
referral from Dr. Nwaka. Mr. Kaliszewskis impression was those
physiotherapy sessions have been of greater benefit to his wife than the
massage therapy she has received. Ms. Fontaine explained that the two
modalities have both helped her, although in somewhat different ways, but that
the symptomatic relief they provided was only temporary. Her observation is
consistent with Dr. Meerholzs testimony to the effect that those treatments
can work well individually for lumbar pain and as complementary therapies. Ms. Fontaine
made it clear that the physiotherapy sessions have not resolved her low back symptoms.
[70]
Mr. Kaliszewski believed that his wife had received physiotherapy
at a different clinic long before she started with Blackgold in June 2012.
However, the evidence establishes that her first physiotherapy treatment after
the Accident was on June 19, 2012, at the Blackgold clinic. My view is
that Mr. Kaliszewski was honestly mistaken on the point and was not
attempting to deceive the Court.
[71]
The defendants suggest that Ms. Fontaine has not attended the
number of physiotherapy sessions that Dr. Nwaka recommended she take at
the Blackgold clinic. The evidence on that point was equivocal. I accept
that she attended the appointments substantially in accordance with the medical
recommendation, making allowances for the reality that her work schedule did
not permit her to attend three times every week.
·
Employment in Fort McMurray
[72]
From the time she began work at the liquor store in Kamloops not long
after the Accident, Ms. Fontaine has not missed any time from work due to
her low back complaints or any other injuries sustained in the Accident. Since
moving to Fort McMurray, she has held full-time employment with a variety of
companies. Most of her positions have been clerical or administrative in
nature and all of them have been largely sedentary.
[73]
At the time of trial, Ms. Fontaine was employed by Johnson Controls
in an administrative type position as a scheduler. She had been there (or with
the company that it had taken over or merged with) for approximately 14 months.
She currently works 16 consecutive days, 12 hours per day, followed by 12 days
off. She normally commutes to and from the job site on the company bus, and
her daily travel time adds another two and sometimes three hours to her 12-hour
shift. Her present salary is $120,000 per annum.
[74]
Ms. Fontaine testified that she encounters difficulties discharging
her duties at work because of the pain and functional limitations, especially
her intolerance for prolonged sitting caused by her low back injury in
particular. She testified that she perseveres because I have to.
·
Wedding and New Home
[75]
On May 10, 2012, Ms. Fontaine and Mr. Kaliszewski were
married in Mexico, where they spent a week before departing for a two-week
honeymoon in Italy.
[76]
The cost of living in Fort McMurray is extremely high. Around the time
they married, the couple sold their modular home for approximately $540,000 and
purchased a three-level house in Fort McMurray from Ms. Fontaines father for
approximately $960,000. The main and upper floor occupied by Ms. Fontaine
and her husband is approximately 2,400 square feet. The basement area, which
is tenanted, is about 700 square feet.
·
Weight Gain
[77]
During her teen years and continuing through adulthood, Ms. Fontaine
has relied on regular cardiovascular exercise to keep physically fit and trim.
As an active hockey player, she consumed a lot of calories, but was able to hold
her weight at 150 pounds on account of her active lifestyle. I accept
that when she returned to Kamloops from RMU in December 2006, she weighed
her usual 150 pounds. Although she did not play competitive hockey while
attending TRU or thereafter before the Accident, Ms. Fontaine joined a
womens gym where she routinely worked out and maintained her extremely active
lifestyle. It can be reasonably inferred from the evidence that during this
period, namely from January 2007 until the time of the Accident, her
weight remained stable at a 150 pounds. That changed after the Accident.
[78]
By the time of her first appointment with Dr. Nwaka in May 2009,
Ms. Fontaine weighed 175 pounds. Within the ensuing four months, she gained
an additional 19 pounds and by August 1, 2012, she was over 200 pounds. Ms. Fontaine
testified that she had put on the majority of her weight after the move to Fort
McMurray, although Mr. Kaliszewski seemed to think she had gained most of
it before they relocated there. I find that Ms. Fontaine kept more
accurate track of her ballooning weight problem than did her husband, and accept
her evidence in preference to his.
[79]
Ms. Fontaine attributed her dramatic post-Accident weight gain to
her inability to manage her weight through a regimen of intensive and regular cardiovascular
activities the way she had done before the Accident. Mr. Kaliszewski supported
his wifes credible testimony that her unwelcome weight gain came to undermine her
self-confidence and self-esteem.
[80]
Since the Accident, Ms. Fontaine has consulted with a dietitian for
advice and attempted many diets, which have resulted in only marginal and
temporary success. Mr. Kaliszewski explained his wifes pattern of losing
ten pounds or so and then gaining it back, despite the fact that she only eats
two meals a day.
[81]
At the time of trial, Ms. Fontaine was enrolled in the Weight
Watchers program. There was no cogent evidence as to her progress.
·
Additional Evidence of Family Members
[82]
Mr. Kaliszewski impressed me as a forthright and even earnest witness
who did not embellish his testimony in a way aimed at advancing his wifes
litigation interests. Her father also presented as a reliable and credible witness.
[83]
Both of them spoke with genuine emotion about Ms. Fontaines
dramatic decline in the aftermath of the Accident. They described her as a
stoic young woman who prefers to endure pain and discomfort quietly and is not
prone to complain. Even so, it has been obvious to them that she has been struggling
and in pain since the Accident.
[84]
Mr. Kaliszewski supported his wifes testimony about the
progression of her symptoms after the Accident and the worsening of her low
back pain in particular, which he described as being present 24/7 around the
time they relocated to Fort McMurray. Her low back symptoms occasionally
implicate her hips with pain and/or numbness radiating down one or both of her
legs. She has taken Advil and/or Tylenol nearly daily since the Accident and
sometimes grimaces from the pain. Mr. Kaliszewski described her movements
after the Accident as stiff and robotic-like and said she had developed a
duck-like gait, shifting from side to side. Mr. Fontaine observed that his
daughters posture and movement was more frozen and much less fluid than it had
been before the Accident. He has noticed tears welling up in her eyes on
occasion because of her pain.
[85]
Mr. Kaliszewski detailed how his wifes injuries have prevented her
from participating in most of the athletic and recreational pursuits that they
enjoyed before the Accident, such as intense gym workouts, taking their dog on
long runs, playing volleyball, camping and hiking. He testified that she finds
bending forward exceptionally problematic.
[86]
They seldom go to a movie, which was an outing they frequently enjoyed before
the Accident, because Ms. Fontaine cannot tolerate the prolonged sitting.
They choose restaurants based on the kind of seating it offers and even then Ms. Fontaine
typically fidgets in her chair as she tries to get comfortable during the meal.
When they drive a long distance, for example to Edmonton to visit family, they
have to take several breaks to accommodate Ms. Fontaines need to get out
of the car and move around as a means of coping with her symptoms. The couple
still take an average of about two vacations a year, usually to a warmer
climate. Ms. Fontaine finds the long flights difficult. She tosses and
turns in her sleep due to her discomfort and rarely sleeps through the night.
Her fitfulness occasionally awakens Mr. Kaliszewski although he noticed
that her sleep seems to have improved recently with the purchase of a new
mattress.
[87]
Before the Accident, the couple frequently danced at a club where Mr. Kaliszewski
worked; after the Accident, Ms. Fontaine feels too much discomfort to
enjoy that fun past time. They both testified that their physical intimacy has
been very much compromised due to Ms. Fontaines low back discomfort.
[88]
Mr. Kaliszewski has witnessed an obvious deterioration of his wifes
mood and emotional well-being. Ms. Fontaine testified about her emotional
decline, noting that she has been taking antidepressants for a little while. I find
her low mood is related to the pain and physical limitations imposed by her low
back injury as well as her low self-esteem occasioned by the unwanted
additional weight that she has been unable to shed.
[89]
According to Mr. Kaliszewski, his wife sometimes vacuums the wood floors,
but is not able to manage the vacuuming of the carpets in the upstairs rooms,
nor do any heavy lifting, scrubbing or hard cleaning. She needs to hold onto
the bannister when she uses the stairs, making it impossible for her to carry a
basket of laundry or other items that require her to use two hands while going
up or down the stairs. Prior to the Accident, she regularly gardened and did
yard maintenance at her parents home. Now, she is not able to mow her lawn in
summer or shovel snow in the winter. Ms. Fontaines cousin and the
basement tenant have pitched in this past summer to mow the lawn, and one of
her sisters has visited from Edmonton periodically to lend a hand with the more
demanding household chores.
[90]
Mr. Kaliszewski also performs many of the domestic chores. He
typically works three day shifts followed by three night shifts, with the next
six days off. He is occasionally required to work at a more demanding overtime
pace during the shutdown of his workplace plant, but subject to that, is able
to be home during the day every nine of twelve days.
[91]
Ms. Fontaine is able to prepare meals and clean surfaces in the
kitchen and elsewhere, mop the floors and attend to her own personal grooming.
She is also able to watch television, although not as much as she likes because
she finds the prolonged sitting too tiring. She and her husband do the grocery
shopping together. In about June 2012, they employed a housekeeper to
perform the heavy cleaning chores once every three weeks or so.
[92]
Despite the high cost of living, Mr. Kaliszewski and his wife plan
to remain in Fort McMurray for the duration of their working lives. They hope
to have two or possibly three children together at some unspecified future
time.
·
Ms. Fontaines Credibility
[93]
Ms. Fontaines credibility and the reliability of her evidence are
pivotal in determining the causation of her injuries as well as her damages.
They also have bearing on the weight to be given to the medical opinions to the
extent that they are tied to her subjective reporting and recitation of her
activities and condition before and after Accident.
[94]
As noted earlier, in January 2007 Ms. Fontaine had started as
a full-time student at TRU. Of her four courses, she withdrew from one and
failed the others. She did not enrol for the next semester. In her direct
evidence, Ms. Fontaine explained her abysmal academic performance in some
detail, stating that she had found it difficult to remain seated in the
classroom on account of her injuries and was therefore absent from class a good
deal of the time. She presented the Accident as the sole reason for failing
her courses at TRU. When pressed in cross-examination, she reluctantly agreed
that she had in fact attended TRU before the Accident. She then suggested that
her courses in the January 2007 term may not have been the only ones she
took at TRU, meekly implying that she had also taken classes after the
Accident. When questioned further, however, Ms. Fontaine admitted that
she had not attended TRU after the Accident, and ultimately acknowledged that
her poor academic performance there had occurred before the Accident.
[95]
In her evidence in-chief, Ms. Fontaine gave evidence in broad
strokes about having received massage therapy, chiropractic care and
physiotherapy for her ongoing back symptoms, creating the erroneous impression
that she had attempted all of those modalities after the Accident with limited
symptomatic relief. As noted, she had similarly misstated her post-Accident
chiropractic treatments to Drs. Nwaka and Meerholz. At trial, she was not
able to offer a satisfactory explanation about why she had made those
misrepresentations. In my view, her misreporting to those physicians and less
than candid testimony at trial on that matter and groundless insistence that
the Accident was to blame for her lackluster academic performance at TRU were
not the result of merely being a poor historian. It went further than that and
suggested a preparedness to overstate the severity of her symptoms, her
diligence in addressing them, and their adverse impact. These troublesome
features of Ms. Fontaines testimony pose some concern.
[96]
Linked to their several discrete criticisms of Ms. Fontaines
credibility, and relevant to the issues of causation and damages, is the
defendants additional complaint that her account of the nature and duration of
her symptoms does not harmonize with her day-to-day activities, including her
exceptionally long workdays, and were not always reflected in the medical
records. They also say that the significant gap of time between December 2007
and May 2009 where Ms. Fontaine did not seek any medical assistance
or treatment for her injuries is especially telling and indicates that her
injuries had essentially resolved within that timeframe.
[97]
In Edmondson v. Payer, 2011 BCSC 118 (S.C.), affd 2012
BCCA 114, at paras. 34-37 N. Smith J. provided instructive
commentary on the evidentiary use of clinical records including the relevance
of the patients documented statements and of their absence:
The difficulty with statements in clinical records is that,
because they are only a brief summary or paraphrase, there is no record of
anything else that may have been said and which might in some way explain,
expand upon or qualify a particular doctors note. The plaintiff will usually
have no specific recollection of what was said and, when shown the record on
cross-examination, can rarely do more than agree that he or she must have said
what the doctor wrote.
Further difficulties arise when a number of clinical records
made over a lengthy period are being considered. Inconsistencies are almost
inevitable because few people, when asked to describe their condition on
numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad,
2004 BCSC 470, at paragraph 104:
…the reports are those of a layperson going through a
traumatic and difficult time and one for which she is seeing little, if any,
hope for improvement. Secondly, the histories are those recorded by different
doctors who may well have had different perspectives and different perceptions
of what is important. … I find little surprising in the variations of
the plaintiffs history in this case, particularly given the human tendency to
reconsider, review and summarize history in light of new information.
While the content of a clinical record may be evidence for
some purposes, the absence of a record is not, in itself, evidence of anything.
For example, the absence of reference to a symptom in a doctors notes of a
particular visit cannot be the sole basis for any inference about the existence
or non-existence of that symptom. At most, it indicates only that it was not
the focus of discussion on that occasion.
The same applies to a complete
absence of a clinical record. Except in severe or catastrophic cases, the
injury at issue is not the only thing of consequence in the plaintiffs life.
There certainly may be cases where a plaintiffs description of his or her
symptoms is clearly inconsistent with a failure to seek medical attention,
permitting the court to draw adverse conclusions about the plaintiffs
credibility. But a plaintiff whose condition neither deteriorates nor improves
is not obliged to constantly bother busy doctors with reports that nothing has
changed, particularly if the plaintiff has no reason to expect the doctors will
be able to offer any new or different treatment. Similarly, a plaintiff who
seeks medical attention for unrelated conditions is not obliged to recount the
history of the Accident and resulting injury to a doctor who is not being asked
to treat that injury and has no reason to be interested in it.
[98]
Remarks highlighting the need to take care in the judicial treatment of
clinical records along similar lines can be found in numerous additional authorities.
Particularly apt here are the remarks of Griffin J. in Tsalamandris v.
McDonald, 2011 BCSC 1138, para. 133:
A treating physician is not
a scribe, writing down everything the patient says verbatim in anticipation of
a future legal battle where every word and every absent word will be
highlighted for significance. Nor is the patient shown the notes at the time,
and so she has no opportunity to correct the misunderstanding of what the
patient said.
[99]
Defendants counsel expanded the criticism to encompass Drs. Nwaka
and Meerholz for their alleged failure to address the gap in Ms. Fontaines
medical appointments. Yet, defence counsel elected not to cross-examine either
doctor on that point in any meaningful way. The absence of commentary on the
part of these physicians does not detract from the weight to be afforded to
their respective opinions.
[100] I am likewise
not bothered by the fact that on the occasions when Ms. Fontaine saw a
physician for a non-Accident related complaint, she did not mention her
injuries. It is also my view that she chose not to discuss her sore neck and
headache symptoms when complaining of her ongoing low back pain because they
were of small comparative importance and in her mind warranted less medical
attention than her low back deficit. Indeed, I conclude that the
frequency and intensity of Ms. Fontaines neck whiplash and headaches
improved considerably within the first year of the Accident, although they did
not resolve entirely.
[101] An
inference that Ms. Fontaine had recovered from her injuries before or
around the time of her move to Fort McMurray as urged by the defendants cannot
be properly drawn solely or predominantly on the basis that certain symptoms
are absent from the clinical records, nor from the existence of the 17 to 18
month gap in seeking medical treatment for her injuries. This is especially
true in light of the fact that Ms. Fontaine continued to receive massage
therapy within that period, is a stoic person not prone to complain, and was
young and extremely physically fit when the Accident happened. Additionally,
I accept that her low back pain and corresponding dysfunction gradually
worsened in the year or so following the Accident, and so before then when she
was living in St. Paul and in the early days in Fort McMurray, she
reasonably perceived less need for continued medical intervention.
[102] Evaluating
Ms. Fontaines testimony against the whole of the evidence, I conclude
that some of the defendants criticisms of her were little more than straw man
arguments, and that a number of the shortcomings they emphasized are of no
moment and did not impugn her credibility on central issues. As was observed
by Brenner J. (as he then was) in Noyes v. Stoffregen, [1995]
B.C.J. No. 73 (S.C.), it is not uncommon for a plaintiff in a personal
injury case to become deeply focussed on her injuries and unconsciously exaggerate
the deleterious aspects of their effect upon her. (See also Dinyar-Fraser
v. Laurentian Bank et al., 2005 BCSC 1432 at para. 18.) I am
satisfied this largely explains Ms. Fontaines repeated misstatements
about the nature and timing of the treatment modalities undertaken after the
Accident. Despite my misgivings, her testimonial deficiencies were not of the
kind or significance to justify the conclusion that she is a discreditable
witness across the board or to require independent corroborative evidence in
order to accept her testimony about the sequelae of the Accident. I find
this in large part because of the convincing force of the supportive testimony
of her father and husband. That said, her credibility did not emerge entirely
unsoiled at the end of cross-examination and I have approached her
testimony with a degree of caution.
·
Basic Principles
[103] For Ms. Fontaine
to recover damages there must be a causal link between the Accident and her
injuries. The primary test used in determining causation is known as the but
for test. The plaintiff bears the burden of showing, on the balance of
probabilities, that but for the defendants negligent act or omission, the injury
would not have occurred.
[104] A
plaintiff does not need to establish that the defendants wrongful conduct is
the sole cause of the injury. So long as the plaintiff proves a substantial
connection between the injuries and the defendants negligence beyond the de minimus
range, the defendant will be fully liable for the harm suffered, even if other
causal factors, which the defendant is not responsible for, were at play in
producing the harm: Athey v. Leonati, [1996] 3 S.C.R. 458; Blackwater
v. Plint, 2005 SCC 37; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32.
[105] The
causation test does not demand scientific precision and is not to be applied
too rigidly: Snell v. Farrell, [1990] 2 S.C.R. 311. Causation is a
practical question of fact that can best be answered by ordinary common sense.
As Dardi J. reminded in Midgley v. Nguyen, 2013 BCSC 693, at para. 172,
the legal concept of causation is different from the more rigorous standard
applied in the medical field that approaches scientific certainty.
[106] The court
will exercise caution in inferring legal causation by exclusive or substantial
reference to a temporal sequence of events, which often takes the form of
comparing the plaintiffs condition in the pre and post-Accident scenarios: Madill
v. Sithivong, 2012 BCCA 62 at para. 20; White v. Stonestreet,
2006 BCSC 801 at paras. 74-75. As I have noted in past decisions, it
does not follow that the judicial insistence of caution signifies judicial
thinking that temporal reasoning is an illegitimate analysis or a branch of
logic to be seldom invoked: see also, Midgley.
[107] The
defendants position is that Ms. Fontaine sustained minor soft tissue
injuries to her neck and back as a result of the Accident. They contend that
her degenerative disc disease is not causally related to the Accident and
therefore any back complaints attributable to such disease, which they contend
include all those she claims to have endured from May 2009 forward, were
not caused by the Accident.
[108] The
parties agreed, by way of a formal admission, that the degenerative disc
disease detected at the L3-4, L4-5 and L5-S1 levels of Ms. Fontaines
spine was not caused by the Accident.
·
Analysis of Causation
Dr. Nwaka
[109] Dr. Nwaka
was qualified as an expert in the area of family practice and provided an
expert report dated June 30, 2012 on Ms. Fontaines behalf.
[110] In his
opinion, Ms. Fontaines long-standing chronic low back pain and neck
complaints, which dated back to the occurrence of the Accident, were caused by
it. I understood him to disagree with the proposition that the causative
source of Ms. Fontaines low back pain was her degenerative disc condition
in the sense that whatever caused that condition also caused her symptoms. In
his view, the Accident activated her degenerative condition and rendered it
symptomatic. He was not prepared to defer her to a neurosurgeon such as Dr. Pacquette
on that issue.
[111] Dr. Nwakas
primary line of reasoning as to causation was based on a temporal comparison of
Ms. Fontaine before and after the Accident, namely that she had
experienced low back symptoms and impaired function after the Accident whereas
she had not beforehand.
[112] Dr. Nwaka
did not know Ms. Fontaines health or medical status before he began
treating her on May 20, 2009. He was asked whether he would modify his
opinion as to causation if she had a pre-Accident history of treatment by a
chiropractor. He answered that even if Ms. Fontaine had received chiropractic
treatment in the L5 area of her spine, it would not necessarily change his
opinion. Whether or not he would modify his opinion in light of such information
would depend on the reason Ms. Fontaine had sought chiropractic care and
how long before the Accident such treatments had taken place.
[113] Dr. Nwaka
testified that by August 27, 2009, Ms. Fontaine came within the
medical classification of obese. He agreed that obese people can have low back
pain and that he would generally endorse a regimen of regular exercise for such
patients. At no time did he comment on the relationship, if any, between Ms. Fontaines
post-Accident weight gain and the onset, nature or intensity of her chronic low
back symptoms.
[114] Dr. Nwaka
predicted a very poor prognosis for Ms. Fontaines complete recovery to her
pre-morbid status. His view was that if the eight week stint of intensive
therapy that she had recently undergone at the Blackgold clinic did not improve
her condition, she would be left with a long time continuing problem.
Dr. William Meerholz
[115] Dr. Meerholz
provided two written reports in this action respectively dated August 1
and August 12, 2012, and testified at trial.
[116] In
furtherance of their theory that Ms. Fontaine overstated the severity of
the collision to her physicians, the defendants interpreted Dr. Meerholzs
first report as stating that she told him the collision was a lateral side
impact on both sides of her car. However, the way I read his report, that
statement represents Dr. Meerholzs conclusion based upon Ms. Fontaines
accurate report to him about the nature of the Accident. More to the point, in
Dr. Meerholzs second report, which is almost exclusively devoted to the
question of causation, he relies on Dr. Pacquettes summary of the
mechanics of the Accident and not his mistaken understanding that there had
been a lateral collision. As mentioned, this line of argument was unhelpful to
the defence.
[117] Dr. Meerholz
diagnosed Ms. Fontaine with grade 2 whiplash of her neck and upper
and low back and opined that they were caused by the Accident. He noted that her
symptoms had waxed and waned but had not resolved.
[118] Dr. Meerholz
agreed with the common-sense proposition that having knowledge of Ms. Fontaines
pre-Accident medical history was essential to the determination of causation. To
that end, he had reviewed the medical records kept by Dr. Bradley and Dr. Barnard
(or physicians at their respective clinics), Dr. Besses chart, the
records of Ms. Roberts (the massage therapist) and the medical reports of
the other experts and, in the case of Dr. Nwaka, his clinical chart as
well.
[119] Dr. Meerholz
referred to a long term scientific study that showed the presence of degenerative
disc disease in the spine to be extremely common in individuals involved in competitive
ice hockey as adolescents. He reasoned that findings of a degenerative disc in
a person who played elite level hockey as a teenager, as did Ms. Fontaine,
would therefore not be unexpected.
[120] Dr. Meerholz
also drew attention to a separate study that found the frequency of a
degenerative disc condition in asymptomatic adolescents was 19 to 26%, and was
present in 42 to 58% of adolescents who experienced low back symptoms. He
remarked that it very common for individuals to have degenerative disc disease
and yet be entirely asymptomatic and that, consequently, the existence of the
disease does not invariably equate to the presence of pain or other symptoms.
[121] Dr. Meerholz
shared most aspects of Dr. Pacquettes opinion, except that the Accident
had not been a significant contributor to Ms. Fontaines post-Accident
symptomatology. In his view, the extent of Ms. Fontaines degenerative
disc disease identified on the MRI evaluations correlated with her ongoing
mechanical back symptoms. His belief is that the Accident flared up Ms. Fontaines
disc degeneration thereby triggering her back pain and symptoms. Dr. Meerholz
opined that the Accident was therefore a causative factor to the onset of her
low back pain. In his view, had the Accident not happened, Ms. Fontaine
might have had an uneventful life with no back pain, as she had already
appeared to have stopped playing high-level competitive hockey.
[122] Defence
counsel was dissatisfied with Dr. Meerholzs summary of Dr. Besses
pre-Accident chiropractic treatments in that he neglected to reference all
entries pertaining to Ms. Fontaines low back area. It is plain that Dr. Meerholzs
omissions were not deliberate. I have concluded that Ms. Fontaine
did not have an ongoing injury or problem with her low back or other chronic
physical symptoms before the Accident. In light of my finding, Dr. Meerholzs
oversight does not detract from the quality of his opinion and I conclude that
nothing of importance turns on it.
[123] Ms. Fontaine
was cross-examined about what she told Dr. Meerholz were her functional
abilities. In his initial report, he recorded that she reported she was
independent in her activities of daily living, except for gardening. At trial,
Dr. Meerholz was confident that when he raised the subject of daily living
function with Ms. Fontaine, he had specifically questioned her about
activities around the house, such as cooking, shopping, personal dressing and
self-care. Ms. Fontaine, on the other hand, was adamant that he had
explained the concept to her as encompassing bathing, personal grooming and the
like, and that he had not asked her about her capacity to do housekeeping or other
domestic-like chores.
[124] At trial, Ms. Fontaine,
her husband and her father gave extensive evidence about a wide range of
limitations that Ms. Fontaine is said to face in her everyday life. The
evidence that I accept amply demonstrates that Ms. Fontaine
experiences an array of functional restrictions which impair her capacity to
carry out domestic activities. Acknowledgment of those limitations are
contained, at least implicitly, in other parts of Dr. Meerholzs opinion,
including his recommendation for further extensive physiotherapy. All things
considered, the probabilities of the situation indicate that Ms. Fontaine misunderstood
the expansive definition intended by Dr. Meerholz when he explored her
capacity to perform activities of daily living.
[125] Dr. Meerholz
understood that at the time of his August 1, 2012 examination of Ms. Fontaine,
she was receiving physiotherapy three times per week and massage once a month.
He recommended that she attend further physiotherapy three times per week for
an additional three to six months. Dr. Meerholz confirmed that the fact
she may have only began physiotherapy in June of that year did not alter his
opinions. That said, he went on to say that her failure to follow through on
the courses of physiotherapy he had recommended in 2009 and 2010 could be
problematic. However, he was not asked to clarify what he meant by that.
Dr. Scott Pacquette
[126] Dr. Pacquette
is a neurosurgeon whose practice is limited to the treatment of complex spine
pathologies. At the defendants request he performed an independent medical
assessment of Ms. Fontaine on August 9, 2010. His expert opinion was
tendered as part of the defendants case and he testified at trial.
[127] During the
examination, Ms. Fontaine reported her presenting medical complaints as
pain in her lower back, which at times radiated into her right or left hip
region and intermittently down her right or left leg below the knee. She told Dr. Pacquette
that her back felt sore when she was walking and worsened after prolonged
sitting or standing and were especially intense when she flexed forward or
extended her back after sitting or being bent forward. She also reported
intermittent, very sharp pains in her lower back that would quickly dissipate, and
regular incidences of exacerbated back pain brought on by sudden motions, which
Dr. Pacquette agreed were consistent with the dynamics of starting and
stopping in hockey.
[128] When he
prepared his report, Dr. Pacquette had an incomplete record of Ms. Fontaines
medical charts before and after the Accident. Notably, he did not have Dr. Barnards
pre-Accident records that confirmed an absence of complaints of any back
symptoms in the four and a half years leading up to the Accident during which Ms. Fontaine
had been her patient. The only pre-Accident clinical chart he had in hand were
Dr. Besses records that covered the period September 19, 1999 to March 24,
2003. He placed great emphasis on the contents of those documents:
Of particular interest to me
were the notes from Gordon Besse, Doctor of Chiropractic. These are from the
Back to Health Centre and are dated from September 19, 1999 to March 2003.
These notes from Dr. Besse significantly precede the [Accident]. There
are numerous entries in these notes describing pain in the lumbar region and
thoracic region and manipulations provided for that. I am not fully aware
of the nomenclature used by Dr. Besse, although there are numerous entries
on every date of L4 of L5; presumably these represent treatments provided for
symptoms at these levels.
[129] Based on
his interpretation of Dr. Besses chart, Dr. Pacquette concluded that
it was clear that Ms. Fontaine had issues with her low back long before the
Accident. He did not adequately address the important fact that the sessions
with Dr. Besse had concluded 4½ years before the Accident
[130] At trial, Dr. Pacquette
appeared to agree that there was only a single entry in Dr. Besses
records indicating that Ms. Fontaine had actually reported back pain,
namely the notation made on August 2, 2001 where flexion antalgia was
charted. He acknowledged that the notation the following day recorded that Ms. Fontaine
was much better and had no antalgia. Dr. Pacquette did not have the
benefit of knowing about Dr. Besses precautionary practice where he
routinely performed chiropractic adjustments to areas of the spine that a
patient was not complaining about. Indeed, Dr. Pacquette confirmed that
he did not know what chiropractors do in their office and agreed that,
therefore, he could not interpret what Dr. Besses adjustments of Ms. Fontaine
had been for or why or whether they had been indicated.
[131] In Dr. Pacquettes
opinion, the majority of Ms. Fontaines low back difficulty arose from her
very active life style at a young age. He diagnosed mechanical back pain
secondary to degenerative disc disease. As to the role played by the Accident
relative to her development of degenerative disc disease, he opined:
I do not believe that the
[Accident] was a significant contributor to her development of degenerative
disc disease.
…
I do not believe that the
motor vehicle Accident was a significant contributor to Ms. Fontaines
progressive mechanical back pain. I feel this is due to degenerative disc
disease. Generally this is a condition brought on partially by the patients
genetics and body habitus and also by lifestyle. I believe that her very
active teenaged years, as a competitive varsity hockey player, have been a
significant contributor to her degenerative disc disease.
[132] The
causation of Ms. Fontaines degenerative spinal condition need not be
decided because, as mentioned, the plaintiff admits that the Accident did not
cause that condition. The causation issue relative to Ms. Fontaines low
back simply asks whether, on the balance of probabilities, the Accident was a causative
factor as contemplated by the authorities in the emergence of her post-Accident
symptoms, be they related to her degenerative disease, or not.
·
Discussion
[133] I consider
it significant that in cross-examination Dr. Pacquette agreed that a
traumatic incident such as a motor vehicle accident can be a factor in causing
an asymptomatic degenerative disc condition, such as that afflicting Ms. Fontaine,
to become symptomatic. Within this analytical context he went on to concede
that the Accident could be a causative factor or a small contributor, along
with other factors such as Ms. Fontaines degenerative disc condition, to
the onset of her progressive back pain. On those material points, he and
Drs. Nwaka and Meerholz are essentially of one view.
[134] As I have
noted, the preponderance of the evidence that I accept indicates that Ms. Fontaine
did not have a chronic, or even intermittent, low back problem prior to the
Accident, whether suggestive of a degenerative condition or not, nor did she
suffer from neck pain or headaches of an enduring nature. In my assessment, Dr. Pacquettes
belief that she had suffered low back symptoms for which she had been treated
periodically well before the Accident influenced his conclusions on the issue
of causation. In that regard and to that extent, which is by no means minor,
his analysis is built on flawed underpinnings.
[135] All things
considered, I prefer the combined opinions of Drs. Nwaka and Meerholz
to that of Dr. Pacquette on the matter of causation to the extent of their
differences. I am satisfied on a balance of
probabilities that, but for the Accident, Ms. Fontaine would not have
suffered the low back symptoms that surfaced after the Accident. Although unnecessary
to do so, I conclude more specifically that, in all probability, Ms.
Fontaines degenerative spine was pre-existing and had been entirely
asymptomatic before the Accident and would likely have remained so had the
Accident not occurred, and further that the Accident was a contributing factor
of significance in causing her dormant disease to become symptomatic.
[136] The
defendants sensibly concede that the Accident also injured Ms. Fontaines
neck. It also caused her headaches. I find too that in a domino-like
fashion, the ill-effects of the Accident caused Ms. Fontaine ongoing
disruption to her sleep and a decline in her mood and emotional health.
[137] The
evidence establishes that Ms. Fontaines dominant low back pain negatively
impacted her ability to engage in the intense level of cardiovascular and other
activities that had been an everyday feature of her pre-Accident life. That
far-reaching curtailment is the principal reason she was unable to keep her
weight stable after the Accident. I find that her weight gain accelerated
after moving to Fort McMurray in tandem with and due to the worsening of her
low back injury and its entailing limitations. The probabilities of the evidence
demonstrate that Ms. Fontaines considerable post-Accident weight gain
would not have occurred and that she would not have become obese in the absence
of the Accident.
DAMAGES
·
Basic Principles
[138] The
essential purpose of damages is to restore an injured plaintiff to the same
position he or she would have been in had the negligence not occurred, to the
extent that objective can be achieved by way of a monetary award.
[139] People
have different physical and psychological susceptibility to injuries. A fundamental
principle in the assessment of damages is that the defendant must take the
plaintiff as she is. A plaintiff whose unique psychological makeup or
pre-existing physical condition makes him more vulnerable to sustaining injury
is to be compensated for the entire extent of his injury, both physical and/or
psychological, caused by the defendants negligence. This is so even where due
to some unique feature of the plaintiff, the injury was greater or of a more
dramatic or severe or different type than one would expect an average person to
sustain. It is no answer for a defendant to say that the plaintiff would have
suffered less injury or a different kind of injury or no injury at all if he or
she had been less susceptible or vulnerable. It is the impact of the defendants
negligence on the actual plaintiff, and not on a fictional one, that is
relevant for compensatory purposes: Athey.
[140] As
fundamental is that a defendant is not expected to put the plaintiff in a
better position than the plaintiff had been in the moment before the Accident
happened. It is the difference between the plaintiffs original position with
any attendant risks and shortcomings (e.g. a pre-existing condition) just
before occurrence of the negligent act or omission, and the injured position
after and as a result of such act or omission, that comprises the plaintiffs
loss: Athey at paras. 34-35.
[141] A
pre-existing condition, latent or active, is part of the plaintiffs original
condition. Where the evidence demonstrates a measurable risk that a
pre-existing condition would have resulted in a loss to the plaintiff in the
future without the defendants negligence, that risk of loss must be taken into
account in assessing certain heads of damages and serves to reduce the award: Athey
at para. 35; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012
BCCA 331. The contingency of a pre-existing condition manifesting on its own
to cause a loss at some point does not have to be proven to a certainty it is
given weight according to its relative likelihood: A.(T.W.N.) v. Clarke,
2003 BCCA 670.
[142] In the
case at hand, the medical evidence that I accept does not support the
finding of a measurable risk that, absent the Accident, Ms. Fontaines
degenerative disc disease (assuming its presence before the Accident) would
have become symptomatic or that she would have otherwise experienced her
persistent low back deficit, headaches or neck whiplash. Accordingly, there is
no proper basis to reduce her damages on that footing.
·
Non-Pecuniary Damages
[143] Ms. Fontaine
seeks non-pecuniary damages in the range of $60,000 to $75,000. The defendants
counter that an award falling between $30,000 and $40,000 is ample.
[144] Non-pecuniary
damages are intended to compensate a plaintiff for the pain, suffering and loss
of enjoyment of life and of amenities experienced as a result of the defendants
negligence. They are meant to encompass such damages suffered to the date of
trial and those that the plaintiff will suffer into the future.
[145] The award
should be fair and reasonable for both parties as those concepts are measured
against the adverse impact of the particular injuries on the particular
plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176. While
fairness is assessed by reference to awards made in comparable cases, because
each case is decided on its own unique facts and calls for an individualized
assessment, it is neither possible nor desirable to develop a tariff: Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005
BCCA 56 at 25. The process is one of assessment and is not amenable to
mathematical precision: Drodge v. Kozak, 2011 BCSC 1316; Trites v.
Penner, 2010 BCSC 882; Lindal.
[146] In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A. set out a
non-exhaustive list of factors to be considered in awarding damages under this
head. They include: the plaintiffs age; the nature of the injury; the
severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle; and the
plaintiffs stoicism.
[147] I do not
propose to reiterate my summary of the nature and progression of Ms. Fontaines
injuries or of the adverse toll they have taken on her life. Suffice it to say
that her low back symptoms have emerged as the most painful and functionally
limiting of her injuries. They produce fluctuating degrees of chronic pain,
have compromised her overall endurance and reduced her tolerance for her social
and leisure activities. Ms. Fontaine is a young, newly married woman who
is unable to be intimate with her husband in the way she was before the
Accident. While she is not immobilized or completely disabled by any stretch,
pleasurable things such as travelling, dinners and movies with her husband, and
other outings, are more difficult and some, like dancing, have been largely
abandoned.
[148] The
ill-effects of the Accident have all but completely prevented Ms. Fontaine from
participating in the intense physical activities that she once enjoyed,
including the game of hockey. With reference to hockey, the opinion of the
occupational therapist, Nancy Scullion, discussed later in my Reasons, mentions
that Ms. Fontaine reported an intention to pursue a hockey career after
she returned to Kamloops in late 2006. It also states that she expressed aspirations
of transferring to the varsity team at the University of Calgary and eventually
joining the Canadian Womens Hockey Team or a professional European league. Mr. Fontaine
testified to his understanding that after she left RMU, his daughter planned to
play for Mount Royal College in Calgary. There was no evidence that she took
any steps in that regard prior to the Accident. Indeed, I heard virtually
nothing of these or similar plans from Ms. Fontaine at trial. While
I accept that at one time she may have held that intention at least in a
general way, I find that it changed before the Accident when she started
dating Mr. Kaliszewski and they began planning for their own future as a
couple. Moreover, there was no cogent evidence that after her failed semester
at TRU, she held any genuine desire to continue her higher education at an
institution in Calgary or elsewhere.
[149] Bound up
in the cascading sequelae that all too commonly occurs with soft tissue spinal
injury and chronic pain, Ms. Fontaines injuries have contributed in a
significant way to her considerable weight gain, damaged self-perception and
downcast mood.
[150] Although
her pain waxes and wanes, Ms. Fontaine is seldom free from it. As I have
observed before, enduring the experience of chronic pain, even when it
manifests intermittently and ranges from mild to moderate as in Ms. Fontaines
case, compels unwelcome adjustments to life and lifestyle, and takes a toll on the
ordinary pleasures of life.
[151] There can
be no question that the Accident has negatively impacted the quality and enjoyment
of Ms. Fontaines life.
[152] Dr. Nwaka
holds the view that if Ms. Fontaines condition does not improve with
rehabilitative therapy, she will be left with a long-time continuing problem.
At the time he authored his report, Dr. Pacquette was also hopeful that Ms. Fontaine
would benefit from physiotherapy and core muscle strengthening. While he
considered it too early to provide a prognosis, his belief is that in light of the
duration of Ms. Fontaines symptoms her prognosis for a full recovery was guarded.
The evidence suggests that the physiotherapy she has undertaken at the Blackgold
clinic has therapeutic value. I appreciate that it is most unlikely that Ms. Fontaine
will completely recover to her symptom-free former self, even if she diligently
follows through with the recommended course of physiotherapy, which she stated a
firm intention to do. The recommended therapy is not a cure. Even so, I think
it reasonable to infer that so long as she remains committed to the additional
six months of intensive physiotherapy favoured by Dr. Meerholz and
maintains her program of stretching and exercising at home, there is a real
prospect of an improved outcome over time.
[153] I have
reviewed all of the cases placed before me by counsel. I do not propose
to review them in any detail as they provide general guidelines only and none
of them, particularly those relied on by the defendants, are on all fours with Ms. Fontaines
circumstances.
[154] Having
considered the totality of the evidence and the application of the governing
principles, it is my opinion that a fair and reasonable award for Ms. Fontaines
non-pecuniary damages is $75,000.
·
Cost of Future Care and Loss of Housekeeping Capacity
[155] Damages
for the cost of future care are meant to compensate for a financial loss
reasonably incurred by an injured plaintiff to sustain or promote her mental
and/or physical health: Gignac v. ICBC, 2012 BCCA 351 at para. 30.
The services and items must be justified as reasonable in the sense of being
medically required or justified, and in the sense that the plaintiff will be
likely to incur them based on the evidence: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), affd (1987), 49 B.C.L.R. (2d) 99 (C.A.); Izony v. Weidlich,
2006 BCSC 1315; Kuskis v. Tin, 2008 BCSC 862.
[156] The
approach to be taken in assessing future care costs was settled by the Supreme
Court of Canada in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9,
at paras. 21-22:
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 persons 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.
The resulting award may be said
to reflect the reasonable or normal expectations of what the injured person
will require. Jane Stapleton, The Normal Expectancies Measure in Tort Damages
(1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort measure of
compensatory damages may be described as the normal expectancies measure, a
term which more clearly describes the aim of awards of compensatory damages in
tort: namely, to re-position the plaintiff to the destination he would normally
have reached … had it not been for the tort. The measure is objective,
based on the evidence. This method produces a result fair to both the claimant
and the defendant. The claimant receives damages for future losses, as best
they can be ascertained. The defendant is required to compensate for those
losses. To award less than what may reasonably be expected to be required is
to give the plaintiff too little and unfairly advantage the defendant. To
award more is to give the plaintiff a windfall and require the defendant to pay
more than is fair.
[157] Recommendations
made by a medical doctor or by other health care professionals are relevant in
determining whether an item or service is medically justified: Gregory v.
ICBC, 2011 BCCA 144 at para. 38. An evidentiary link between the
medical assessments and the recommended treatment is essential: Gregory
at para. 39; Gignac at paras. 31-32. General contingencies and
those specific to the plaintiff are to be taken into account where and as appropriate:
Gignac at para. 52.
[158] Nancy Scullion
has considerable expertise as an occupational therapist in evaluating physical
functioning related to work and life outside of work. She completed an
occupational therapy assessment in Ms. Fontaines home on July 16,
2012, from which she produced a written report admitted as expert opinion
evidence at trial.
[159] It is
important to note at the outset that, for the purposes of her opinion, Ms. Scullion
did not delve into the causation of Ms. Fontaines injuries or limitations.
[160] In Ms. Scullions
view, Ms. Fontaine presented with several physical and functional
restrictions as summarized below:
(1) inability
to sit for more than 60 to 75 minutes at a time, corresponding to the lower end
of the category of Occasional, which is defined as less than 33% of an eight
hour day;
(2) inability
to complete static and dynamic standing tasks on more than an Occasional basis;
(3) inability
to complete squatting tasks on more than an Occasional basis, with heavy
reliance on external supports such as a counter for balance, stability and to
grade movement;
(4) inability
to tolerate static or sustained bending/stooping on even an Occasional basis;
(5) inability
to safely negotiate stairs while carrying items;
(6) fear
of pain and reinjury, severe depression and severe anxiety;
(7) abnormal
standing posture and gait pattern; and
(8) inability
to lift and carry items within the demands of the Limited Strength
classification using one hand on even an Occasional basis, and inability beyond
the Limited Strength definition when using both hands on more than an
Occasional basis.
[161] Ms. Scullion
determined that Ms. Fontaine was able to complete some aspects of light
home maintenance and house cleaning tasks. However, her view is that Ms. Fontaine
would not be able to perform certain of those tasks that required her to lift,
carry, bend, stoop, stand or sit beyond the limitations noted above. In Ms. Scullions
opinion, this assortment of restrictions negatively impinged on Ms. Fontaines
ability to do many ordinary chores, such as changing bed linens, washing
floors, vacuuming, washing walls, bathtubs and shower stalls, carrying laundry
up and down the stairs to and from the laundry room, loading and unloading the
dishwasher, and to complete heavier housekeeping tasks such as spring and fall
cleaning.
[162] Relying on
her own assessment in conjunction with her review of the medical reports, Ms. Scullion
concluded that a number of services and equipment were reasonable and necessary
to facilitate Ms. Fontaines functional rehabilitation and independence.
Darren Benning, an experienced economist with PETA Consultants Ltd., provided
an expert report setting out the estimated lump sum present values (inclusive
of applicable taxes) of the future care costs identified by Ms. Scullion.
Set out below is an overview of the type and cost of the future care items
recommended by Ms. Scullion with Mr. Bennings present value
estimations. Their combined evidence yielded a total present value cost
(excluding the home gym equipment and psychological counselling, as explained
below) of $310,859, plus live-in nanny costs in the amount of $35,146.
1.
Physical Therapy
[163] Ms. Scullion
endorsed Dr. Nwakas recommendation that Ms. Fontaine participate in
the physical therapy program three days per week for eight to eleven weeks. She
shares the view that this therapy is reasonably required in order to address
both Ms. Fontaines back symptoms as well as her neck. She also
anticipates that Ms. Fontaine will have a periodic need for physiotherapy throughout
her lifetime.
·
cost of initial program = $1,821.00
·
cost of ongoing reassessments every two years from year 3
until age 80, with three therapeutic sessions each time = $3,422.
2.
Massage/Chiropractic Therapy
[164] Based on Ms. Scullions
assessment of Ms. Fontaines physical limitations, presentation and pain,
she recommended both massage therapy and chiropractic treatment. She
understood that Dr. Nwaka also endorsed those modalities. In her report, Ms. Scullion
showed the treatment duration as being unknown; however, Mr. Benning
annualized them over the remainder of Ms. Fontaines lifetime.
·
annual cost of 12 sessions at $72.50 per = $870 per year,
totalling $21,462 over Ms. Fontaines lifetime.
3.
Homemaking Services
[165] Ms. Scullions
opinion is that given Ms. Fontaines impairments, she would benefit from
the provision of homemaking services. She estimated a requirement for a team
of two or three housekeeping staff on a weekly basis to perform regular domestic
tasks, and twice per year to take care of the heavier cleaning. The
housecleaning services offered in Fort McMurray were the most expensive Ms. Scullion
had come across in her career. The cost of weekly assistance averaged $192.50,
amounting to an annual cost of $10,106, if used 50 weeks per year. Allowance
for two heavy cleaning sessions each year added another $1,365 annually. Mr. Benning
calculated the present value of those costs until Ms. Fontaines 80th
birthday as $241,117 for regular housekeeping plus $32,566 to cover the semi-annual
heavy chores for an aggregate sum of $273,683.
4.
Live-In Nanny Services
[166] It is Ms. Scullions
opinion that Ms. Fontaines limited physical tolerances and expressed
desire to have two or three children warrants the provision of a live-in nanny
with the arrival of each child from birth to four years of age. She recognized
that the nanny would do the laundry and carry out regular light housekeeping chores
in addition to caring for the children, and therefore the employment of a nanny
would decrease Ms. Fontaines housekeeping requirements. Ms. Scullion
did not account for that overlap in her report; however, Mr. Benning
addressed it in his. He calculated the cost of the nanny services suggested by
Ms. Scullion ($75,320) and deducted from that figure what he estimated as
the amount to be saved by the nanny performing those of regular domestic
services ($40,174), leaving the estimated present value of the projected cost
of a live-in nanny at $35,146.
5.
Psychological Counselling
[167] Ms. Scullion
administered a series of what I am satisfied represent standardized
questionnaires to determine Ms. Fontaines subjective experience of pain, her
fear of pain and her perception of its interference in key aspects of her daily
life, as well as her levels of anxiety and depression. She concluded that Ms. Fontaines
test scores were suggestive of severe depression and anxiety and that she was
in need of intervention in terms of her perception and experience of pain. For
the reasons given below, no award will be made for psychological counseling and
thus there is no purpose in reciting Mr. Bennings cost projections.
6.
Weight Watchers Program
[168] In light
of Ms. Fontaines significant weight gain in the aftermath of the Accident
and her persistent low back pain, Ms. Scullion recommended that she be
provided costs associated with a weight loss program, in this case Weight
Watchers.
·
one time cost for 18 months = $445.
7.
Home Gym Equipment
[169] As Ms. Fontaine
acquired a home gym prior to trial, I have addressed this cost under the
heading of special damages.
8.
Additional Items
[170] Ms. Scullion
recommends:
·
a portable ergonomic seating system to support Ms. Fontaines
back at work, home and in the car, to be replaced on average every 12.5 years
initial outlay plus replacement every 12.5 years = $568;
·
back and seat cushion initial outlay plus replacement every 7.5 years
= $447;
·
steam mop initial outlay plus replacement every 9 years =
$504;
·
self-propelled lawn mower one time outlay = $551;
·
bathtub wall grab bars one time outlay = $105;
·
step stool initial outlay plus replacement every 12.5 years =
$93;
·
pregnancy back support with each pregnancy $55.
9.
Medications
[171] Ms. Fontaine
reported to Ms. Scullion that she had derived a degree of benefit from the
topical application of an analgesic lotion to her back and neck. Ms. Scullion
determined that she would require an average of two 4-ounce tubes per month over
an unknown duration. The yearly cost of $312 replenished annually amounted to
a present value of $7,702 over her lifetime.
·
Conclusions about Ms. Fontaines Cost of Future Care
[172] Based on
the recommendations of the medical experts digested in the context of the whole
of the evidence, and taking into account the relative contingencies, I am
satisfied that the reasonable expenses set out below represent therapies, services
and items that would be beneficial to Ms. Fontaine and promote her health
and well-being, are medically justified within the meaning contemplated by the
authorities and are likely to be incurred. I have expressed these
reasonable costs in present day values.
1.
Physical therapy
[173] Drs. Nwaka
and Meerholz both recommended that Ms. Fontaine participate in courses of intensive
physiotherapy. At the time of trial, Ms. Fontaine had just completed the
eight weeks of therapy recommended by Dr. Nwaka. As recently as August 1,
2012, Dr. Meerholz suggested that she undergo additional physiotherapy for
another three to six months at a frequency of three times per week (a range of
36 to 72 appointments). Dr. Pacquette also believed that Ms. Fontaine
would benefit from core muscle strengthening and other physiotherapy endeavours.
He did not place a time span or limitation on that treatment.
[174] The
evidence establishes that although Ms. Fontaines symptoms have certainly
not resolved from her physiotherapy program at Blackgold, those treatments have
provided her with temporary symptomatic relief and seem to be somewhat superior
to the benefits she had derived from the massage therapy alone or, at a
minimum, complement that modality. Ms. Fontaine credibly confirmed that
she is prepared to follow the advice that she continue with further
physiotherapy for an additional three to six months. Her treatments at Blackgold
plus an additional six months of physiotherapy as recommended by Dr. Meerholz,
are medically justified and reasonable. To that end, I award her the sum
of $4,400.
[175] In the
circumstances, including the nature of Ms. Fontaines physical condition,
the persistence of her low back injury, her long work days and relatively
guarded prognosis, I consider Ms. Scullions recommendation that she
be further assessed and treated to be a reasonable and prudent step toward achieving
a sustained improvement. However, the evidence does not justify the
recommendation that she undergo such appointments for years into the future. For
the additional physiotherapy, I award the sum of $400.
2.
Massage and Chiropractic Treatment
[176] Dr. Nwaka
prescribed monthly massage alternating with chiropractic sessions in the hope the
treatments would assist Ms. Fontaine in maintaining some quality of life.
The evidence shows that she has pursued massage therapy with far greater
regularity than chiropractic care. I am not satisfied that Ms. Fontaine
has any intention of incurring future chiropractic costs on account of her
Accident-induced injuries, or will do so. Accordingly, no award is made toward
the cost of that future care item.
[177] The
opposite is true with respect to future massage treatments. In my view, regular
sessions over the next 24 months will likely complement Ms. Fontaines
physiotherapy and help ameliorate her symptomatic discomfort and provide other
positive benefits. For that, I award the sum of $1,680.
3.
Psychological Counselling
[178] The
difficulty with respect to this item is that I have no cogent evidence
that Ms. Fontaine has any interest in receiving or attending counselling.
Demonstrating her likelihood to incur such costs is an essential ingredient and
its absence is fatal to her claim.
4.
Housekeeping and Nanny
[179] Ms. Scullions
opinion is remarkable in its identification of the nature, degree and projected
duration of the limitations and impairments that Ms. Fontaine is said to
experience. I have formed the view that in some instances this is the
result of Ms. Fontaines tendency to overly focus on her symptoms and overstate
their intensity and the extent of the sequelae of the Accident, as opposed to
any flaw in Ms. Scullions mode of analysis.
[180] I find, for
example, the purported physical limitation of Ms. Fontaine not being able
to sit for more than one-third of an eight-hour working day is completely at
odds with the reality of her daily functioning at her sedentary job. Between
her working hours and commuting, she sits for 15-16 hours each day,
16 days in a row. While the evidence supports an inference that she is
able to periodically leave her chair and move around while in the office, and
I accept that at the end of her 16-day shift it takes her a day or two to
recover, all of which is material to the issue of her functioning, the preponderance
of the evidence satisfies me that Ms. Fontaine is perfectly able to remain
seated for more than 75 minutes at a time and over a span of considerably more
than one-third of an eight-hour day without compromising her function.
[181] The area
of Ms. Fontaines housekeeping need is particularly flawed. For the
purposes of her report, Ms. Scullion assumed that Ms. Fontaine would
require a team three times a week, 50 weeks a year. The fact of the
matter is that for nearly five years after the Accident, other than using a
cleaning service to clean her fathers dirty home when they purchased it, Ms. Fontaine
was able to make do with the sporadic help of her sister and recently a tenant
to mow the lawn and without engaging any outside housekeeping services. She
and her husband did not hire a housekeeper until the summer of 2012 when they
moved into their larger home, and even then, they only use those services once
every three weeks or so, despite the fact that they can well afford more. Another
hurdle is that there was no cogent evidence that Ms. Fontaine would
actually employ such services with that frequency. The evidence, including Ms. Fontaines
own testimony, is not convincing that she requires, or even desires, cleaning
assistance at the rate of three times per week, 50 weeks of the year.
[182] It appears
that one of the assumptions underlying Ms. Scullions recommendation is
that, due to his work schedule, Mr. Kaliszewski is rarely home to help
with domestic chores and maintenance. That was not borne out by the evidence.
Additionally, Mr. Kaliszewskis testimony about the many day-to-day
housekeeping tasks that Ms. Fontaine is able to functionally perform (meal
preparation, purchasing groceries, wiping kitchen and other surfaces, some
vacuuming, wet mopping the floors) is inconsistent with a reasonable need for paid
housekeeping practically every other day for two adults. This disconnect
becomes even more pronounced in light of the fact that I am awarding Ms. Fontaine
costs for the purchase of certain adaptive cleaning aids to help her carry out
domestic tasks, such as a self-propelled lawn mower and a steam mop.
[183] I am not
persuaded of Ms. Fontaines requirement for housekeeping services on the
scale recommended by Ms. Scullion. In fairness to Ms. Scullion,
it must be said that all of her recommendations were explicitly stated to be
subject to modification if Ms. Fontaines status were to change.
[184] Although
far from certain, there remains in the minds of the physician experts some
prospect for a qualified optimistic outcome for Ms. Fontaine provided she
remains committed to the recommendation for extensive physiotherapy. At the
same time, the evidence demonstrates the chances are low for a realistic
possibility that she will be able to carry out household chores on the
demanding end of the spectrum, such as heavy cleaning and scrubbing, within the
foreseeable future. Despite the several deficiencies associated with the
estimation of the future cost of housekeeping services for Ms. Fontaine, it
cannot be legitimately denied that her ability to perform all domestic chores
and aspects of ordinary yard maintenance has been impaired by her injuries. In
my view, the preferred approach to appropriately compensate her is as a standalone
award for the loss of her housekeeping capacity.
[185] The
leading decisions concerning a claim for loss of housekeeping capacity are Kroeker
v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.), a decision of a five-member
panel of the Court of Appeal, and McTavish v. MacGillivray, 2000 BCCA
164.
[186] In McTavish,
Huddart J.A. comprehensively surveyed the majority and minority decisions
in Kroeker, as well as other pertinent authorities, and summarized the
essential principles in relation to past and future loss of capacity claims. At
para. 43, her Ladyship emphasized the important point that claims for loss
of housekeeping capacity are distinct from claims respecting the plaintiffs
future cost of care:
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.
[187] Because an
award for the loss of housekeeping capacity reflects the loss of personal
capacity, which is an asset, the issue of whether the plaintiff had used
replacement services or is likely to hire such assistance in the future does
not inform the analysis. That distinguishes those damages from future cost of
care awards as recently affirmed by Kirkpatrick J.A. in OConnell v. Yung,
2012 BCCA 57 at para. 67:
Damages for the cost of
future care serve a different purpose from awards for loss of housekeeping
capacity. Unlike loss of housekeeping capacity awards, damages for the cost of
future care are directly related to the expenses that may reasonably be
expected to be required (Krangle at para. 22). Determining the
amount of a reasonable cost of future care award entails a unique set of
considerations, as Professor Cooper-Stephenson explains at 416:
It is clear that both the need
and the opportunity for the expenditure of moneys is relevant to the
assessment. Therefore, if the plaintiffs medical condition may require care
of a less expensive nature such as institutional care then the award for
future cost of care should reflect that possibility. Equally, it would seem,
if the evidence is not conclusive that more expensive care will be available,
or that the plaintiff will find such care to be physically and emotionally
satisfactory, then the award should reflect those possibilities; the reduced
award will then reflect the best estimate of what will be reasonably necessary
to provide optimum care. In this sense, the court is bound to look to the
actual spending potential of the plaintiff.
[188] Keeping in
mind that an award for the loss of housekeeping capacity is meant to compensate
Ms. Fontaine for her diminished loss of capacity the loss of her asset
and is not a precise mathematical calculation, and taking into account the
relevant contingencies supported by the evidence as best I am able,
I conclude that the sum of $40,000 is a fair award to reflect the whole of
Ms. Fontaines loss of housekeeping capacity. It should go without saying
that I have not included any part of this award in the assessment of Ms. Fontaines
non-pecuniary damages.
[189] The
provision of live-in nanny services engages an interesting and important
remoteness of damages issue. That issue was poorly developed in the evidence
and entirely absent from final argument. It need not be explored in this case,
however, because Ms. Fontaine testified that if she and her husband have
children their plan would be to hire a nanny to enable Ms. Fontaine to
return to work for reasons that are largely financial and unconnected to the
Accident.
5.
Remaining Cost of Future Care Items
[190] Ms. Fontaine
has also established her entitlement to the following:
·
Weight Watchers program $445.00
·
Portable ergonomic seating system initial outlay only $231.00
·
Steam mop initial outlay only $157.00
·
Self-propelled lawn mower one time outlay $551.00
·
Back and seat cushion initial outlay only $120.00
·
Analgesic lotion $500.00
[191] Regarding
bathtub wall grab bars, Ms. Scullion suggested that Ms. Fontaine
required them to address periods of dizziness she is said to sometimes
experience and reports of falls while getting into and out of the bathtub.
There was virtually no cogent evidence at trial of those events. Even so, the
implementation of those safety bars in Ms. Fontaines bathtub strikes me
as entirely reasonable in the overall objective of promoting her physical
health, given her difficulties squatting, bending, stooping and sitting, all stemming
from her low back injury. I award the sum of $105 for that apparatus.
[192] Leaving to
the side the potentially vexing question of the remoteness of the cost of a
pregnancy back support, it is disallowed on the basis there was no evidence to
explain the need for such support in addition to the allowed costs for the back
and seat cushions and portable back support system.
·
Loss of Earning Capacity
[193] The legal
framework that informs an award for loss of earning capacity was helpfully
summarized by Dardi J. in Midgley at paras. 236-240:
The recent jurisprudence of the Court of Appeal has affirmed
that the plaintiff must demonstrate both an impairment to his or her earning
capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a capital
asset approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. Regardless
of the approach, the court must endeavour to quantify the financial harm
accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y. at para. 183.
As enumerated by the court in Falati v. Smith,
2010 BCSC 465 at para. 41, affd 2011 BCCA 45, the principles which inform
the assessment of loss of earning capacity include the following:
(i) The standard of proof in
relation to hypothetical or future events is simple probability, not the
balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
Hypothetical events are to be given weight according to their relative
likelihood: Athey at para. 27.
(ii) The court must make
allowances for the possibility that the assumptions upon which an award is
based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 at 79 (S.C.), affd (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which
supports a contingency must show a realistic as opposed to a speculative
possibility: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).
(iii) The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment is
based on the evidence, taking into account all positive and negative
contingencies. The overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
Although a claim for past loss of income is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39. It is
compensation for the impairment to the plaintiffs past earning capacity that
was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras.
31-32; X. v. Y. at para. 185.
While the burden of proof relating to actual past
events is a balance of probabilities, a past hypothetical event will be
considered as long as it was a real and substantial possibility and not mere
speculation: Athey at para. 27.
This court in Falati at
para. 40 summarized the pertinent legal principles governing the
assessment of post-accident, pre-trial loss of earning capacity and concluded
that:
[40] … the
determination of a plaintiffs prospective post-accident, pre-trial losses can
involve considering many of the same contingencies as govern the assessment of
a loss of future earning capacity. … As stated by Rowles J.A. in Smith
v. Knudsen, 2004 BCCA 613, at para. 29,
What would have happened in
the past but for the injury is no more knowable than what will happen in the
future and therefore it is appropriate to assess the likelihood of hypothetical
and future events rather than applying the balance of probabilities test that
is applied with respect to past actual events.
[194] The law
has long recognized that unknown contingencies and uncertain factors make it
impossible to calculate lost opportunities and a loss of earning capacity with
any precision: Erickson v. Sibble, 2012 BCSC 1880 at para. 271.
It is because the occurrence of hypothetical and future events is unknown that
allowances must be made for relevant and realistic positive and negative
contingencies.
[195] Ms. Fontaine
does not seek damages for loss of earnings or lost earning capacity prior to
trial.
[196] As to her
claim for loss of future capacity, Ms. Fontaine contends that the Accident
is responsible for an impairment of that capacity in that some occupations will
be closed to her, and it is impossible to say that over the span of her entire
working life, the impairment will not harm her income earning ability. Ms. Fontaine
proposes that her diminished capacity be
quantified by reference to the factors that inform the capital asset
approach laid out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).
On that basis, she asserts entitlement to the sum of between $60,000 and
$75,000.
[197] The
defences simple counterpoint is that she has failed to prove any loss under
this head.
[198] My task is
to compare the likely future of Ms. Fontaines working life if the
Accident had not happened, to her likely future working life after the
Accident: Gregory at para. 32.
[199] The only
job Ms. Fontaine was unable to perform due to her injuries was the
entry-level position of call clerk that she held on a probationary basis at the
time of the Accident. Other than that, she has been able to work on a
full-time basis and has missed no time from work on account of her injuries
since the Accident. Ms. Fontaine has applied for and succeeded in
obtaining and keeping the jobs that she desired in the past number of years.
There is nothing persuasive in the evidence to suggest that state of affairs
might change or that her symptoms will worsen over time. There is no evidence
that she has foregone opportunities, missed promotions or advancements or lost
bonuses due to her injuries. Her income has increased significantly since the
Accident, effectively doubling since 2010.
[200] While
I accept that working her long day shifts can cause Ms. Fontaine discomfort
and is more physically draining on her because of the ill-effects of the
Accident, the concomitant pain, suffering and loss of enjoyment of life can be
adequately reflected in the measure of her non-pecuniary damages. I have
taken these factors into account in quantifying her loss under that head.
[201] Ms. Fontaine
has failed to prove a real and substantial possibility that the injuries caused
by the Accident will generate a pecuniary loss. Accordingly, she is not
entitled to an award of damages under this head.
·
Special Damages
[202] Ms. Fontaine
is permitted recovery of the out-of-pocket expenses she reasonably incurred as
a result of her injuries. Her entitlement is derived from the fundamental
principle that an injured person is to be restored to the position she would
have been in had the negligence not happened: Milina at 78.
[203] Most of
the expenses Ms. Fontaine has incurred are not being claimed because they
were covered by her husbands health plan. Her primary special expense and it
is contentious is the cost of her home gym and related equipment purchased in
June 2012 for the sum of $7,706.54. Before they acquired the equipment,
she and her husband consulted a certified personal trainer and Ms. Fontaine
discussed the matter with her physiotherapist.
[204] Mindful of
Ms. Fontaines current physical status, the need to complete her home
strengthening and stretching, her work schedule and weight gain, Ms. Scullion
opined that certain features of the home gym are beneficial for her current and
anticipated rehabilitation. Among the pieces of equipment that she believes
has therapeutic value are the pulley cable system, elliptical, bench presses
with weight plates, and mats. The aggregate cost of those items is $4,445.88
and that is the amount that Ms. Fontaine seeks to recover.
[205] The
evidence establishes that in the months leading up to trial that Ms. Fontaine
had access to the equipment, she used only some of the features and then very
rarely. For example, she tried the elliptical on the lowest level on
approximately four or five occasions. She has also made a few attempts to use
the pulley cable system to strengthen her arms, as well as the attachments
designed to work her core. I accept Mr. Kaliszewskis testimony that
he and his wife genuinely believed that she would be able to use the equipment
more fully and frequently, but to date their expectation has not panned out
because of the limitations imposed by Ms. Fontaines injuries. Mr. Kaliszewski,
on the other hand, use the majority of the component parts of the gym all of
the time.
[206] In my
view, the majority of the gym components endorsed by Ms. Scullion were
reasonably incurred for Ms. Fontaines therapeutic benefit and to enhance
her rehabilitation. Although her progress has been slow and discouraging to
date, she has expressed an intention to persevere. Given Ms. Fontaines
lifelong athleticism, I think it reasonable to infer that she will remain
committed to trying to use the home gym with the prospect that she will
gradually be able to avail herself of longer and more varied workouts,
particularly as she moves through her physiotherapy program. While Mr. Kaliszewski
presently uses most of the equipment, the evidence does not indicate that it
was purchased for his benefit. The fact that he is able to use the equipment
reasonably purchased to promote Ms. Fontaines improvement does not negate
the legitimacy of her claim for recovery or diminish the amount for which she
should be reimbursed. In my view, Ms. Fontaine is entitled to recover the
amount of $4,445.88 for that expenditure.
[207] Ms. Fontaine
also seeks reimbursement of the sum of $840, which represents the cost of thoroughly
cleaning their current home before taking possession. She testified that the
house was quite dirty when her father moved out and that she was not
physically able to do the cleaning required. The applicable invoice indicates
that most of the cleaning performed would qualify as heavy chores, such as
steam cleaning the carpets, cleaning windows, scrubbing walls, baseboards,
floors and the inside of the oven and fridge, and vacuuming the floors and
walls. I am satisfied this qualifies as a reasonable out-of-pocket
expense and is properly recoverable by Ms. Fontaine.
[208] In sum,
I award Ms. Fontaine the amount of $5,285.88 in special damages.
Mitigation
[209] Ms. Fontaines
positive duty to take reasonable steps to minimize her losses brought about by
the Accident is well-settled: Janiak v. Ippolito, [1985] 1 S.C.R.
146; Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618; Shapiro v.
Dailey, 2012 BCCA 128; Gregory at para. 56. The burden of
proof to show she has failed to discharge her duty rests on the defendants.
[210] The law
does not hold Ms. Fontaine to a high standard of conduct in mitigation.
It is satisfied if she has taken reasonable steps in the circumstances to
reduce her loss. The second essential element of the test requires the defence
to prove that, had Ms. Fontaine followed the recommended treatment, her
losses would have been reduced: Gregory at para. 56.
[211] The
defence contends that Ms. Fontaine failed to reasonably mitigate her
losses by failing to comply, until mid-June 2012, with the recommendation
made by more than one of her treating physicians over the course of a number of
years that she follow the basic treatment option of physiotherapy.
[212] In the
early aftermath of the Accident, Ms. Fontaine complied with the advice to
have massage therapy but was unable to afford physiotherapy. As it was, she
had to borrow money from her parents to pay for her massages. She later
implemented home exercises and stretches in addition to receiving periodic
massage treatments. In my view, until Dr. Meerholz made his second
recommendation to Ms. Fontaine on May 12, 2010 that she partake in
intensive rehabilitation that included physiotherapy, she had not acted unreasonably
in all the circumstances. However, it was unreasonable for her not to adhere
to Dr. Meerholzs second recommendation made nearly a year after his
initial recommendation and in circumstances where her symptoms persisted and continued
to interfere with the enjoyment of most facets of her life. There is no
evidence to suggest that at that time Ms. Fontaine was not able to afford
such treatments or had any reasoned excuse not to pursue Dr. Meerholzs
recommendation.
[213] The
combined evidence of Ms. Fontaine and her husband is that the course of
physiotherapy she finally started a few months before trial has produced some
positive effects although, so far, they are only temporary. Ms. Fontaine
testified that on her days off, when she is able to attend physiotherapy and
massage appointments she feels much better. Having now received physiotherapy,
she is sufficiently hopeful about its therapeutic value to commit to Dr. Meerholzs
recommendation that she engage in a further treatment regimen.
[214] In
assessing Ms. Fontaines damages, I was persuaded that her completion
of six more months of physiotherapy could improve her condition and positively
influence her overall prognosis. In all the circumstances, I think it is
reasonable to infer that the same prospect to one degree or another was present
in May 2010 when she received Dr. Meerholzs advice. A reasonable
plaintiff in Ms. Fontaines shoes would have followed such advice and Ms.
Fontaine has acted unreasonably in not doing so.
[215] Unfortunately,
it is not anticipated that physiotherapy will cure Ms. Fontaines low back
injury. However, on the whole of the evidence, I consider it more
probable than not that had she incorporated an appropriate regimen of
physiotherapy around the time that Dr. Meerholz recommended it a second
time in 2010, the ill-effects of the Accident would have been somewhat reduced
and, in turn, her non-pecuniary losses would have been somewhat less.
[216] In arriving
at these conclusions, I have not overlooked the fact that Dr. Meerholzs
second recommendation was for Ms. Fontaine to complete a spinal
rehabilitation program where physiotherapy was only one component along with
massage and exercise.
[217] All things
considered, it is my view that a small downward adjustment of 5% should be made
to Ms. Fontaines non-pecuniary damages as a result of her failure to
mitigate. I am not persuaded of any principled basis to reduce her other
heads of damages.
COSTS
[218]
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of November 25, 2013.
__________ Ballance
J.___________
Ballance J.