IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sanborn v. Whyley, |
| 2014 BCSC 426 |
Date: 20140314
Docket: M9589
Registry:
Campbell River
Between:
Cassandra Sanborn
Plaintiff
And
Sherry Lynn Whyley
and George Whyley
Defendants
Before:
The Honourable Mr. Justice Jenkins
Reasons for Judgment
Counsel for Plaintiff: | P.R. Higgs P.J. Field |
Counsel for Defendants: | R.K. Hornquist |
Place and Date of Trial/Hearing: | Campbell River, B.C. October 23 – 28, 2013 |
Place and Date of Judgment: | Campbell River, B.C. March 14, 2014 |
Table of Contents
B. The Day of the Accident:
September 26, 2006. 5
C. Symptoms of Injuries
Following September 26, 2006. 7
1. Medical Evidence of Dr.
Stephen Sohmer 13
2. Medical Evidence of Dr.
Stanley Leete. 18
3. The Evidence of Dr. Deborah
S. Allison. 20
C. Headaches and Cognitive
Difficulties. 25
A. Assessment of Non-Pecuniary
Damages. 27
C. Loss of Future Income Earning
Capacity. 28
D. Loss of Homemaker Capacity. 28
I.
Introduction
[1]
Cassandra Sanborn claims damages for injuries sustained in a motor
vehicle accident which occurred on September 26, 2006 in Campbell River, B.C.
At the time of the accident, Cassandra was 12 years of age and was a passenger
in a vehicle owned and driven by her mother, Caroline Sanborn. The defendants
have admitted liability.
[2]
The primary issue before the court in this action is causation. Specifically,
the issue is: did the defendants negligence cause the injuries for which Ms.
Sanborn claims compensation? The major injury for which Cassandra claims damages
is an injury to her right knee. The plaintiff also alleges the accident caused degenerative
changes to her right patella which manifested themselves in pain and
limitations, cognitive issues, and injuries to the right side of her head, and
to her neck and back.
[3]
In these reasons I will refer to the plaintiff as Cassandra to avoid
confusion between the plaintiff and her mother, both of whom testified at the
trial. No disrespect is intended in using the plaintiffs first name.
II.
Evidence and Facts
A.
The Plaintiff
[4]
Cassandra is currently 19 years of age. This action was originally
commenced by Mrs. Sanborn (whose name was previously Caroline Marie Jacques) as
litigation guardian of Cassandra. Once Cassandra reached the age of majority,
she filed a Notice of Coming of Age & Adoption of Proceedings.
[5]
The Sanborn family moved to Campbell River from Quebec in 2004. From 2004
until her high school graduation in 2012, Cassandra continued her education at
various schools in Campbell River.
[6]
Mrs. Sanborn described Cassandra as a shy, lonely child, who was
selective in choosing the few friends she had, but with her friends Cassandra
was happy, funny and more outgoing. Part of the shyness likely stemmed from
Cassandra not having spoken English before arriving in Campbell River. Once
Cassandra began to learn English, she began to be more active and involved in
the community but continued to be retiring.
[7]
At school, Cassandras marks in grades 5 and 6 (the two years leading up
to the accident), were below average in French, English and mathematics, but
above average in physical education.
[8]
Immediately prior to the accident Cassandra had started grade 7 at a
French language school and was involved in hip hop dance once a week for one
hour. I understand hip hop to be a synchronized, athletic, energetic dance
style involving quick, full-body movements and considerable exertion. I also
understand there is considerable up and down movement onto and off of ones
knees on the floor.
[9]
As well, Cassandra participated in physical education classes at school
which included dodge ball and other games. Her father, Gordon Sanborn,
testified that Cassandra had played some hockey, took figure skating lessons
for three years and had been skiing at Mt. Washington before the accident.
[10]
Before the accident, Cassandra was not involved in any other accidents
and was generally in good health. She had suffered migraine headaches before
the accident and had a history of Von Willebrands disease, symptoms of which
are bruising and bleeding. It precludes her from taking aspirin or Advil for
pain.
[11]
Mrs. Sanborn testified that no one had ever told her from grade one to
grade six that Cassandra was having any trouble in school. However, there is some
evidence to the contrary. Cassandras report cards from her schooling in Quebec
and Campbell River are included in Exhibit 2. The report cards demonstrate that
starting in 2002 Cassandra had C or D grades, indicating a little difficulty
or a lot of difficulty in many of her subjects in the Quebec school system. The
pre-accident report cards also indicate similar below-average grades in
Campbell River. I have trouble accepting Mrs. Sanborns ignorance of these
difficulties in school given that she is an involved parent who would have seen
the report cards and been informed of Cassandras difficulties. These
discrepancies lead me to question the credibility of Mrs. Sanborns evidence.
[12]
Based upon my observations of Cassandra during trial, I find she is a
most pleasant young woman. She was also described in the evidence as kind and
sensitive as well as delightful and I would not disagree with any of those
descriptions. She wishes to please and was generally honest and straight
forward in her answers, albeit with difficulty recalling events back to the
time of the accident, which is not surprising for anyone who was only twelve
years of age when the accident occurred.
B.
The Day of the Accident: September 26, 2006
[13]
While at school on September 26, 2006, Cassandra had been in her physical
education class and was hit in the face with a ball during a dodge ball game.
Mrs. Sanborn had been working at the school and on learning of the incident, in
an abundance of caution decided to take Cassandra to a doctor.
[14]
Mrs. Sanborn was driving her small Chevrolet vehicle (the Sanborn
vehicle) with Cassandra sitting in the front passenger seat. Cassandra had
engaged the lap and shoulder belt for her seat and was holding an ice pack on
her right eye. They were travelling on Evergreen St. through the intersection
at Dogwood St. in Campbell River when the defendants vehicle failed to stop
for a red light and struck the front right passenger side of the Sanborn
vehicle. The impact spun the Chevrolet to the left, turning it approximately 90
degrees from the direction of travel. Cassandra had not seen the defendants
vehicle coming from her right side. Her mother had seen a large black vehicle
approaching from the right and attempted to avoid a direct impact to the front
passenger door by starting to turn to the left. The point of impact on the
Sanborn vehicle was in the area of the front fender on the passenger side.
[15]
Cassandra testified that in the accident her whole right side shifted
towards and impacted with the passenger door, her head struck the passenger
door window which hurt badly and a bump arose on the back right of her head
within five seconds. The bump on her head went away after a couple of weeks.
There was inconsistent evidence as to the location of the bump on Cassandras
head as her father stated that the bump was near her right temple and was
bruised. Cassandras friend, Danielle Goulet, who joined Cassandra and her
mother after they left the hospital, testified that the bump on Cassandras
head was towards the back right of her head, which is consistent with Cassandras
evidence but inconsistent with that of her father. The clinical records of Dr.
Ralston of the Alder Medical Centre, where Cassandra attended shortly after the
accident, indicate that Cassandra complained of having struck her right temple
on the window.
[16]
Cassandra also testified that she was in shock and at the time did not
notice other injuries. The accident left Cassandra with a mark on her upper
torso caused by the seat belt when she was thrown to the right in the collision.
At trial Cassandra confirmed her evidence from her examination for discovery
that the outer portion or lateral side of her right knee hit the door on the
passenger side. Cassandra also stated that the outside of her right knee was
not bruised following the accident. There is also no evidence from the clinical
records at Alder Medical Centre of a bruise or swelling on the outside or
lateral area of her right knee following the accident.
[17]
The principal of the school where Cassandra was enrolled and her mother
was working had been following the Sanborn vehicle before the accident. Mrs.
Sanborn had planned, after taking Cassandra to the clinic, to go to the bank
with the principal to do some banking for the school. Upon seeing the accident,
the principal stopped to assist. At her mothers direction, Cassandra got out
of the Sanborn vehicle and into the principals vehicle, and they continued the
short drive to the medical clinic as, according to Mrs. Sanborn, that is where
she [Cassandra] had to go.
[18]
Dr. Ralstons clinical records include full neck extension, no
tenderness of spine, thus no major injury. Conclusion minor head injury and
other notes, but no notes regarding an injury to Cassandras right knee.
[19]
Mrs. Sanborn was taken to the hospital in Campbell River by ambulance.
Eventually the school principal drove Cassandra from the clinic to the hospital
to see Mrs. Sanborn. At the hospital, Cassandra complained of a headache and
asked the hospital staff for Tylenol, which they denied her as the hospital
staff had not attended to her.
[20]
That evening, Mrs. Sanborn advised Cassandras hip hop instructor that
Cassandra would not be attending practice. Mrs. Sanborn testified that both she
and Cassandra went to bed hurting everywhere and Cassandra had a big massive
bump on her head.
C.
Symptoms of Injuries Following September 26, 2006
[21]
In her evidence in chief, Cassandra stated she had no recall of the
first few weeks after the accident, but she remembers missing a few weeks of
school.
[22]
Since the accident, Cassandra stated she has suffered headaches two or
three times a week in the area of her right forehead and the headaches have not
changed in frequency. The headaches usually go away thirty minutes after taking
Tylenol. Since the accident, Cassandra has experienced only one migraine
headache.
[23]
Cassandra testified she experiences dizziness once in a while, not too
often, maybe twice a week but if she sits down, the dizziness goes away
after a few seconds.
[24]
Since the accident, Cassandra states that she suffers memory problems in
that she forgets tasks her mother assigns her, and needs to write lists and
appointments. Mrs. Sanborn testified at length about the memory problems Cassandra
has experienced since the accident, and about Cassandras inability to complete
some types of simple mathematical calculations. Cassandras cognitive problems
were the subject of an expert report prepared by Dr. Deborah Allison which I will
refer to later in these reasons.
[25]
Other symptoms the plaintiff claims have been caused by the accident are
anxiety, sleep deprivation, nightmares and depression. I will comment later in
these reasons on those symptoms.
[26]
Cassandra also testified she experienced lower back and neck pain
following the accident and that she suffered back pain when working at the
kennel. At her examination for discovery in September 2011, portions of which
were posed to Cassandra at trial, she was asked the following questions and
gave the following answers:
403 Q In
addition to the blow to the head – you told me about the
knee
– what other injuries? You had a mark on your neck on
the
right side. What other injuries did you suffer?
A Thats it.
404 Q You didnt injure your neck or back in
this accident?
A No
405 Q You never had any treatment for your neck
or back, did you?
A No
406 Q Thats correct?
A Yes
[27]
Also, the following portion of her examination for discovery, regarding
when her back pain commenced, was read to her at trial:
726 Q How
about non-prescription? You suggest you take Tylenol.
Thats
something probably every family has at home. Were
you
taking Tylenol after the accident?
A Yes
727 Q That would be for headache?
A Yes
728 Q For any other reason?
A My back.
729 Q What about your back?
A My lower back started hurting.
730 Q When?
A Two years ago
731 Q Sorry?
A Two years ago.
732 Q So in 2009?
A Yes
733 Q Do
you remember what you were doing when your lower back
started
bothering you?
A Just
walking around. If I walk too much, or if I stand for too
long.
734 Q It came on spontaneously? You woke up with
it one day?
A Yes
735 Q Did you go to the doctor about it?
A No
[28]
By far the most significant injury for which the plaintiff claims damages
is the injury to her right knee. Cassandra, her parents and several other
witnesses testified that Cassandra has continued to have pain in her right
knee, especially after physical activity including dance, sports and being on
her feet at work. For several months before trial, Cassandra had been working
at a local kennel attached to a veterinary clinic where the work involved
cleaning the kennel, walking dogs and other work caring for the dogs.
[29]
On October 2, 2006, Cassandra attended an appointment with Dr. Baerg,
her family doctor at the time, who also worked at the Alder Medical Clinic. Dr.
Baerg reported that, in addition to headache, Cassandra complained of
discomfort in her right medial knee, (the inside of the knee) and he concluded
she had suffered minor soft tissue injury.
[30]
Dr. Baerg saw Cassandra again on October 11, 2006, and reported that
she was doing very well except for a slight headache of the right temporal
region on most days. There was no mention at that visit of pain to Cassandras
right knee. Again on January 10, 2007, Cassandra went to see Dr. Baerg but
there is no record of any mention of injuries related to the accident.
[31]
On January 31, 2007, Cassandra went to see Dr. Baerg and reported
complaints of right patellofemoral syndrome pain. Her examination that day
was normal and Cassandra was told such growing pains were normal for her age
group.
[32]
On May 9, 2007, Cassandra once again visited Dr. Baerg and presented
again with patellofemoral and popliteal pain. Patellofemoral syndrome is, I
understand, a term used in medicine to describe knee pain when the physician is
unable to determine the cause of the pain. Popliteal pain is pain to the back
of the knee.
[33]
Cassandra continued to see Dr. Baerg on occasion up to April 7, 2010. On
that date, Dr. Baerg reported there was no mention of any knee symptoms from
that visit in 2007 until I saw her in 2010. When he saw her in 2010 at her
last appointment with him, it was for something unrelated to the knee pain.
[34]
Therefore, Cassandra only complained to her family doctor a couple times
in 2007 about knee pain, and her family doctor attributed these complaints to
growing pains and not to the accident.
[35]
At her examination for discovery, Cassandra was asked:
309 Q Did your legs come in contact with any
part of the vehicle?
A The side of my knee with the door.
310 Q That would be the right outer part of your
knee?
A Yes
311 Q Did you hit the door on the passenger
side?
A Yes
312 Q Was there a bruise there?
A No
407 Q What
about your knee where it was bruised on the outer right
side
there?
A It wasnt
bruised. There was nothing wrong with it. I just hit it.
[36]
Cassandra testified that starting in 2011 she could not kneel, crouch,
run and lift heavy stuff, but that she had always had pain after physical
activity from 2006 to 2011 which had been attributed to growing pains. She
stated that the first time her right knee really hurt I was at practice one
day and I felt my knee hurt and told my parents I could not play and thats the
only time it happened. Cassandra was referring to baseball practice during the
summer of 2007, which would have been approximately ten months after the
accident. She started to play basketball in grade eight but quit as shifting
movements required in basketball hurt her right knee. She played basketball
again in grade ten and stated it hurt inside the knee, it felt itchy, swollen
and hurt like it was hit by a hammer In order to relieve pain, Cassandra
would take Tylenol and would apply ice to the knee.
[37]
After the accident Cassandra stated she continued with hip hop dance but
only on a recreational, not competitive, level, which was once a week for one
hour. She eventually went to competitive hip hop dance in grade 12, which would
have been the school year 2011-2012. During the summer of 2011, Cassandra
trained to attempt to make the competitive hip hop team. Her training included
running for forty-five minutes each day and attending a hip hop dance boot
camp. Her friend, Danielle Goulet, testified that Cassandra was excited about
the upcoming competitive dance, and that in the summer of 2011 Cassandra ran a
lot, worked out and lost 15 pounds… she had been practicing a lot. Cassandra
was successful in making the hip hop team and participated in competitive hip
hop throughout her grade twelve year but did not go on the ground in practice
and did full moves only in competition, which had to be synchronized with
moves of the other team members. After two hour dance classes, she had to go
home and ice the knee and undertook no activity the rest of the night.
Cassandra stated that from 2006 to 2011 she had knee problems after dance
class, and felt knee pain while dancing. Cassandra testified that she continued
with competitive hip hop dance until the end of grade twelve in June 2012
[38]
In the late afternoon or early evening of February 13, 2012, Cassandra
was at home and started to go up the stairs from the basement when she felt a
very sharp pain in her right knee. She testified it felt like she had
dislocated her knee because it hurt so much but there had been no twisting.
She collapsed and was taken to a chair in the basement where ice was applied to
her knee. Later that evening she did go to dance class with her friends after
putting an over-the-counter brace on her knee. Cassandra stated that at
practice that evening she experienced a sharp pain in her knee and the
sensation that her knee had dislocated. Cassandra stated the knee was swollen
and ice was applied to her knee once again. This incident occurred during the
period when Cassandra was a member of the competitive hip hop team. Two of
Cassandras teammates, Danielle Goulet and Sumner Menegozzo, were with her at
home when the pain started on the stairs. Although no one witnessed Cassandras
fall, both friends and Cassandras parents corroborated at trial the problems with
her knee Cassandra had that evening.
[39]
Defence submits that the incident of February 13, 2012 has been the
cause, or at least is a major contributing factor, in Cassandras right knee
pain.
[40]
Following the February 13, 2012 incident, Mrs. Sanborn arranged for
Cassandra to see Dr. Anne Morrison, also of the Alder Medical Clinic. Mrs.
Sanborn had not been convinced that Cassandras knee problems could be
explained by growing pains as Dr. Baerg suggested and she wanted to get another
doctors perspective.
[41]
A letter from Dr. Morrison was entered into evidence. Dr. Morrison had
seen Cassandra for the first time on February 14, 2012 in connection with
Cassandras complaints of knee pain and description of having dislocated her
right knee. Cassandra was examined by Dr. Morrison and an extract from her
letter which was in evidence at trial was as follows:
My notes on Cassandra indicate a
normal range of motion and that she did have some swelling to her medial and
inferior patellar area. I did not comment on other areas of examination but
their absence in my notes indicates that these were normal. My initial
assessment was patellar dislocation, or, in retrospect, more likely patellar
subluxation. I sent her for x-rays and recommended physio as well as a referral
to an orthopedic surgeon. With regards to how I arrived at my diagnosis, I felt
that Ms. Sanborn had given me a history of patellar subluxation with possible
dislocation. She clearly felt she had the sensation of dislocation within her
knee. True dislocation is an extremely traumatic injury and although this was
written in the notes, I did not think that this was the diagnosis given the
history. Patients often have the sense that their whole knee is dislocating
when they have a patellar subluxation or dislocation. I thus assumed that,
given the areas of swelling, she was having some issues with her patella based
on her recent history.
[42]
Cassandra testified that since the knee dislocation (to use her term),
the knee pain has gotten worse. She described constant pain. I cant do any
physical activity and only work on upper body strength. She continued, I
cant run, my knee would collapse. My knee hurts and swells. I can walk, can go
up and down stairs really slow. I walk the Canyon View Trail. She described
the Canyon View Trail as having lots of up and down stairs, and stated that to
walk the trail takes one and one-half hours and her knee hurts in the end so she
has to go home to ice her knee.
[43]
Dr. Morrison referred Cassandra for X-rays of her knee and also to Dr.
Stephen Sohmer, an orthopaedic surgeon practicing in Campbell River. X-rays of
Cassandras right knee and her lumbar and thoracic spine were taken on February
15, 2012. The report from the Department of Medical Imaging at the Campbell
River & District Hospital included entries which referred to the reason for
the exam as R. patella dislocation yesterday, pain and swelling medial side.
The attending radiologist reported:
Patella somewhat elevated but no
definite fracture seen. A Skyline view of patella would be helpful. No definite
patellar or knee fracture identified. Small to moderate effusion suspected.
The patella skyline view taken February 22, 2012 was
normal.
D.
Medical Evidence
1.
Medical Evidence of Dr. Stephen Sohmer
[44]
Dr. Sohmer saw Cassandra for the first time on March 28, 2012. In his
report of that visit, Dr. Sohmer referred to
…an MVA back in 2007 and
some
possible patella issue from her history, but it does not sound like a patellar
dislocation. She injured the medial part of her knee. She recovered from that
but wasnt very active. She began being active about a year ago with dancing
and gym work and felt symptoms in the knee particularly in the inside part.
Dr. Sohmer also reported that the X-rays were normal and
Cassandra had a full range of motion in her knee. Dr. Sohmers March 28, 2012
letter did not contain any statements linking the motor vehicle accident to Cassandras
complaints of pain in her right knee. (Although Dr. Sohmer noted a motor
vehicle accident in 2007, I am satisfied that he was referring to the September
26, 2006 accident.)
[45]
Dr. Sohmer testified that as part of Cassandras history he was made
aware that Cassandra had been in a motor vehicle accident, but that he had not
been advised of any details of the accident. He also stated that at that time
he was not looking for the cause of Cassandras complaints regarding her knee
as he would be when retained by counsel for a medical-legal report. As treating
physician, he was looking to find some relief for Cassandra from the pain she
was experiencing in her right knee. As part of his investigation, Dr. Sohmer
recommended arthroscopic surgery.
[46]
During his first meeting with Cassandra Dr. Sohmer also did not have the
benefit of the clinical records from the physicians at Alder Medical Centre and
had relied upon his physical examination of Cassandra, the X-rays, and the
subjective history provided to him by Cassandra and her mother.
[47]
Dr. Sohmer performed arthroscopy on July 5, 2012, almost six years after
the accident. In his Operative Report, Dr. Sohmer stated:
… The patella had an area of
type 2 and type 3 wear on the most medial part of the patella. The rest of the
patellofemoral joint was normal. The gutters were free of loose body and
debris. The medial side of the knee showed normal-looking femoral and tibial
articular surfaces and normal-looking meniscus. We probed the medial meniscus
and it was stable throughout. We looked in the notch and the ACL and PCL looked
normal. We probed and they were fine. The lateral side of the knee had
normal-looking femoral and tibial articular surfaces and normal-looking
meniscus which was probed and was normal. We flipped our portals back and forth
to have a good look at the meniscus which was probed and was normal. We then
went back to the patellofemoral joint and debrided the type 2 wear. We examined
the type 3 wear and there was cartilage present with no exposed bone with some
softening. The area was approximately 2 to 1.5 cm which was affected. Given the
complete coverage, we did not proceed with microfracture or any other
procedure.
[48]
There was no reference in the Operative Report to the motor vehicle
accident and whether the accident may have caused any injury to Cassandra.
[49]
On cross-examination, Dr. Sohmer agreed that although he had suspected
after examining Cassandra that she had damage to the meniscus on the medial or
inside of the knee, the arthroscopic surgery found only wear in the cartilage
and the rest of the surfaces in the knee were all in good condition. Dr. Sohmer
also agreed that if Cassandra had suffered a traumatic event to the outside or
lateral side of her right knee, as would have been the case when her knee hit
the door on the passenger side of her mothers vehicle, it is likely that there
would have been damage to the outside or lateral part of the knee, and it would
be unlikely to have caused only damage to the medial of the knee. In this case,
Dr. Sohmer stated that the scope found no damage on the lateral side of her
right knee.
[50]
Dr. Sohmer provided a medical-legal report to counsel for Cassandra on
September 27, 2012 in which Dr. Sohmer stated: This opinion is based on my
role as the patients treating Orthopaedic surgeon.
[51]
On cross-examination at trial, Dr. Sohmer agreed that as Cassandras treating
orthopaedic surgeon, he was less concerned with causation than when he is
retained by a lawyer to give an opinion on the cause of injuries. It is
somewhat surprising, therefore, that he qualified his medical-legal report by
saying it was based on his role as treating surgeon. I interpret these to mean
that in preparing his medical-legal report of September 27, 2012, Dr. Sohmer
was not undertaking as complete an investigation into causation as he would
have were he strictly retained to provide an expert report on causation of the
injuries.
[52]
After referring to the records which he had reviewed prior to writing
the report, his records of his original meeting with Cassandra and his records
of the arthroscopic surgery of July 5, 2012, Dr. Sohmer concluded in his report:
The diagnosis is posttraumatic patella OA.
I believe the motor vehicle
accident to be the direct cause of the chondral damage to the patella.
The only chondral damage to the patella was observed by Dr.
Sohmer on the medial, or inside, part of Cassandras right knee. Therefore, this
opinion that the accident caused the damage seems inconsistent with Dr.
Sohmers testimony that trauma to the lateral side of the knee in the accident
would likely have caused damage to the lateral, or outside, surface of the
knee.
[53]
The following parts of the cross-examination of Dr. Sohmer are of
particular interest:
a)
Dr. Sohmer was referred to several entries from the Alder Medical
Centres medical records, many of which he had not seen at the time he prepared
his opinion of September 28, 2012. He was referred to Dr. Wilcoxs September
27, 2011 clinical record in which Dr. Wilcox stated:
Bilateral knee pain since starting
dance. No effusions. Pain with compression of the patellae. Apparent patello
femoral pain. Will arrange physio to instruct her about exercise. NSAIDS will
help as well.
Dx Painful knees….patello femoral syndrome
Dr. Sohmer stated that
bilateral knee pain refers to pain in both knees and the diagnosis refers to both
knees (plural) being painful. He also stated that patellofemoral syndrome is
a term commonly used by physicians for knee pain when they cannot find the
cause of the pain, and that such pain is commonly brought on when one begins
serious exercise or activities, such as hip hop dance. In this case, Cassandra
had commenced competitive hip hop dance in September 2011. It is also worth
noting that this entry by Dr. Wilcox was the first mention of knee pain in any
of the Alder Medical Centres clinical records since May 9, 2007. The clinical
records do not make any other references to knee injuries until February 14,
2012. Dr. Wilcox recommended anti-inflammatories and suggested Cassandra visit
a physiotherapist for an assessment of appropriate exercise programs.
b)
As noted above, Cassandra fell on the stairs in her home on
February 13, 2012 and went to see Dr. Morrison the following day. Dr.
Sohmer admitted on cross-examination that he did not have Dr. Morrisons
February 14, 2012 clinical record before him when he prepared his medical-legal
report of September 27, 2012. That clinical record states:
Trouble with insomnia x 2 weeks.
Has initial insomnia and waking up throughout night. Falls asleep around 2:30
a.m.
Exercising frequently, no caffeine.
Info given re: sleep hygiene
To try Melatonin and then fup prn
Pain to R knee and mid-low back
since MVA Sept 2007. Had knee dislocation in the past and then happened again
yest. Medial dislocation. Happened while wearing brace.
O/ N ROM
Swelling medial and inferior
patellar area
A/ patellar dislocation
P/ for xr
Refer to physio, ortho
Pain to back since MVA. Hurts with prolonged sitting or
standing.
Dr. Sohmer agreed that
something significant, in terms of Cassandras right knee, had occurred the day
before Dr. Morrisons February 14, 2012 examination. He also agreed that if
Cassandra had fallen onto the stairs the day before and felt extreme pain and
iced her knee, the extreme pain could be consistent with her dislocating her
knee when she fell on the stairs.
c) Also when
referred to the X-ray clinical record of February 16, 2012 which referred to R
patella dislocation yesterday. Pain and swelling medial side, which was the
first reference to effusion or swelling in Cassandras right knee, Dr. Sohmer
agreed the fall of February 13, 2012 could have caused the injuries he
identified during the arthroscopic surgery.
d) The arthroscopic
surgery confirmed there was no damage to the chondral surface of the lateral
part of Cassandras right knee. As noted, Dr. Sohmer agreed that if Cassandra
had struck the outside of her right knee during the accident, he would have
expected there to be damage to the surface of the lateral or outside of the
knee and possibly damage to the medial side of the knee. Dr. Sohmer stated that
it is unlikely that if Cassandra struck the outside of her knee on the door,
the only damage to the knee from that blow would be to the medial side of the
knee.
e) Dr. Sohmer
agreed that there was no trauma to the medial side of Cassandras right knee
from the accident, which is consistent with the medical records of the Alder
Medical Centre.
[54]
On two occasions Dr. Sohmer recommended an aggressive strengthening
program, which Cassandra never undertook. As Cassandra claims to have
continuing pain in her right knee which limits her activities and has an effect
on her outlook, I would find that failure to follow treatment suggested by her
orthopaedic surgeon amounts to a failure to mitigate.
2.
Medical Evidence of Dr. Stanley Leete
[55]
Dr. Leete is an orthopaedic surgeon who has retired from his clinical
practice and has limited his practice to a consulting role. Dr. Leete worked
with Dr. Sohmer for many years in Campbell River.
[56]
Defence counsel retained Dr. Leete in July 2013 to establish the
injuries sustained by Ms. Sanborn in the September 28, 2006 motor vehicle
accident. Dr. Leete acknowledged that the passage of time from the accident in
2006 until the time he was retained almost seven years later made it difficult
to come to a conclusion on the cause of Cassandras injuries.
[57]
On July 10, 2013, Dr. Leete met with Cassandra and her mother in
Campbell River. He stated in his report that he assumed that the history Cassandra
and Mrs. Sanborn gave him was correct in every detail. Unfortunately, the
history provided to him was incomplete. For example, Dr. Leete did not appear
to be aware of: the incident of February 13, 2012 when Cassandra fell on the
stairs in her home; the details of the accident including how Cassandras
right knee may have been impacted; the extent of the physical activity
required of Cassandra in her hip hop dance classes and competition; and the extent
of the activity, such as lengthy runs, required for Cassandra to get into
sufficient physical condition to qualify for competitive hip hop. Dr. Leete was
also told that Cassandra had not been able to undertake any athletic pursuits.
Dr. Leete was also advised that Cassandra suffered pain in her right knee, low
back and cervical spine from the date of the accident, which is not consistent
with Cassandras evidence. I also note Dr. Leetes comment in his report that [f]rom
time to time during the interview that I had with her, she would look for
advice from her mother regarding dates and past treatment. As a result it is
not possible to determine whether information was passed on to Dr. Leete by
Cassandra or her mother.
[58]
The conclusions reached by Dr. Leete in his report included the
following:
At the time of her motor vehicle accident, Miss Sanborn
appears to have sustained:
3. In her right knee,
she has the earliest manifestations of osteoarthritis of the knee which is
posttraumatic in origin and I would agree with Dr. Sohmer that the most likely
etiology for this is the direct blow at the time of the accident.
Dr. Leete then proceeded to
discuss how Cassandras knee will likely deteriorate over time and require
surgical replacement of the knee joint in the distant future, perhaps within 20
to 25 years. As well, Dr. Leete noted that Cassandras ability to enjoy leisure
activities would be compromised and that the discomfort would also interfere
with her employment. Regarding pain in Cassandras neck and back, Dr. Leete
stated:
4. In her neck and
lumbrosacral spine, she appears to have a chronic myfascial type of pain and I
think it is unlikely that she can anticipate any significant relief of the
discomfort from which she currently suffers.
[59]
Dr. Leete admitted at trial that there was no dislocation or sublimation
of the right knee in the motor vehicle accident as if that were the case, it
would be apparent because Cassandra would have experienced severe pain at the
time.
[60]
Dr. Leete agreed that the trauma to Cassandras right knee could have
been caused by athletic movements, such as knees hitting on a hard surface. It
is common for participants in competitive hip hop to get onto and off of their
knees, up and down from the floor, and hitting a knee is not uncommon.
[61]
Finally, Dr. Leete agreed with Dr. Sohmers opinion that if a traumatic
event occurred to the lateral (or outside) portion of a knee which caused
damage to the medial (or inside) side of the knee, there would also be damage
to the lateral side of the knee.
[62]
In conclusion, I do not find Dr. Leetes evidence to be supportive of
the plaintiffs claim that the injury suffered to her right knee was caused by
the accident of September 26, 2006. Based on his report and listening to his
evidence under cross-examination, I find that Dr. Leete was quick to jump to
his opinions, and that the evidence was not before him that would have allowed
him to determine on a balance of probabilities that Cassandras knee injury was
caused by the defendants negligence.
[63]
In his opinion of July 15, 2003, Dr. Leete found that Cassandras neck
and lumbosacral spine injuries have led to a chronic myofacial type of pain, that
is, neck and back pain. It appears from his report that Dr. Leete based this
opinion on the history taken from Cassandra and her mother, which makes its
reliability dubious. He also agreed that there were no clinical records from
the Alder Medical Centre recording injuries to Cassandras neck and back.
3.
The Evidence of Dr. Deborah S. Allison
[64]
As mentioned earlier in these reasons, Cassandra was assessed by Dr.
Allison, a psychologist practicing in Victoria whose experience has primarily
been in adult neuropsychology and adult psychology. Dr. Allison saw Cassandra
on May 13 and 14, 2013. Although Dr. Allisons report of June 12, 2013 was
entered into evidence, defence counsel did not require her to attend for
cross-examination at trial.
[65]
I understand Dr. Allisons report was entered to establish a link
between the September 2006 accident and the various cognitive difficulties
Cassandra has been experiencing.
[66]
The following extracts from Dr. Allisons June 2013 report are
particularly significant to the issues before me in this case. In the Relevant
History portion of the report Dr. Allison wrote:
Ms. Sanborn was given a psychoeducational assessment by a
registered psychologist, Dr. C. Davis, in the spring of Grade 7, due to
difficulty in school. Dr. Davis reported that Ms. Sanborn had performed
consistently below average in French, English, and Math since starting school
in Quebec and was continuing to display difficulty with Math, in particular, at
the time of the assessment. …
Ms. Sanborn told Dr. Davis that
she had migraines approximately twice per month and difficulty sleeping several
times per week. Dr. Davis also commented that Ms. Sanborn had sustained a
concussion in a motor vehicle accident in 2006 but added there were no long
term problems from this.
[67]
Although in her letter of March 7, 2007 Dr. Davis made reference to
Cassandra suffering a moderate cerebral concussion following a car accident
last September 2006, it is not clear whether Dr. Davis had medical evidence of
a concussion or whether her information regarding a concussion came from the
history she took from Mrs. Sanborn. There is no diagnosis of a concussion in
the medical evidence and the medical records of Alder Medical Centre from the
day of the accident make reference only to a minor head injury. It may well
be that Cassandra did suffer a concussion; however, that conclusion cannot be
reached on the evidence before me.
[68]
At page 6 under the general heading of Test Results and General
Intelligence / Language, Dr. Allison stated:
Ms. Sanborn was found to have
significant weaknesses in both language and math skills when she was assessed
in 2007 and the current results were consistent with that assessment. It is
possible that these findings were secondary to the concussive injury which
occurred in the motor vehicle accident of 2006 but it is also possible, given
her reported difficulty in school from prior to that accident, that these
weaknesses pre-existed the motor vehicle accident of 2006.
I note that in the above paragraph Dr. Allison referred
to the possibility that Cassandras difficulties in language and math could
stem from the concussive injury in the 2006 accident, but could also have
preceded the accident. Dr. Allison does not find that these weaknesses,
otherwise referred to in the evidence as cognitive issues, were most likely
caused by the accident of 2006.
[69]
At page 10, after Dr. Allison had discussed several tests that had been
administered to Cassandra, concluded:
The clinical scales were marked by significant elevations,
suggesting that she is struggling with marked distress, particularly secondary
to physical problems. These problems have caused her to feel tense and unhappy
to such an extent that her ability to concentrate on and to perform important
life tasks is impaired. In addition, she reported experiencing a marked degree
of anxiety which includes engaging in some maladaptive behaviour patterns
intended to control her anxiety. She likely has experienced a traumatic event
in the past which continues to trouble her and to produce recurrent episodes of
anxiety. Finally, she also indicated that she was experiencing relatively mild
depressive symptoms. No strong diagnoses could be made on the basis of this
questionnaire but several possible diagnoses were suggested, including
posttraumatic stress disorder and somatization disorder. Given her known
physical injuries (including the development of posttraumatic osteoarthritis in
her knee which reportedly affects her functioning and her sleep on a daily
basis) the diagnosis of somatization disorder is not appropriate.
In addition, during the interview for this assessment Ms.
Sanborn reported experiencing ongoing driving-related anxiety (such that she is
unable to drive herself anywhere outside of her home community) and nightmares
regarding motor vehicle accident.
These results indicate that Ms.
Sanborn was continuing to experience symptoms of posttraumatic stress disorder
related to her motor vehicle accident at the time of this assessment. In
addition, Ms. Sanborn was experiencing relatively mild depressive symptoms,
mostly related to her physical status. The combination of significant anxiety
and mild depression could impair her ability to concentrate.
She continued at page 11:
Based upon the history as it has
been reported, in my opinion any possible concussive injury secondary to this
accident would have been mild and has probably healed entirely by this time.
In these paragraphs, Dr. Allison once again very carefully
worded her report, stating the PTSD symptoms were related to her motor vehicle
accident, but there has not been a diagnosis of PTSD. Also, Dr. Allison
referred to how the anxiety and mild depression could impair her ability to
concentrate.
[70]
The defence has submitted that very little weight should be placed on Dr.
Allisons report since it relied heavily on the history taken by her from
Cassandra and her mother, which defence submits is unreliable, to draw her
conclusions. I do not conclude that Cassandras evidence is necessarily
unreliable. She admitted that her right knee was not bruised in the accident
and that her neck and back problems were not caused by the accident, but did
state that her headaches were caused by the accident, which is likely. I do
find, however, that Mrs. Sanborns evidence is unreliable. I have no doubt that
she has seen her daughter suffering in many ways; however, Mrs. Sanborns
evidence as to Cassandras conditions including the injuries emanating from the
accident is quite different from Cassandras evidence and Mrs. Sanborn was
quick to point to the accident as the cause of all of Cassandras problems. Based
on all the evidence outlined above, I do not believe this is the case. Therefore,
as I outline below in my findings on causation, I do give Dr. Allisons report
some weight, but only to the extent that I accept the underlying facts and
evidence about the injuries.
III.
Causation
[71]
The test for causation is the but for test; that is, the plaintiff
must prove on a balance of probabilities that but for the defendants
negligence, the injuries would not have been incurred by the plaintiff: Clements
v. Clements, 2012 SCC 32 at para. 8.
A.
Knee injury
[72]
I do not find that the ongoing right knee problems flow from the
accident, although Cassandra may have suffered some pain in her knee from the
impact with the passenger side door. If so, that pain was relatively short
term. If there had been any serious problem with Cassandras right knee
following the accident, it would have been apparent before the incident of
February 2012 which occurred on the stairs in her home and then at hip hop class
that night. It is more likely that the pain experienced by Cassandra in her
right knee is as a result of the incident of February 12, 2012 and/or the
vigorous physical activity and movements required for competitive hip hop dance.
[73]
During the summer of 2011, Cassandra stated that she was in the best
shape of her life, was running 45 minutes per day, lost approximately 15
pounds, and attended hip hop boot camp, all in her determination to be
accepted into the competitive hip hop dance team. Only once Cassandra had
undertaken such vigorous exercise including the energetic and demanding
movements required in competitive hip hop did she begin to suffer pain in her
right knee. There were no medical records indicating any pain in her right knee
between May of 2007 and September of 2011, the latter time being when Cassandra
had taken on competitive hip hop dance.
[74]
Most significantly, both Dr. Sohmer and Dr. Leete agreed that if the
accident caused trauma to the lateral part of Cassandras knee during the accident
that caused injury to the medial part of her knee, there would also be damage
to the lateral part of the knee. In Cassandras case, there was no damage found
or reported to the lateral side of her right knee. Therefore, I understand that
a sudden traumatic event to the lateral side of Cassandras knee, which is what
would have occurred when the defendants vehicle struck the front passenger
side of the Sanborns vehicle, likely did not occur as there was no damage
found to the lateral side of her right knee.
[75]
In addition, I accept Dr. Leetes and Dr. Sohmers evidence that a
dislocation or sublimation of the knee would be evident because it causes
extreme pain. There is no evidence of extreme pain in Cassandras knee at the
time of, or shortly after, the accident. However, there is evidence of extreme
pain at the time of the February 2012 incident. I also find, after a review of
the evidence of Dr. Sohmer and Dr. Leete, that there is no connection between
the motor vehicle accident of 2006 and the injuries suffered in February 2012.
[76]
There is no other evidence that would link the injury to the medial part
of Cassandras knee to the accident. On a balance of probabilities, therefore,
the injury to Cassandras knee has a cause other than the accident.
B.
Neck and Back Injuries
[77]
While Dr. Leetes report states that Cassandra suffered neck and
lumosacral spine injuries in the accident that have caused a chronic myofascial
pain, I put little weight on that evidence as it was based on the history taken
from Cassandra and her mother, and there are no clinical records from the Alder
Medical Centre of injuries to Cassandras neck and back. It is also clear from
the evidence that Cassandra has never had any treatment for neck and back
injuries. As a result, although I suspect Cassandra may have suffered some
bruises and muscle pain from the accident, such injuries were short-lived and
are not the cause of the neck and back pain she continues to experience. In
conclusion, I find that the but for test set out in the Clements has
not been satisfied on a balance of probabilities. The accident did not bring
about Cassandras long term neck and back injuries.
C.
Headaches and Cognitive Difficulties
[78]
Although it is apparent that Cassandras head struck the passenger side
window in the accident, most likely in the area of her right temple, there is
no medical evidence that she suffered a concussion. I find, however, that on a
balance of probabilities, the headaches suffered by Cassandra, especially in
the years immediately following the accident, were caused by the impact of her
head with the passenger window.
[79]
The cognitive difficulties in issue are, more specifically,
Cassandras struggles in math and languages at school and memory issues. Even
assuming there had been a concussion, Dr. Allison did not conclude that it
caused the cognitive difficulties; rather, she opined that cognitive issues
could have preceded the accident or been caused by it, and that anxiety and
depression related to the motor vehicle accident could impair her
ability to concentrate [emphasis added]. Cassandras report cards clearly
demonstrate that she struggled in school both before and after the accident. I do
not accept, on a balance of probabilities, that Cassandras cognitive
difficulties were caused by the accident.
[80]
I do accept that the shock and impact of the accident has most likely caused
Cassandra to have some anxiety and fear of driving. Dr. Allison opined that
Cassandra had cognitive issues related to her pain and anxiety, the latter
expressed through her fears of driving and not driving outside of Campbell
River. Being in an accident such as the one described could cause considerable
upset to a twelve year old, the effects of which would not easily dissipate.
Even though Cassandra did obtain her learners license and new drivers license
without difficulty, I find that she does experience anxiety while driving,
especially in certain situations that could remind her of the accident.
[81]
Dr. Allison attributed Cassandras loss of sleep to the physical pain
suffered by Cassandra which I find was not, especially as of 2013 when
Cassandra was assessed by Dr. Allison, caused by the accident. Almost seven
years passed between the accident and Dr. Allisons assessment of Cassandra.
The pain being described to Dr. Allison was largely right knee pain, headaches
and neck pain. As of 2013 when Dr. Allison assessed Cassandra I do not find
that any knee pain, neck pain and headaches then being suffered by Cassandra
were likely caused by the accident. Considering this length of time, I am not
surprised that Dr. Allison was not convinced that the symptoms described by
Cassandra and her mother were caused by the accident of 2006. There is
therefore insufficient evidence linking the sleep deprivation to the accident.
[82]
In summary, I do not find that the cognitive issues affecting Cassandra
have been caused by the accident, save that she likely has suffered some
anxiety from the accident which has affected her confidence while driving or
travelling as a passenger in a motor vehicle. The other cognitive issues from
which she continues to suffer were more likely to have pre-existed the accident
of 2006.
D.
Other Injuries
[83]
I find that as a result of the accident, Cassandra suffered a bruise and
bump to the right side of her head in the area of her temple and also
experienced headaches, likely for one to two years following the accident. The
impact of the accident was significant and I do not doubt that Cassandra had
bruising and seat belt marks to her body, that she likely felt stiffness and
pain for several months after the accident, and that the shock of the accident
has had a lasting effect.
IV.
Damages
A.
Assessment of Non-Pecuniary Damages
[84]
On the basis of the cognitive issues and injuries to the right knee neck
and back the plaintiff alleges were caused by the 2006 accident, the plaintiff
sought non-pecuniary damages of $100,000. I have not found the accident to have
been the cause of those injuries and so the authorities provided by plaintiffs
counsel are not particularly helpful. I note that some of the authorities
provided by counsel for the plaintiff included findings of non-pecuniary
damages of about $70,000. Counsel for the defence submits an appropriate award
for non-pecuniary damages is in the range of $25,000 to $30,000 following a
reference to the criteria for awarding non-pecuniary damages set out in Stapley
v. Hejslet, 2006 BCCA 34.
[85]
Considering the factors set out in Stapley and the head injury, minor
bruising, seatbelt burns, the shock of the accident, the lasting effects on
Cassandra of an accident of considerable impact, and the emotional fallout from
the same, an award of $40,000 for non-pecuniary damages is appropriate in this
case.
B.
Cost of Future Care
[86]
The plaintiffs costs of future care include psychotherapy for her
driving related anxiety. In Cantin v. Petersen, 2012 BCSC 549, the court
found that a claim for future care costs must have a medical justification and
the claim must be reasonable.
[87]
Dr. Allison provided a supplementary report regarding the number of
psychotherapy sessions that may be required by the plaintiff to alleviate her
driving-related anxiety but did not actually provide an answer. She did indicate
that a minimum of twenty therapy sessions could be required, but she stated that
Cassandra must firstly be referred for three sessions to allow the treating
psychologist to assess the number of sessions that may be required. I believe
it is in Cassandras best interests to set an amount for these costs. I
accordingly award $3,500 for the costs of therapy to alleviate the plaintiffs
driving apprehensions.
[88]
As I have found Cassandras knee problems are not related to the
accident, I dismiss the claim for the cost of aqua-size therapy.
C.
Loss of Future Income Earning Capacity
[89]
Plaintiffs counsel submits the plaintiff has suffered a significant
loss to her ability to earn income in the future due to her knee injury which
was alleged to have been caused by the accident of 2006. As stated above, I
have not found Cassandras knee injury was caused by the accident. Accordingly,
this claim is dismissed.
D.
Loss of Homemaker Capacity
[90]
The plaintiff claimed that the knee injury and injuries to her neck and
back have affected her ability to complete housekeeping tasks. Again, as I have
not found the accident to be the cause of these injuries, this claim is
dismissed.
V.
Costs
[91]
At this time, I am not prepared to make an order as to costs. If the
parties cannot reach agreement, I will receive submissions in writing no later
than April 15, 2014.
Jenkins J.