IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131122

Docket: 45910

Registry:
Kamloops

Between:

Susan
Levens

Plaintiff

And

Darcell
Marie Lehmann

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

INTRODUCTION

[1]            
In the late afternoon of September 28, 2009, the plaintiff, Susan
Levens, was driving her motor vehicle on Fortune Drive in Kamloops, British
Columbia. Her partner, Richard King, was sitting beside her in the passenger
seat of her vehicle. Ms. Levens and Mr. King were both wearing their seatbelts.

[2]            
As Ms. Levens was driving down Fortune Drive, a stop light turned red.
Ms. Levens came to a stop behind several vehicles that were waiting at the stop
light. While stopped, Ms. Levens and Mr. King were having a conversation. Ms.
Levens’ head was turned to the right; Mr. King’s head was turned to the left. Suddenly
and without warning, the defendant’s vehicle struck the rear end of Ms. Levens’
vehicle. Ms. Levens alleges that she was injured and as a result she seeks
damages.

[3]            
At the time of impact, Ms. Levens’ hands were on the steering wheel and
her foot was on the brake. Upon impact, Ms. Levens’ neck and upper back were
pushed sideways. The same occurred to Mr. King. Neither of them hit anything
inside the vehicle. Ms. Levens’ vehicle did not hit the car in front of her.

[4]            
Ms. Levens then turned her vehicle onto Holly Avenue. She got out of her
vehicle and spoke to the defendant who apologized to Ms. Levens, and stated
that she must have been daydreaming. Immediately, Ms. Levens noticed that she
had a bad headache that travelled up the back of her head. Despite the
accident, she and Mr. King drove to see Ms. Levens’ mother as planned. Ms.
Levens cut the visit with her mother short as she was feeling sick.

[5]            
Ms. Levens testified that the defendant was driving at 70 kilometres per
hour. She bases this evidence on her experience of the speed at which others
drive in this area. Ms. Levens testified that she did not see the defendant’s
vehicle until after it hit her. No other evidence as to the defendant’s speed
was given. This evidence regarding speed is speculative. I do not accept that
the defendant was travelling at 70 kilometres per hour.

[6]            
After the accident, Ms. Levens’ headache lasted for a period of twelve
days during which she spent most of her time resting on a couch. The day after
the accident, her mid-lower back, just below the belt line, and her neck were
sore.

[7]            
There is no issue that the defendant is liable.

[8]            
Ms. Levens seeks non-pecuniary damages, cost of future care, special
damages and costs.

[9]            
Ms. Levens filed receipts for all the expenses she incurred as a result
of the accident, which total $2,365.61. She was not cross-examined on these
expenses. I find that all the expenses, that is the sum of $2,365.61, were
incurred as a result of the accident.

[10]        
The damage to both the plaintiff and the defendant’s vehicles was small.
The cost to repair Ms. Levens’ vehicle was approximately $1,400.00. The defence
is not arguing that the limited damage to Ms. Levens’ vehicle is indicative of
minor injuries to Ms. Levens.

POSITIONS

The Plaintiff

[11]        
Ms. Levens is seeking damages for the injuries she alleges she suffered
in the accident. These injuries are to her neck and lower back. She alleges
that she has a herniated disc at the C5 – C6 spinal level as a result of the
accident. She acknowledges that the injury to her back existed prior to the
motor vehicle accident and that the long-term effect of her back would be the
same despite the accident. She claims that as a result of the accident she
suffered pain in her back for a period of time.

[12]        
In her testimony, Ms. Levens mentioned hip pain from time to time. However,
counsel for Ms. Levens stated that the hip pain is not to be considered.

The Defendant

[13]        
Although the defendant acknowledges that Ms. Levens was injured, she argues
that Ms. Levens’ present condition is a result of a pre-existing condition that
was symptomatic and ongoing prior to the accident. The defendant argues that
the motor vehicle accident probably aggravated Ms. Levens’ low back injury. The
defendant’s position is that Ms. Levens’ neck problems did not arise or reoccur
until years after the accident.

MS. LEVENS’ BACKGROUND

[14]        
Ms. Levens is 69 years old. She completed grade 10 and secretarial
school. She worked as a secretary for 35 years and as a landscaper for nine
years. She retired in 1998 because her husband retired.

[15]        
She is the mother of two adult children. Ms. Levens’ second marriage
ended when her husband passed away in May of 2006. At present, Ms. Levens
resides with Mr. King in Penticton, whom she has known since November of 2007.

[16]        
In 2000, Ms. Levens and her second husband moved from Horsefly to
Kamloops. They purchased and lived in a condominium in the Westsyde area of
Kamloops. In 2000, Ms. Levens’ father passed away which resulted in her mother
moving to Kamloops. Her mother resided in the Ponderosa apartments. Ms. Levens
saw her mother five to six days a week. She did all of her mother’s shopping
and arranged all of her mother’s appointments, as well as helped her mother
with a variety of things in her suite.

[17]        
In 2004, Ms. Levens’ husband was diagnosed with cancer. Ms. Levens
became his caregiver by helping with his personal care and by driving him to
and from Kelowna for treatment. In 2005, Ms. Levens’ mother broke her hip. Her
mother moved into the condominium temporarily, where Ms. Levens provided care
not only for her husband, but also for her mother.

[18]        
After her husband’s death, she sold the condominium and moved into the
Ponderosa apartment so that she could be near and help her mother. Eventually,
her mother went into long-term care. Ms. Levens continued to care for her
mother by visiting her regularly to ensure that she was receiving proper care.

[19]        
Ms. Levens testified that her recreational activities are walking, golf,
swimming (which she particularly enjoys), and shopping. She did not describe
how often she participated in these activities.

[20]        
I accept Ms. Levens’ testimony as to how the accident occurred, what
happened to her and Mr. King in the accident, and the symptoms that she
experienced right after the accident. I also accept her evidence as to her
personal background, her past employment and the care she provided to her
mother and her husband prior to the accident. I further accept what she recalls
as to her symptoms before and after the accident.

Prior Medical Condition and History

[21]        
Ms. Levens has a long history of neck and back problems. It is not
disputed that at the time of the accident she had degenerative disc disease in
her spine.

[22]        
Ms. Levens testified that in 1965 she injured her wrist as a result of a
motor vehicle accident that occurred in Bellingham, Washington. She was
involved in a second motor vehicle accident in Williams Lake, British Columbia,
where she suffered whiplash and hurt her back. As a result of this accident,
she became more and more sore. She testified that the soreness lasted for about
two years and described the soreness as “it hurt from time to time, but not
every day.”

[23]        
In about 2000, Ms. Levens had another motor vehicle accident which
affected her ability to perform her landscaping job. It affected her in such a
way that her husband had to help her for two years in this seasonal job. This
job required Ms. Levens to work from April to October mowing lawns and maintaining
yards.

Medical Treatment Before the Accident

[24]        
In September 2004, Ms. Levens complained to Dr. Outram that for about
two months she had been waking up during her sleep with tingling and numbness
in her thumb and index finger. Dr. Outram put Ms. Levens through a number of
physical tests. Dr. Outram suspected CD radiculopathy (a disorder of the spinal
nerve root). He referred Ms. Levens to Dr. Mosewich, a neurologist and clinical
neurophysiologist.

[25]        
Ms. Levens repeated the same complaints to Dr. Mosewich that she told
Dr. Outram. She reported to him that she could trigger the pain in her forearm
by turning her neck into certain positions. Dr. Mosewich found that Surpling’s
sign was mildly positive and her range of motion (“ROM”) was “otherwise
normal”. After conducting electrophysiological studies, he states “There is a
definite evidence of left cervical radiculopathy and there is certainly no
evidence to support the possibility of medium neuropathy at the wrist”.

[26]        
Dr. Mosewich arranged for a CT scan to see if there was any evidence of
disc herniation or foraminal stenosis at the C5-6 level. A CT scan of the spine
from C-3 to T-2 also took place. The results are as follows:

FINDINGS:

C3-4 level: Normal.

C4-5 level: Normal.

C5-6 level: There is a posterior osteocartilaginous bar
causing mild compression of the anterior aspect of the thecal sac. There is
moderate bony narrowing of the left C5-6 neural foramen. No disc herniation.

C6-7 level: Normal.

C7-T1 level: There are no cervical ribs. There is no disc
herniation or spinal stenosis or foraminal narrowing.

T1-2 level: Normal.

I do not see any paraspinal soft tissue abnormality or any
abnormality in either lung apex.

OPINION: There is mild cervical
spondylolysis at the C5-6 level and there is moderate narrowing of the left
C5-6 neural foramen. In his letter to Dr. Outram dated February 10, 2005, Dr.
Mosewich, in referring to the results of the CT scan, writes “This shows an
osteocartilaginous bar at C-5/6 with some foraminal stenosis. I suspect this is
the cause of the C6 symptoms.

[27]        
Ms. Levens was referred to Olaf Stana, a physiotherapist, who saw her in
early February of 2005. She received mechanical traction treatment for her
neck.

[28]        
About a year after seeing Dr. Mosewich, Ms. Levens saw Dr. Takahashi in
the emergency room of the Royal Inland Hospital (“RIH”) with regards to left
lower motor neuron facial weakness associated with severe left shoulder and
neck pain. Her complaints developed four days before she attended the hospital.
Initially, the complaints included her right shoulder as well, but that
dissipated within two days. She developed headaches in two different areas. The
left side of her face had dysarthria. She returned to full ROM after
medication. He concluded:

In light of her history of stereotyped left shoulder pain
associated with the development of shingles I think that the most likely
explanation for her current presentation is a reactivation of varicella zoster
resulting in neuropathic pain involving her left shoulder and neck on the left
side.

I failed to mention that she has
hyperesthesia of the left side of her tongue and this can be seen occasionally
with Bell’s palsy.

[29]        
From May of 2005 until March 11, 2011, Dr. Oyler was Ms. Levens’ family
doctor. Dr. Oyler’s letter dated May 8, 2011 summarizes the treatment that he
provided to Ms. Levens up to March 11, 2011, when Ms. Levens moved to Penticton
and transferred to a new doctor. On April 5, 2007, Dr. Oyler completed a full
physical examination of Ms. Levens and he found her “generally very healthy”.
On the same date, Ms. Levens complained of a week-long period of low back pain,
sciatic nerve-like radiation of pain into her left buttock and down her left
calf, and findings of nerve root irritation. Ms. Levens testified that this was
a new sciatic problem in a different place and that the pain ran down the leg.

[30]        
On August 15, 2007, Ms. Levens was taken from her home to the hospital
by ambulance. She remained in hospital for 13 days. During her stay she was
referred to Dr. Chevalier, a neurosurgeon.

[31]        
Prior to her hospitalization, Dr. Oyler referred Ms. Levens for a CT
scan to which Dr. Chevalier referred to in his consultation report dated August
2, 2008. He writes:

She did have CT scan of lumbar
spine. This examination shows a relative stenosis at the left mobile segment.
It was termed L4-S1. I will consider her having 5 lumbar vertebrae. Hence, at
L5-S1 she does have a lateral recess stenosis. More importantly, at the left
mobile level, L4-L5, she does have a disk bulge with a fragment which has
herniated, compressing the left L5 nerve root.

Beside the heading “Impression” he writes, “Acute left L5
radiculopathy.”

[32]        
Dr. Chevalier states that he discussed surgery with Ms. Levens, but he
was of the opinion that she was not yet a candidate for surgery. Within two
weeks Ms. Levens was back in hospital with “an acute L5 radiculopathy”. Dr.
Chevalier recommended epidural blocks: she received them but they only provided
limited relief.

[33]        
As the epidural blocks did not give Ms. Levens the relief that she
needed, Dr. Chevalier recommended and performed a left microlaminectomy at the L4-5
vertebrae of her spine on November 8, 2007. The results were positive. Ms.
Levens testified that the surgery corrected the problem and “I felt better”.
She agrees with Dr. Chevalier’s observation in his report that she was doing a
lot better three months after surgery.

[34]        
In November of 2007, Ms. Levens met Mr. King. After a period of time,
she was visiting Mr. King in Penticton, travelling back and forth from Kamloops
by bus.

[35]        
Ms. Levens testified that just before the accident she was doing very
well. She had neck pain, but it was seldom. Her back was sore, but not the way
it felt at the time of the trial. Her left shoulder was fine.

[36]        
Ms. Levens was treated by Dr. Oyler for other matters unrelated to her
back or neck. Prior to the accident, her last visit to Dr. Oyler was July 31,
2008, when she complained of a sore left knee.

[37]        
Ms. Levens had chiropractic treatment before the accident. Dr. Carson’s
notes were entered into evidence upon which Ms. Levens commented. On April 23,
2007, Ms. Levens complained to Dr. Carson as having low back pain, which she
noticed when lifting a turkey out of the fridge and when lifting patio chairs.
He recalls that she felt a sharp ache with movement. Ms. Levens recalls lifting
the turkey out of the oven, but not lifting the patio chairs. Ms. Levens
acknowledged seeing Dr. Carson on November 7, 2007, that she complained of a weak
leg, and that she spoke of her anticipated surgery.

MEDICAL TREATMENT AFTER THE ACCIDENT

[38]        
On September 29, 2009, Ms. Levens reported the accident to the Insurance
Corporation of British Columbia (“ICBC”). In the Insurance Claim Application,
she described her injuries as “sore neck, lower back and headaches”.  She
describes a pre-existing injury as “sore neck sometimes after a MVA a couple of
years ago.” On the following day, she attended a walk-in clinic and complained
of the same symptoms.

[39]        
On October 1, 2009, Ms. Levens attended Dr. Carson’s office for
treatment. Dr. Carson’s notes record Ms. Levens’ description of the accident
and the symptoms of her injuries.

[40]        
On that same date, she attended Dr. Oyler’s office. On that date, as
reported in the letter to which I have referred, Dr. Oyler described Ms.
Levens:

She was holding her head
extremely stiffly and was tender in the C5-6 area of her neck. All cervical
ranges of motion were extremely limited. Neurological exam was negative.

[41]        
On October 8, 2009, Dr. Oyler wrote, “she continued to have many
symptoms but ROM’s of C-spine were improving.” On October 26, 2009, Dr. Oyler wrote:

…her “neck” was “still plenty
sore”, but she appeared more concerned about pain down into her right buttock
as far as the knee. When specifically questioned regarding onset Susan states
this pain “came back since the accident”. She had not told me about back pain
at the previous visit regarding her neck pain, but assured me the back pain
definitely came on at the time of the accident.

[42]        
On November 1, 2009, Ms. Levens was taken to hospital by ambulance as
she could not get out of bed or walk. She was hospitalized for pain management
until November 9, 2009. She used a walker in hospital and at home upon her
discharge. She testified that the pain was in her right leg. Her symptoms of
pain in her neck and back continued upon her return home. While in hospital,
she was seen by Dr. Chevalier, who recorded her complaint of right buttock pain
through to her thigh, but not below the knee. Dr. Chevalier observed that Ms.
Levens displayed difficulty rising from a supine position to a sitting
position. He found tenderness in the buttocks. He concluded that this was due
to myofascial pain.

[43]        
In May of 2010, Ms. Levens again attended the hospital with a new
episode of back pain. She was seen by Dr. Brownlee in the emergency room. Dr.
Brownlee concluded there were no symptoms or clinical findings of
radiculopathy. Ms. Levens was admitted to hospital so that Dr. Brownlee could
make further investigations. At Dr. Brownlee’s request, Ms. Levens was seen by
Dr. Navratil who found that she had restrictions in her back on forward flexion
and extension. He concluded that she had chronic low back pain “with a
significant component of myofascial pain.”

[44]        
Dr. Brownlee performed rhizotomies to the left L4-5 and L5-S1. Ms.
Levens testified that her back was better and she was not having the daily
pain.

[45]        
In 2010, Ms. Levens had massage therapy, physiotherapy, and acupuncture.
She had further physiotherapy in 2011.

[46]        
When Ms. Levens moved to Penticton, she saw Dr. Burgoyne who suspected
that Ms. Levens had C5 radiculopathy. She complained to Dr. Burgoyne of left
arm pain.

EXPERT REPORTS

[47]        
The following are the expert reports before me:

[48]        
Drs. Singh and Chevalier were both cross-examined on their opinions. All
the doctors, save Dr. Singh, were Ms. Levens’ treating physicians. Dr. Singh
saw Ms. Levens for purposes of a medical/legal opinion.

[49]        
Dr. Oyler’s report is a summary of the care he provided to Ms. Levens
and her medical complaints. He agrees with Dr. Chevalier’s diagnosis that Ms.
Levens has myofascial pain and that “her prognosis was excellent for eventual
full recovery.” In his report, Dr. Chevalier confirmed that he saw Ms. Levens
on November 2, 2009. The CT scan of her lumbar spine taken on November 1, 2009,
showed “no other changes were worth mentioning.” This is a comparison to an
August 8, 2007 CT scan which was reviewed by Dr. Chevalier on the same day. His
opinion was that the pain Ms. Levens experienced in her back was myofascial in
origin.

Dr. Chevalier

[50]        
At the request of Dr. Burgoyne, Dr. Chevalier saw Ms. Levens in his
office on September 13, 2012. Her complaints to him were pain in her neck which
radiated to her shoulder and upper arm, but not below the elbow, which he
described as a new complaint. She told Dr. Chevalier that it worsened when holding
her arm in an immobile position. Dr. Chevalier found Ms. Levens’ range of
motion in her neck as “significantly decreased in all directions”. In addition,
there was tenderness in her left trapezius muscle and over the head of her
humerus. An MRI was done of Ms. Levens’ cervical spine.

[51]        
Upon reviewing the MRI, Dr. Chevalier found signs of disk degeneration
affecting all levels of her neck. He writes:

This examination also showed a moderately-sized disk
herniation at C4-C5 protruding through the left neuroforamen, which is the exit
hole by which the left C5 nerve root will leave the spine to reach the arm.
There were also signs of degeneration with bulginess and herniated disk
fragments seen at C5-C6 and C6-C7 with some restriction of the space available
for nerve roots to come out the spine on the left-hand side at both of these
levels.

My conclusion was that she
presented a complex problem of pain after a motor vehicle accident with signs
of disk degeneration that were mostly pre-dating her accident. The motor
vehicle accident though may have been the final push for these disk herniations
to become symptomatic. There were also signs of myofascial pain in her left
trapezius and in the region of her left shoulder. These could independently be
painful, outside of any nerve root irritation.

[52]        
Dr. Chevalier concludes that it was the myofascial injury to the right
buttock that required her hospitalization for pain management during five weeks
in November of 2009. He related this injury to the motor vehicle accident. He was
unable to directly link her neck symptoms to the accident. He stated that when
she was in hospital in 2009 there was no complaint about her neck. Dr.
Chevalier states:

Except for a sensation of
headaches she had immediately after the accident, there was never any mention
of neck pain or pain radiating to her shoulder or her arm at that point. From
the last consultation note from September 13, 2012, there is no mention that
the start of these symptoms coincided with the motor vehicle accident. Also, on
imaging, there are no specific findings that would link the changes we observe
to any specific trauma. These are changes we see routinely in patients
suffering from variable degrees of aging and age-related arthritis to their
spine, i.e. about everybody to variable degrees. Only on the history could we
suggest a link between the motor vehicle accident and the onset of the neck and
arm symptoms, and unfortunately I don’t have such information in my
consultation notes.

Dr. Davidson

[53]        
Dr. Davidson is a neurologist who was asked by Dr. Chevalier to assess
Ms. Levens. He saw Ms. Levens on December 3, 2012 at the Penticton Regional
Hospital so as to “assess a suspected left sided C5 radiculopathy symptoms
clinically and electrodiagnostically.”

[54]        
Dr. Davidson’s diagnosis is:

Left C5 radiculopathy and left
shoulder MSK/soft tissue pain due to disc herniation and associated cervical
spine degenerative disease.

[55]        
Dr. Davidson assessed the degree of her condition as:

…lying between mild and
moderately severe for the degree of pain, but also the fact that active
denervating change can be seen on EMG testing indicating active motor axon
irritation at the time the EMG test was done.

[56]        
As to the aggravation of a pre-existing condition, the effect of this
condition, and the severity of the symptoms, Dr. Davidson writes:

·       
This patient’s left arm symptoms arise from a C5 nerve root
irritation (radiculopathy); in turn due to a disc herniation as part of
multilevel and chronic cervical spine degenerative disease.

·       
It is unclear if her MVA in September of 2009 was a precipitating
factor for her neck or arm discomfort, or not, as her left arm pain did indeed
arise after the MVA, but the radicular pain was not immediately present. Her
cervical spine degenerative disease, however, certainly preceded the accident.

Dr. Singh

[57]        
Dr. Singh is a neurosurgeon who was practicing from 1967 to 1993. Since
1993, he has restricted his practice to consultations, assessments, and
occasionally he provides assistance in an operating room.

[58]        
Dr. Singh saw Ms. Levens on February 10, 2011. He had reviewed all of
Ms. Levens’ medical records which are before the court and date back to the
time when Dr. Mosewich first saw Ms. Levens.

[59]        
In examining Ms. Levens, Dr. Singh found that she had no pain radiating
down her legs when she was lying on her back and raised her legs. However, she
was only able to raise each leg separately to 50 degrees, and normally one
should be able to raise their legs to 90 degrees. This indicated to Dr. Singh
“generalized back disc discomfort and perhaps some inflammation of the nerves.”
He found that the left big toe was weak on extension, which Dr. Singh
correlated with the surgery performed by Dr. Chevalier. He also found that Ms.
Levens had no sensory reflex changes.

[60]        
Dr. Singh found that the extension of Ms. Levens’ neck produced pain in her
shoulder, and that “Spurling’s maneuver was strongly positive.” In his report
dated April 21, 2011, he described Spurling’s maneuver as:

In this test the back of the head
is turned to the side being tested. The neck is extended and the head
compressed downwards. In this position the foramen of the opening to which the
nerve comes out of the neck and goes in the arm is in a smaller diameter.
Normally it does not cause a problem however if there is pressure on the nerve
by a mass lesion such as a slipped disc compromising the space or inflammation
then the patient experiences radiating pain down the arm.

[61]        
Dr. Singh found some weakness in the deltoid, the muscle that extends to
the shoulder, as well as an altered sensation in the thumb. He found her
reflexes were normal. As a result, he decided further investigations concerning
her neck were necessary and sent Ms. Levens for an MRI scan.

[62]        
The MRI scan was carried out on February 21, 2011. There were problems
with the operation of the machine which resulted in some images being degraded.
Despite this, it showed that there was left-sided compression at the C5-C6
which he stated is consistent with his clinical findings from when he examined
Ms. Levens. A further MRI was done on March 22, 2011. This scan showed small
bulges between the C2-C3 vertebrae and the C3-C4 vertebrae of the cervical
spine. There was no compression of the nerve root or spinal cord. At the C4-C5
vertebrae there was mild disc space degeneration with “a small posterior disc
herniation which mildly impinges the cervical cord.”

[63]        
He then reviewed the x-ray with the radiologist at the hospital and he
found that “the disc was more towards the left side therefore probably
compromising the left C6 nerve root which comes out of the spine at the C5-C6
level.”

[64]        
Dr. Singh analyzed Dr. Mosewich’s reports from 2005. He noted that
according to those reports, Ms. Levens “did not have any significant arm pain
until approximately a year prior to the examination dated Dec 14, 2004.” Dr.
Singh quotes from Dr. Mosewich’s report as follows:

…she described the pain in the
arm as “buzzing feeling into the forearm and thumb and index finger and itching
sensation”. The hand felt weak and clumsy. This could be triggered by turning
her neck in certain positions. This description is classical of nerve root
compression and Dr. Mosewich felt she had C6 compression clinically however
electrical studies did not show any abnormalities. There was no demonstrable
damage to this nerve root in the electrical studies.

[65]        
Dr. Singh was aware that a CT scan, taken at the request of Dr.
Mosewich, showed:

…evidence of C5-C6 disc narrowing
with hard disc bulging without any localized disc bulge present at that time
although it was noted that the foramen, that is the opening through which the
nerve comes out of the neck to go to the arm on the left, was narrow making her
more susceptible to the smaller bulges at that level because of the narrowing
of the foramen.

[66]        
Dr. Singh reviewed x-rays from October 27, 2009 and the CT scan (of Ms.
Levens’ lumbar back) from November 2009. The x-rays showed deterioration of the
S1 joint which is consistent with anklyosis and Dr. Singh states is a form of
arthritis.

[67]        
The CT scan of Ms. Levens’ back on November 1, 2009 showed evidence of
spinal stenosis between the fourth vertebrae and the sacrum. Dr. Singh defined
spinal stenosis as:

…a condition in which the canal
inside the spine narrows with potential of compressing nerve root in the spinal
cord. This can be a combination of degenerative disc changes as well as some
disc bulges which compromise the room inside the spinal canal.

[68]        
The x-ray of Ms. Levens’ neck, taken on October 27, 2009, showed evidence
of some loss of calcium but no fractures. The x-ray showed mild degenerative
changes at the C5-C6 vertebrae which remained unchanged since 2005. Regarding
Ms. Levens’ low back, Dr. Singh’s opinion from his first report is as follows:

…while the low back seems to be a
combination of myofascial pain since the accident as well as the patient’s
arthritic problems in the sacrum and also a condition of spinal stenosis
unrelated to the accident which certainly can be aggravated by the jolt of the
accident. Usually however the aggravation is temporary although may last
several months but certainly it is a progressive disease which will progress on
its own as time goes on and may require further surgical intervention. However
if that happens it most likely would be due to her condition of spinal stenosis
and not so much as a result of the car accident although this may hasten things
to some extent.

[69]        
In cross-examination, Dr. Singh acknowledged that there were
radiculopathy symptoms in Ms. Levens in 2005. He acknowledges that these
symptoms can come and go. Classic symptoms of radiculopathy are shoulder and
arm pain, which Ms. Levens had in 2005, before the accident. Dr. Singh
testified that Ms. Levens may have recovered from these symptoms in 2005,
because the medical records show no continued complaints.

[70]        
In cross-examination, Dr. Singh acknowledged that the Spurling test
performed by Dr. Mosewich in 2005 was described as “mildly positive” which can
be a result of the nerve being irritated, but it could also be a result of a
tumor (which is rare), or a “hard bony ridge due to the arthritic changes that
you see” (transcript of Dr. Singh’s evidence at page 14, lines 27-28), and
particularly if the foramen is small. It could also be a “bit of disk bulge,
maybe a bony spur” or a combination of the two (transcript of Dr. Singh’s evidence
at page 14, lines 38-39). Dr. Singh stated that deltoid muscle pain in the
shoulder can be involved by either the fifth or sixth cervical vertebrae, most
commonly the fifth. Dr. Singh stated that these symptoms were in existence in
2005. Dr. Singh points to no evidence of shoulder pain after this.

[71]        
Dr. Singh made it clear that just because a person has neck pain does
not mean they have radiculopathy symptoms. Dr. Singh stated in
cross-examination at page 18, lines 4-30:

A          …Spinal stenosis in itself, uh, does not mean
nerve — nerve being compromised. Basically a typical spinal stenosis would
affect the spinal cord, which is different than the spinal nerve. And spinal
cord compression would cause — in the worst-case scenario it could cause, you
know, paraparesis, paraplegia, that kind of thing, which is not very common.
But it will cause weakness of the legs. You know, spinal cord symptoms. In
other words, not — not — not nerve root symptoms.

 And
spinal stenosis doesn’t have to be present. It could be just the narrowing of
the foramen —

Q         Right.

A          —
that would cause the nerve to be impinged. So it’s a different condition,
spinal stenosis compared to a foraminal stenosis.

Q         Okay.
You’re aware though that she was diagnosed with spinal stenosis or found to
have spinal stenosis at the C-5/6 level before the accident?

A          Well, I don’t know if I could
call it the spinal stenosis. There was — there was some — some compromise but
I would — calling that spinal stenosis I think would be a bit of an
exaggeration.

[72]        
Dr. Singh went on to state that Dr. Mosewich’s diagnosis in 2005 shows
an osteocartilaginous bar with some foraminal stenosis which, in Dr. Mosewich’s
opinion, caused the C6 symptoms, but Dr. Singh stated that is not spinal
stenosis. When Ms. Levens saw Dr. Mosewich she had spinal stenosis in her low
back, but not her neck. Dr. Singh confirmed that the diagnostic test for spinal
stenosis in the neck would be an MRI or a CT scan. Ms. Levens had an MRI in
2009 and it did not show spinal stenosis in the neck. It further demonstrated
that there was no likelihood of Ms. Levens having spinal stenosis in her neck
in 2005. What she had was foraminal stenosis which Dr. Singh stated means that:

…she’s more susceptible to getting a radiculopathy with a
minimum — a minimal bulge as opposed to somebody who does not have that, can
tolerate that amount of bulge without getting nerve pressure.

…Another cause of cervical
radiculopathy can be degenerative disk disease.

[73]        
Cervical spondylolysis in Ms. Levens is at the C5-C6 level and is a
moderate narrowing of the left C5-6 of the neuroforamin. The neuroforamin is an
opening on the side of the spine through which one nerve comes out at each
level. Foraminal stenosis is found in the narrowing of the openings that the
nerve travels through.

[74]        
Dr. Singh stated that the MRI cannot say when the herniation occurred.
He stated that foraminal stenosis is not caused by herniation. Foraminal
stenosis is the narrowing of the cervical disc space. Dr. Singh points out that
Dr. Mosewich’s report and his electrical studies are different from those of
Dr. Davidson’s, the latter of which shows a clear cut nerve pressure. This did
not show in Dr. Mosewich’s studies. Dr. Singh states that Dr. Mosewich and Dr.
Davidson’s respective studies go from “a normal study to an abnormal study.”

[75]        
Dr. Singh acknowledged that disk herniation can occur spontaneously and
it can occur due to trauma. Dr. Singh acknowledged that disk degeneration is a
form of arthritis and is not a pure disease. He said that pure disk herniation
is more likely and is more common in the younger population than the older
population. He stated that disk herniation is not consistent with aging, but
that Ms. Levens would be more susceptible to herniation because of the
degenerative process.

[76]        
Dr. Singh testified that when you go through Ms. Levens’ medical
records, you see that her initial problems were mainly in her back, and that
this overshadowed any problems in her neck. However, when her back settled down
she started to have considerably more neck problems that were not going away.

[77]        
Dr. Singh concluded that Ms. Levens had foraminal stenosis in her neck
in 2005, but not spinal stenosis. Dr. Singh concludes that Ms. Levens did not have
any significant nerve damage as seen on the electrical study done by Dr.
Mosewich. She did not have any lateral left side disc bulge which was seen in
the MRI conducted by Dr. Singh in 2011. He states that the lateral disc bulge
was most likely caused by the accident “causing the pre-existing degenerative
disc to bulge out on the left side causing more persistent nerve root
compression signs…”

CREDIBILITY OF MS. LEVENS

[78]        
The defence argues that Ms. Levens was not honest when she told Dr.
Davidson (the statement was actually made to Dr. Burgoyne) that she had not
experienced weakness and shoulder pain on the left side before.

[79]        
Ms. Levens cannot be expected to remember everything she told her
doctors about her medical complaints and pain, nor ought it be expected that
the doctors she consulted be expected to record everything she told them. There
are bound to be inconsistencies between Ms. Levens’ testimony and those
statements made by Ms. Levens to her various doctors as contained in their
consultation reports and expert reports, which are based on clinical records.
This situation is commented on in Edmondson v. Payer, 2011 BCSC 118,
aff’d 2012 BCCA 114 as follows:

[31]      In Diack v. Bardsley (1983), 46 B.C.L.R.
240, 25 C.C.L.T. 159 (S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308
(C.A.), McEachern C.J.S.C., as he then was, referred to differences between the
evidence of a party at trial and what was said by that party on examination for
discovery, at 247:

… I wish to say that I place
absolutely no reliance upon the minor variations between the defendant’s
discovery and his evidence. Lawyers tend to pounce upon these semantical
differences but their usefulness is limited because witnesses seldom speak with
much precision at discovery, and they are understandably surprised when they
find lawyers placing so much stress on precise words spoken on previous
occasions.

[32]      That observation applies with even greater force to
statements in clinical records, which are usually not, and are not intended to
be, a verbatim record of everything that was said. They are usually a brief
summary or paraphrase, reflecting the information that the doctor considered
most pertinent to the medical advice or treatment being sought on that day.
There is no record of the questions that elicited the recorded statements.

[33]      When statements of a party are relied on for the
truth of their content, the authors of Sopinka, Lederman & Bryant, The
Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009)
point out at paragraph 6.398 that one rationale for the admissibility of such
statements is that "it is always open to the party to take the witness box
and testify either that he or she never made that admission or to qualify it in
some other way." The authors also emphasize at paragraph 6.413, that the
whole of a statement must be put into evidence:

Thus, if an admission contains
statements both adverse and favourable to a party and if an opponent tenders
it, he or she may thereby be adducing evidence both helpful and damaging to his
or her cause.

[34]      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 doctor’s 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.

[35]      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
plaintiff’s history in this case, particularly given the human tendency to
reconsider, review and summarize history in light of new information.

[80]        
I think this is a situation similar to that referred to in Edmondson.
Ms. Levens’ complaints to Dr. Outram occurred in 2004. It is equally plausible
that the pain was not like that complained of to Dr. Outram or to Dr. Burgoyne.

[81]        
I find Ms. Levens to be a credible witness as it relates to the various
symptoms that she experienced in her neck and back.

CAUSATION

[82]        
The burden rests with the plaintiff to prove that the defendant’s
negligence caused the injuries for which the plaintiff seeks damages. There are
different legal principles which apply when determining causation and which
apply when assessing damages for those injuries.

[83]        
The test in determining causation is the “but for” test set out in Athey
v. Leonati, [1996] 3 S.C.R. 458. Causation need not be determined
scientifically. Causation is determined by a finding of fact.

[84]        
The plaintiff does not have to prove that the tortious conduct of the
defendant is the sole cause of his or her injuries. A defendant is fully liable
for the harm suffered by the plaintiff, even if there are other causes existing
which resulted in the harm. The plaintiff must establish “a substantial
connection between the injuries and the defendant’s negligence beyond the
"de minimus range”: Midgley v. Nguyen, 2013 BCSC 693 at
para. 170.

[85]        
At the same time, the court must be careful not to conclude that the
injuries occurred based only on the consideration of the condition of the
plaintiff before and after the accident. This is not always reliable. However,
the pre-accident and post-accident analysis is legitimate in some cases. It
must be remembered that when assessing medical evidence, it is assessed in the
legal context of the “but for” test based on a balance of probabilities.

[86]        
In assessing the medical evidence in the context of causation, Madam
Justice Dardi in Midgley stated:

[172] When assessing medical evidence, the court must
be mindful that in the legal context the "but for test" need only be
established on a balance of probabilities; a plaintiff must show that it is
more likely than not that, without the tort, the injury or medical condition
would not have occurred. This is to be contrasted with the more exacting
standard that approaches scientific certainty in the medical context. The court
in Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 145-146 (var’d on
other grounds, 2012 BCCA 239), provides the following instructive formulation
of the governing principles:

In determining causation in the
legal context, courts must be mindful to assess the import and substance of the
expert opinion evidence, and to be cautious about the wording used by the
experts so as to not unduly discount or over-weigh the expert’s choice of
language when describing medical causation. Ultimately causation is a
question for the court, taking into account the evidence.

It is important for the court to
keep in mind that all that is required to determine these complex medical issues
in the context of causation is for the plaintiff to prove what is more likely
than not. This is what is meant by the "but for" test: it is more
likely than not, that without the tort, the injury or medical condition would
not have happened.

[Emphasis in Midgley].

[87]        
Ms. Levens’ position is that the disc in her neck was herniated as a
result of the accident. The basis of that position is the medical evidence of
Dr. Singh, specifically when he compared his findings to those of Dr. Mosewich
in 2005. Further, Ms. Levens really had no complaints about her neck which
caused her to consult her doctors between 2005 and the date of the accident.

[88]        
The defence’s position is that Ms. Levens’ condition is consistent with
the natural progression of her pre-existing degenerative spinal condition, both
foraminal stenosis and degenerative disk disease in her cervical spine. The
defendant argues:

73.       It is submitted that there is
insufficient medical evidence to support a finding that the Plaintiff would not
be in her present condition but for the motor vehicle accident, or that the
motor vehicle accident materially contributed to her present condition. The
evidence is more consistent with the finding that the Plaintiff’s present
condition is as a result of the natural progression of her pre-existing
diseases.

ANALYSIS

[89]        
There is no doubt that Ms. Levens had a history of neck and back pain.
This arose from some motor vehicle accidents and degeneration of the discs in
her spine.

[90]        
Before the accident, she had some difficulties with her housework.
Consequently, a housekeeper was hired. She still has some difficulties doing
housework. She and Mr. King live in a two-bedroom condominium and employ the
services of a housekeeper.

[91]        
Prior to the accident, Ms. Levens undertook all activities of daily
living which included caring for her mother and her husband. Ms. Levens
testified that her activities before the accident were walking, shopping,
golfing, and swimming (which she loved). She stated that since the accident she
has been able to walk and to go shopping. She stated that she has not golfed
since the accident and cannot swim due to her neck pain.

[92]        
Since the accident, Ms. Levens and Mr. King went to Thailand for six
weeks and spent 18 days in Kenya. While in Kenya, they travelled by taxi and
took short bus trips. She said she had no difficulty travelling by airplane.
She has also been on a cruise. She and Mr. King have travelled by bus to Las
Vegas and to Lynden, Washington, as they like to gamble.

[93]        
In 2004/2005, Dr. Mosewich determined that Ms. Levens’ neck pain related
to degenerative changes in her spine at the C5-6 vertebrae. This is described as
the narrowing between the discs, bony spurs at the C5-6 with moderate bony
narrowing of the left C-6 neuroforamen. He found no disk herniation.

[94]        
Dr. Mosewich stated that the left shoulder pain was caused by a
different problem and referred Ms. Levens to another doctor. After that, Ms.
Levens did not have any sufficiently serious complaints of neck pain to seek
medical attention.

[95]        
There were complaints relating to back pain to the left sciatic which
were resolved through surgery.

[96]        
On October 21, 2008, Ms. Levens saw Dr. Carson for shoulder pain. Ms.
Levens did not follow up with a medical doctor relating to this complaint.

[97]        
Dr. Oyler stated that Ms. Levens did not complain about her back until
several weeks after she first attended his office following the accident.
Similarly, Dr. Chevalier states that she did not complain about her neck when
she was admitted to hospital in early November of 2009.

[98]        
I have concluded that Ms. Levens had a back and neck injury as a result
of the accident. Dr. Chevalier did not have Dr. Oyler’s notes relating to her
neck injury, in particular when she first went to see him and “was holding her head
extremely stiffly and was tender in the C5-6 area of her neck.” Her cervical
ROM was “extremely limited”. Dr. Oyler went on to say that her neck started to
improve and it was only until October 26 that she complained of neck pain.
However, he also stated that she “continued to complain of ongoing neck and
back pain” when he saw her in April 2010 and, at her request, referred her to
Dr. Chevalier.

[99]        
I have concluded that when Ms. Levens first saw Dr. Oyler, her biggest
concern was her neck. Similarly, when she saw Dr. Chevalier it was her back.
Dr. Chevalier testified that he saw her for back pain emanating from the right
buttock.

[100]     Dr.
Chevalier testified that when he saw Ms. Levens he was not doing a medical assessment
of her. It was in the hospital setting. I conclude that there was no discussion
about her neck; her focus was on the serious back pain that she was suffering.

[101]     When Ms.
Levens saw Dr. Chevalier about her neck on September 13, 2012, he stated that
the neck pain was a new problem and it was radiating into her shoulder. However,
her neck pain was not new; it started right after the accident. Dr. Chevalier
found on September 13, 2012, the ROM of her neck was “significantly decreased
in all directions.”

[102]     When Dr.
Chevalier reviewed the MRI taken March 22, 2011, the same one that Dr. Singh
looked at, he observed disk degeneration affecting most of the cervical levels
of her neck, the particulars of which I referred to earlier. He concluded that
these problems existed prior to the accident. He linked the cause to the aging
process and the age-related arthritis. He acknowledged in his report that if
there was a history suggesting a link to the motor vehicle accident relating to
the neck and shoulder problems, he had no such information in his consultation
notes. He did not have Dr. Oyler’s clinical records, particularly those of
October 1, 2009.

[103]    
Dr. Chevalier confirms that the right buttock pain, which he says was
caused by the accident, put Ms. Levens in the hospital in November of 2009. Dr.
Chevalier acknowledges that when he saw Ms. Levens on September 13, 2012, her
neck condition was:

…severe enough to prevent her
from being active. I am not sure if she is still active professionally but the
description I got suggests a significant impact on at least her enjoyment of
leisure activities.

[104]     Physiotherapy
records of December 22, 2009 note that neck and back pains were worse every
day, that the neck pain was intense, and the back pain constant which was
aggravated by prolonged standing and carrying any weight in the hands/arms.

[105]     I have
concluded, based on all of the medical evidence and the evidence of Ms. Levens,
that as a result of the accident Ms. Levens suffered a herniated disk as seen
in the MRI ordered by Dr. Singh in 2011.

[106]     I also
conclude that Ms. Levens, due to her pre-existing condition, was more
susceptible to a disk herniation as a result of the degenerative changes in her
cervical spine.

[107]     I further
conclude that Ms. Levens’ back injury was due to myofascial pain which put her
into the hospital in November of 2009. Ms. Levens has spinal stenosis in her
back unrelated to the accident which was aggravated by the accident. As a
result of the accident, I conclude, for about a year, Ms. Levens had additional
pain that she would not have had but for the accident.

FUTURE SURGERY

[108]     Dr. Singh
predicts that there is a 50 percent chance that Ms. Levens will require
surgical treatment for her neck. He is of the view that she will require
hospitalization for a period of four to five days and recovery time of three to
six months. He states that generally the outcome of this kind of surgery is 90
percent successful, but there may be some chance of ongoing problems in her
neck. He recommends surgery which would require not only operating on the C5-C6
level of her vertebrae, but also the C4-C5.

[109]     Dr.
Chevalier is of the view that surgery would be done at the C4-C5 level, but
that the complicating factor is that the discs below this area are already showing
signs of degeneration, and surgery could accelerate disc degenerations below
the C4-C5 area. Although asymptomatic now degeneration could become symptomatic
quickly after surgery. He states that it is a significant operation and it
would not necessarily solve her shoulder pain.

[110]     Ms. Levens
gave evidence that she thought she would have the surgery. However, there is no
evidence that she has taken any steps to consult doctors regarding this
surgery. Nonetheless, I accept that it is likely that Ms. Levens will have
surgery in the future.

DAMAGES

[111]     The
damages that I am to assess are firstly, the headaches which cleared up very
quickly. Secondly, her increased myofascial pain which was caused by the
accident. Thirdly, the neck injury is the major injury and the most significant
as it relates to the motor vehicle accident and when compared to her headaches
and back pain.

CASELAW

[112]     Ms. Levens
relies on the following cases to support her claim for non-pecuniary damages: Morgan
v. Scott, 2012 BCSC 1237; Jokhadar v. Dehkhodaei, 2010 BCSC 1643; Sanders
v. Janze, 2009 BCSC 1059; and Heppner v. Zia, 2008 BCSC 782.

[113]     The
defence relies on the following cases for non-pecuniary damages: Chen v.
Beeler, 2004 BCSC 584; Paradis v. Gill, 2011 BCSC 1414; and Duifhuis
v. Bloom, 2013 BCSC 1180.

[114]     In Chen,
the plaintiff was involved and injured in two motor vehicle accidents. The
accidents occurred about six weeks apart and were “rear-enders”. The plaintiff,
age 53, was in good health. Her complaints were dizziness, neck, shoulder, and
back pain, particularly in the lumbar area, pain in her side, and weakness in
her arms. All of this caused her worry, depression, and listlessness.

[115]     The
plaintiff, at the time of trial, was stiff in her neck and had difficulty
sitting. Her leg hurt when she walked and she experienced numbness in her back
as well as other symptoms. All of this prevented her from fully participating
in her religious rites, driving a car, and it caused her to become impatient.

[116]    
Three years after the accident, the plaintiff had an MRI of her cervical
and lumbar spine which revealed sponylosis and disc abnormalities. The most
significant was at the C5-C6 level “where there is deviation of the spinal cord
to the right with left neural foraminal narrowing” [para. 55]. Further, in the
lumbar spine were mild disc protrusions. A medical opinion produced by the
defence concluded that these were degenerative changes not caused by the
accident, but the accident affected the disc degeneration by making her
symptoms more prolonged.

[117]    
The court found, at para. 82:

…Accepting, as I do, the
possibility of the presence of asymptomatic degenerative changes in Mrs. Chen’s
cervical spine and lumbar spine, I find that the accident at the very least
rendered symptomatic the degenerative changes and probably caused the disc
bulges.

[118]     The court
awarded Ms. Chen $35,000.00 for non-pecuniary damages.

[119]     In Paradis,
the plaintiff, age 43, sought damages for chronic soft tissue injuries to her
neck, upper, and lower back, and an abrasion to her forehead, which she alleged
to have suffered as a result of the motor vehicle accident. The defendant
claimed that these injuries were a result of a pre-existing condition and from
other injuries that occurred after the accident.

[120]     The trial
judge had difficulty accepting all of the plaintiff’s evidence regarding the “extent
and duration of her injuries from the Accident.” (para. 69)

[121]     The court
found that the plaintiff’s pain was predominantly mild to moderate relating to
her lower back and that she had suffered back and neck pain, as well as
headaches prior to the accident though not as great. The court found that many
of her physical restrictions did not relate to the accident, but rather to an
injury to her left knee (para. 73). Her ROM at the time of the trial was
unimpaired.

[122]     The court
assessed non-pecuniary damages at $40,000.00

[123]     In Duifhuis,
the plaintiff, age 76, sought damages for injuries that she suffered in a car
accident in which the car she was riding was struck from the rear. It was
acknowledged by the plaintiff that she had neck problems which included
degenerative disc disease prior to the accident. The pre-accident problems were
not serious and, after the accident, she had more significant symptoms which
included headaches, back, and neck pain. Her low back eventually resolved and the
main problem was to her neck. The trial judge concluded that the motor vehicle
accident aggravated her pre-existing degenerative disease which was responsible
for her neck problems. The court awarded the plaintiff $35,000.00.

[124]     In Jokhadar,
the plaintiff was the mother of two children and pregnant with a third child
when she was involved in a head-on collision. The plaintiff was a hairdresser,
who prior to the accident suffered from a bipolar disorder.

[125]     The
plaintiff claimed that as a result of the accident, she incurred shoulder,
back, neck, and right arm pain. She further claimed that her bipolar disorder
was exacerbated by the emotional and physical impact of the accident and
contributed to the post-traumatic stress disorder which she claimed she
suffered.

[126]    
The accident occurred in October of 2006. In 2009, the plaintiff
underwent a CT scan which revealed a large disc protrusion of the C5-C6 level
with a cord compression and significant foraminal narrowing which was described
as:

[61]

At C5-C6 there is a moderate disc space narrowing and
desiccation. There is a right paracentral and foraminal broad-based disc
protrusion. This significantly indents and deforms the cord. Significant mass
effect on the cord is noted. Cord signal is normal without intracord hemorrhage
or obvious edema. There is significant encroachment on the right neural foramen
and displacement of the exiting nerve root.

[127]     The
plaintiff underwent a nerve block which provided no relief.

[128]     After the
accident, the plaintiff had repeated incidents relating to her bipolar
condition.

[129]    
As a result of the accident, the court found in Jokhadar, at
para. 126, that the plaintiff sustained:

…injury to the musculoligamentous
structures of her right neck and shoulder area and that she now suffers from a
disk protrusion at the C5-C6 level that may become increasingly symptomatic.

[130]     The court
found that since the accident, the plaintiff suffered mechanical neck, shoulder,
mid-back, and low back pain, weakness, and tenderness, a combination of soft
tissue injury and some irritant on the nerve root at the C5-6 level, which were
caused by the accident. The court also accepted that the plaintiff’s injury at
the C5-6 level will cause further pain in the future, and that she may require
surgery for a C5-6 herniation.

[131]     The court
also found that the plaintiff’s psychological symptoms affected her activities
as much as her physical symptoms, and that the accident “was a significant
cause of the worsening “of the mental and emotional injuries” (para. 137). The
court found that prior to the accident, the plaintiff suffered a significant
bipolar effective disorder which required monitoring and medication, but it was
significantly exacerbated by the accident. The trial judge concluded that she
would in all likelihood suffer relapses. The court awarded non-pecuniary
damages of $90,000.00.

[132]     In Morgan,
the plaintiff, prior to the accident, suffered with chronic pain in his neck,
low back, and elsewhere as a result of two motor vehicle accidents that
occurred in 1990. Since 1992, he suffered from a chronic lung disorder and
emphysema, as well as depression and anxiety periodically.

[133]     Mr. Morgan
claimed that the accident had a devastating impact on his already poor
circumstances. Since 1995, he was receiving a disability pension. This impacted
many aspects of his social life. He kept fit by lifting weights and using gym
equipment.

[134]     The court
found that the plaintiff’s pain changed from flare-ups and periodic pain to
consistent pain as a result of the accident.

[135]     Further,
the accident dramatically curtailed the plaintiff’s exercise program which was
vital to his respiratory condition, his health, and the management of his pain.
His depression became consistent and he was physically deconditioned. The court
found, despite his childhood problems and his health, that he had persevered
something that he had lost as a result of the accident. The court awarded
non-pecuniary damages of $100,000.00.

[136]     In Heppner,
liability was apportioned between the plaintiff and defendant 50/50 as a result
of an accident that occurred in January of 2004. The plaintiff claimed low back
pain within two weeks of the accident, and her condition deteriorated
thereafter to the point that she was disabled and unable to work.

[137]     After the
accident, it was determined that the plaintiff had a herniated disc for which
she required surgery. The issue before the court was whether the disc
herniation was attributable to a pre-existing back problem. Further, the
defence argued that her fall down the stairs caused her problems.

[138]     The
medical evidence was contradictory as it relates to whether the disc herniation
occurred as a result of the accident, or whether the disc herniation was a
result of the natural history of lumbar degenerative disc disease. The court
concluded that the plaintiff sustained a mild to moderate soft tissue injury to
her neck and back as a result of the accident which had an affected her
personal, employment, social, and recreational pursuits and activities. The
award for non-pecuniary damages was $75,000.00.

[139]     In Sanders,
the plaintiff was rear-ended in a motor vehicle accident on December 4, 2002.
Prior to the accident, the plaintiff had suffered from numerous injuries, both
work-related and motor vehicle accidents. She experienced periods of neck and
back pain and disability. At the time of the accident, she was recovering from
one of her prior injuries.

[140]     After the
accident, she suffered from low back and neck pain. Since the accident, she had
four separate surgeries – one to her neck and three to her lower back.

[141]    
The court found that the plaintiff’s injuries to her neck and back were
caused by the accident. Mr. Justice Butler concluded at paras. 87-88:

[87]      Taking all of the evidence into account, I conclude
that the defendant has established that there was a measureable risk that she
would have gone on to suffer serious problems, including surgery, with her neck
and low back regardless of the Accident. Having arrived at this conclusion, the
proper approach is to apply a percentage discount to the award that would
otherwise be made: York v. Johnston (1997), 148 D.L.R. (4th) 225,
37 B.C.L.R. (3d) 235 (C.A.). Here, the issue is complicated by the fact that
there are two areas of the spine to consider; the risk is somewhat different
with regard to each area.

[88]      I regard the risk that
the cervical spine would have developed serious problems absent the accident as
much greater than 50%. I regard the risk that the lumbar spine would have gone
on to develop serious problems at somewhat less than 40%. However, the problems
associated with the lower spine and the restrictions caused by those problems
are more serious than the problems with the cervical spine. Taking all of the
evidence into account, I find that the percentage discount to apply to the
damage awards is 40%.

[142]     The
plaintiff was awarded $150,000.00, discounted by 40 percent, making an award of
$90,000.00 for non-pecuniary damages.

[143]    
I have considered the case of Stapley v. Hejslet, 2006 BCCA 34,
leave to appeal to SCC refused [2006] S.C.C.A. No. 100, at para. 46:

[46]      The inexhaustive list of common factors cited in
Boyd that influence an award of non-pecuniary damages includes:

(a)        age of
the plaintiff;

(b)        nature
of the injury;

(c)        severity
and duration of pain;

(d)        disability;

(e)        emotional
suffering; and

(f)         loss
or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)        impairment
of family, marital and social relationships;

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

[144]     At the
time of the accident, Ms. Levens was 65 years old and at the time of the trial
was age 69. Her most significant injury is the disc herniation in her neck. The
pain has been severe. The myofascial pain and arthritis in her back would have
been ongoing and not related to the accident. The motor vehicle accident caused
increased pain which landed her in the hospital.

[145]     She is
disabled as she does not always have a full ROM in her neck. She has been
unable to engage in some of her recreational and sporting activities that she
engaged in prior to the accident.

[146]     In coming
to the amount of her non-pecuniary damages, I take into consideration that Ms.
Levens had a pre-existing condition in her neck which was described by Dr.
Singh as “the car accident did cause the final blow to the patient’s disc
bulging at a spot that was already weak and had some problems previously.”

[147]     I award
the plaintiff $48,000.00 in non-pecuniary damages.

MITIGATION

[148]     The
defendant has the burden of proving that Ms. Levens failed to mitigate her
damages. The basis of the defendant’s argument is that the plaintiff was
encouraged by Dr. Oyler and other medical advisors to exercise regularly. The
plaintiff said that she did not always follow Dr. Oyler’s advice, but she did
some exercises. That may have been helpful for her back problems, but her back
pain does not afford a large part of her award for pecuniary damages.

[149]     Ms.
Levens’ herniated disc was discovered in 2011. There is no evidence before me
as to whether exercise would have assisted her neck pain, or whether the pain
in her neck would have been made worse. Both Dr. Oyler and Dr. Chevalier
assumed the pain in her neck was myofascial pain.

[150]     The
defendant has not met the burden and I am not prepared to reduce Ms. Levens’
award.

COST OF FUTURE CARE

[151]     Ms. Levens
seeks $75,000.00 to satisfy her claim of future cost of care. To support this
claim, she relies on the report of Susan Woods dated May 5, 2013. Susan Woods
is an occupational therapist. Ms. Woods’ report makes no distinction between
Ms. Levens’ medical condition prior to the accident and her post-accident
condition when assessing her needs for future care. I would not have expected
Ms. Woods to do so as this concerns causation which is for the court to decide.
In her report, Ms. Woods does a functional review of Ms. Levens.

[152]     I have
reviewed Appendix B attached to Ms. Woods’ report, which is titled “Cost of
Future Care Analysis”. Ms. Woods recommends the cost of a physiotherapist, a
personal trainer, and an annual gym and pool membership. Given Ms. Levens’ lack
of enthusiasm for this kind of exercise, I do not think that Ms. Levens will
seek out a personal trainer or take out a pool or gym pass. It is likely that
she will seek physiotherapy and other modules to relieve pain.

[153]     Prior to
the accident, Ms. Levens had, for a number of years, a housecleaner come to her
home. At present, her 86-year-old partner, Mr. King, has household cleaning
provided to him by Veteran’s Affairs. I would expect that in the future, on an
ongoing basis, Ms. Levens will continue with housecleaning services. It may
very well increase as a result of the injury suffered in this accident, but
also as a result of her pre-existing back condition. It may be that Ms. Levens
would seek the advice of an occupational therapy ergonomic assessment, but this
too relates to her back injury which is, except for the increased pain, not a
result of the motor vehicle accident.

[154]     I accept
that in the event that she seeks attendant care as a result of back surgery, these
expenses in Ms. Wood’s report appear reasonable.

[155]     Ms. Levens
uses a lot of medication in order to deal with her pain. She is allergic to
Ibuprofen. I accept her evidence that she takes extra strength Tylenol and may
require other medications as set out in the schedule. She may very well need
some of the aids; for example, gel pillow and anti-fatigue matting.

[156]     I award
Ms. Levens the sum of $10,000.00 for future care.

COSTS

[157]     If counsel
wishes to address me on the matter of costs, they should do so by advising the
Manager of Supreme Court Scheduling within 30 days of the date of this
judgment. Otherwise, Ms. Levens will have her costs, disbursements, and taxes
that occur in Appendix B, Scale B.

SUMMARY

[158]     In
summary:

“H.C.
Hyslop J.”

HYSLOP J.