IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Giczi v. Kandola, |
| 2014 BCSC 508 |
Date: 20140326
Docket: M103947
Registry:
Vancouver
Between:
Suzanne
Marie Giczi
Plaintiff
And
Sandip
Kandola
Defendant
Before:
The Honourable Mr. Justice Sigurdson
Reasons for Judgment
Counsel for the Plaintiff: | John M. Cameron |
Counsel for the Defendant: | Michael D. Murphy |
Place and Date of Trial: | Vancouver, B.C. June 24-25, 27-28, |
Place and Date of Judgment: | Vancouver, B.C. March 26, 2014 |
III. BACKGROUND & OVERVIEW
OF PLAINTIFFS CLAIM.. 4
A. Positions
of the Parties. 11
B. Medical
and Lay Evidence Concerning Non-pecuniary Damages. 12
C. Discussion
& Conclusion. 28
V. PAST AND FUTURE LOSS OF
EARNING CAPACITY. 32
B. General
Law on Loss of Past and Future Earning Capacity. 32
C. Positions
of the Parties on Loss of Past and Future Earning Capacity. 33
1. Lay
Witness Opinion Evidence. 37
c) Discussion
& Conclusion. 40
2. Discussion
of Real and Substantial Possibility. 44
a) Plaintiffs
Income Earning History. 45
E. Assessment
of the Plaintiffs Loss. 48
I.
INTRODUCTION
[1]
The plaintiff suffered personal injuries when she was involved in a
motor vehicle accident on August 14, 2008 in New Westminster, B.C. The
defendant admits liability.
[2]
The plaintiff asserts that she now suffers from a chronic pain condition.
Although the defendant does not dispute that, he asserts that to a significant
extent the plaintiffs pre-accident condition was poorer than she admits, and
she is not as badly injured from the accident as she contends. The most contentious
issue at trial was the plaintiffs past and future loss of earning capacity. The
plaintiff asserts that the accident has significantly affected her ability to
earn income, including her ability to sing, and has destroyed her opportunity
to perform in that capacity particularly as a Bette Midler tribute performer.
The defendant, on the other hand, disputes that the plaintiff has established a
real and substantial possibility of future events leading to an income loss,
and suggests that any award for any impairment of her past and future earning
capacity should be a modest one.
[3]
A number of the plaintiffs witnesses testified about the plaintiffs
ability and future prospects as a tribute singer. The defendant asserts that
much of this evidence is inadmissible. I heard this evidence subject to the
defendants objection, on which I will rule in these reasons for judgment.
[4]
The plaintiff also claims general damages, damages for cost of future
care and special damages.
[5]
The defendant asserts that the plaintiff has failed to mitigate her
damages. The defendant says that if the Court finds that the plaintiff has a muscle
tension disorder which affects her singing ability, and which relates to neck
spasms as the plaintiff asserts, a strength and conditioning program
recommended by Dr. OConnor (a physiatrist) or other treatments
recommended by a speech pathologist would have improved her condition. The
plaintiff says that the defendant has failed to discharge the onus on him to
establish that the plaintiff acted unreasonably and failed to do recommended
exercises, and that her failure to do these exercises or other treatments would
have improved her condition.
II.
ISSUES
[6]
The issues between the parties are the appropriate award of damages in
the following categories:
·
non-pecuniary damages, including loss of housekeeping the
plaintiff seeks an award of $225,000, but the defendant says the appropriate range
of damages is between $65,000-$75,000;
·
the appropriate amount for past loss of earning capacity and
future earning capacity loss the plaintiff, while recognizing that the award
is subject to reduction for various contingencies, suggests an award in the
range of $375,000 for past loss of earning capacity and suggests a starting
point of $1,535,000 for impairment of future earning capacity. The defendant
says that the appropriate award is a nominal amount under each head of damage
for income loss;
·
cost of future care the plaintiff claims an amount in the range
of $75,000 or slightly less, whereas the defendant acknowledges that the
injuries the plaintiff suffered have played a role in the problems with her
voice but says that $2,500 is an appropriate amount for
physiotherapy/rehabilitation and voice therapy costs;
·
special damages the plaintiff claims $9,256 and the defendant
suggests a slightly lower amount.
III.
BACKGROUND & OVERVIEW OF
PLAINTIFFS CLAIM
[7]
The plaintiff was born in Manitoba in 1966. She is 48 years old. Singing
has always been an important part of her life; it helped her overcome a youthful
stuttering problem and to deal with shyness. She loved to sing in public. By
age 15, she was performing in clubs and pubs, having received special
permission from the Liquor Board to appear as an underage performer. While
still a teenager, she was considered by a record company for a recording
contract. As an 18-year-old, she formed a band called Nightside, later a band
called Good Question, and by age 20 she was singing jingles for commercials. In
her early 20s, she worked as a backup singer to the Wailin Demons headed by
Jack Lavin, a well-known local musician. She performed under the name Suzanne
Giczi and formed her own band, which was locally successful.
[8]
In 1993, at the age of 27, she was signed by Tomcat Records and released
an album called Fallen Angel, which yielded six singles that received airplay.
She opened for Blue Rodeo at the Salmon Valley Festival in 1994, and performed
again in that festival in 1996. After breaking up with her manager at Tomcat
Records, she engaged a new manager in 1997, and performed at the B.C. Country
Music Awards. That year, she made a video for the Multiple Sclerosis Society of
her rendition of Silent Night, which became popular. However, difficulties with
her new manager over a government sponsorship program ended that business
relationship.
[9]
She performed for Canadian troops overseas, and was asked to emcee a
morning radio program on a local country station but turned it down. By early
2000, at the age of about 34, she found herself disenchanted with the music
industry.
[10]
The plaintiff met Russell Marsland, now her common-law husband, a
talented local guitar player and the founder of the R&B Allstars, a
well-known Vancouver band. Mr. Marsland was the musical director for the
Bobby Curtola show. For a while in around 2001, Ms. Giczi sang back-up
for Bobby Curtola.
[11]
In 2001, the plaintiff started painting as a part-time job. This sometimes
involved intricate painting of expensive homes, faux-finishing (making walls
and pillars look like marble), as well as gilding and gold-leafing. The
plaintiff and Mr. Marsland painted together between1999-2004; they also
performed musically as Marsland & Giczi, or the Marsland Giczi Band.
[12]
In 2003, the plaintiff had an accident where she fell backwards and struck
her head. As a result she suffered bad headaches and some neck pain. However,
she continued painting and performing music, including singing at Rossinis
restaurant in Gastown as part of a Louis Prima tribute show.
[13]
In early 2004, the plaintiff met Frank Gigliotti, an entrepreneur and
wine maker. Mr. Gigliotti had a plan to reinvent the plaintiff as a new
artist, Olivia Black. He had built a studio above his winery and retained
Miles Black, a local musical producer and session musician, to collaborate with
Ms. Giczi and another artist. Mr. Gigliotti also recommended that the
plaintiff see his chiropractor, Dr. Khan, for her headaches and neck pain.
[14]
In this period, the plaintiff recorded a number of songs with Miles
Black.
[15]
The plaintiff performed with Bobby Bruce in his show as a backup singer
in 2003 or 2004. Mr. Bruce, who is well-known for his successful Neil
Diamond tribute show called Nearly Neil, testified at trial. At Mr. Bruces
suggestion, Ms. Giczi started to develop her own show as a Bette Midler
tribute singer. She researched Bette Midler — her style and her songs — and
learned how to mimic her. With the help of Mr. Marsland, she began
getting charts together for the musicians and picking a band. In 2004, she performed
a few songs as Bette Midler with Mr. Bruce at his Nearly Neil show at the
PNE.
[16]
By 2005, she performed a full Bette Midler show with a band, first at
the PNE in August, and then at the Cascades Casino in Langley in September. The
show was called BetteRageous and I will refer to it in these reasons as that
or as the Bette Midler show. It was through the assistance of Edie Perala, the
booking agent for Bobby Bruces Neil Diamond tribute show, that the plaintiff was
booked to play the Cascades Casino gig in September 2005.
[17]
The August 2005 BetteRageous show at the PNE was booked by Jodi Smith,
the booking agent for the PNE. The band included Robbie Buchanan, a highly
regarded producer who has produced many of Bette Midlers successful records. He
also testified at trial.
[18]
Unfortunately, in December 2005, the plaintiff was diagnosed with an aggressive
form of breast cancer. She had surgery in February 2006 which involved removal
of her left breast, and began chemotherapy in April 2006. The chemotherapy was
difficult and it resulted in the plaintiff being very ill, vomiting several
times a day for the first week after the treatment, then having two good weeks,
and repeating that cycle throughout her chemotherapy treatments.
[19]
In June 2006 she appeared on stage with Russell Marsland at the
Vancouver Jazz Festival and sang I Cant Stop Loving You. She wore a wig for
these and other performances. During this period in 2006 and in 2007 the
plaintiff recorded songs with Miles Black under the contract that she had
entered with Mr. Gigliotti. The plaintiffs chemotherapy continued until
early 2007.
[20]
On February 9, 2007, the plaintiff experienced a serious accident when, while
driving, she blacked out in an intersection. This blackout was apparently the
result of a reaction to an experimental drug she was taking as part of her
cancer treatment. The plaintiff fractured her right ankle and broke her ribs. She
also suffered an injury to her neck and, following the accident, suffered from headaches.
[21]
Following the 2007 accident, she performed the next week at the Lions
Den, and during this time was hired to sing with Bobby Bruces show.
[22]
The plaintiff eventually stopped chemotherapy due to her reaction to the
drugs, and although additional radiation treatments were recommended, she said
she declined this treatment because of the risk she would likely lose her voice.
[23]
In 2007-2008 her relationship with her patron, Mr. Gigliotti, deteriorated
and she terminated that relationship in February 2008. Following that, the
plaintiff began to use the stage name Raven Blackwell, but for convenience in
these reasons, I will continue to refer to her as Ms. Giczi or simply as
the plaintiff.
[24]
In the period from December 2007 to January 2008, the plaintiff was
complaining of some neck and upper back pain, facial pain, temporomandibular
joint pain (TMJ pain), and migraines and dizziness. In the spring of 2008, she
saw two dentists, Dr. Adelbaum and Dr. Andreou for jaw and neck
complaints. During this time, and on referral from Dr. Adelbaum, she saw
Grant Gibson, a physiotherapist, to address these difficulties. She last saw Mr. Gibson
on January 18, 2008.
[25]
In April 2008 the plaintiff signed a contract with Abacus Group, a
neophyte American music company. The principal of that company was Fred
Buttram.
[26]
In June 2008 the plaintiff attended Dr. Keyes, a neurologist, for a
neurological examination which was required following her 2007 accident. Dr. Keyes
testified at trial as to his observations of the plaintiff when he examined her,
but not to give opinion evidence. I will discuss this later as it is relevant
to the plaintiffs pre-accident condition. Dr. Keyes found that Ms. Giczi
had greater flexibility than when she was seen by Mr. Gibson five months
earlier in January, 2008.
[27]
The accident that is the subject of this litigation occurred on August 14,
2008. The plaintiff was a passenger in a car driven by her mother, which was
rear-ended in a three-car collision. The plaintiff described that she heard a
bang, turned around, and then was thrown forward in the collision. She hit her
left arm on the dashboard and described a jarring pain in her left shoulder. She
complained she felt pain at the time bilaterally in her neck and upper back,
and following the accident developed a severe headache.
[28]
In the eight months prior to the 2008 accident, the plaintiff did some
work in various capacities, and I will discuss that further throughout these
reasons. An important focus in argument was the period from August 2005, from when
she first performed the Bette Midler show, to August 2008, the date of the
subject motor vehicle collision. The plaintiff says that during this period her
career as a Bette Midler tribute singer was about to take off, but that it
stalled for several reasons: initially because of her cancer; her commitment to
the Gigliotti/Black project; and, for a time, the sequelae of the 2007 car
accident. The defendant, however, says that if there was a real and
substantial possibility before the subject accident of the plaintiff having
success, there would have been evidence of tangible efforts to book her as a
tribute performer. I will examine these things when I discuss the loss of past
and future earning capacity claim.
[29]
Following the 2008 accident, the plaintiff attended a walk-in clinic the
next day, and on August 18, 2008 saw her family doctor, Dr. Condon. The
plaintiff had a bruise under her left breast and Dr. Condon noticed a
deformity in that area. Dr. Peter Lennox, a surgeon, noted that the seat
belt had compressed the reconstructed left breast, displacing the implant.
[30]
During the section on non-pecuniary damages, I will deal more
specifically with her symptoms, how they were reported by her, and how they
progressed.
[31]
Following the 2008 accident, the plaintiff sang at the Yale for a
benefit concert as well as on other occasions, and it is in issue the extent to
which her singing was affected during that time.
[32]
According to the plaintiff, the November 2009 sessions with Miles Black
to re-record material were not successful. That was the last time the
plaintiff attempted session singing.
[33]
In 2009, the plaintiff worked with her cousin in a natural cosmetics
company called Arbonne International. She asserts that she could not continue
because she was in too much pain and could not carry the goods to show prospective
customers. After five months she gave up this line of work.
[34]
In September 2009, a year after the collision, Ms. Giczi underwent reconstructive
surgery for her breast that was damaged in the accident.
[35]
The plaintiff testified that over time her pain has changed and
transformed into severe pain. She said the pain was in her head and went down
her body, down past her chest into her ribs, upper back, and shoulder blades.
She described her ribs popping all the time and that she could not breathe
deeply.
[36]
The plaintiff was referred by her family doctor to Dr. OConnor, a
physiatrist, for a medical examination in 2010. Her physiotherapist, where she
had attended about 70 times, referred her to Dr. Venter regarding
management of possible chronic pain, and in February 2011 she had a dynamic MRI.
[37]
The plaintiff testified that she had neck spasms that became worse and more
frequent over time. She said that her neck always felt tight, a feeling that travelled
into her upper chest. She described her left arm going numb with constricted
blood flow in that arm. She testified to experiencing bad headaches, including
a severe headache once or twice per week. She said that this is an improvement
from November 2009, when they were constant. She described constant pain from
her head down to her stomach as something that hurt so bad she did not want to
get out of bed, and described the pain as burning as if its on fire. She testified
to getting spasms in her neck that made her feel like she was choking. The
plaintiffs counsel asserts that over time her injuries to her neck and jaw,
thoracic outlet syndrome, and disabling headaches have increased and become
what the medical evidence describes as chronic pain.
[38]
The plaintiff testified that since 2009, she has been unable to sing with
Marsland & Giczi, perform session singing, or perform the Bette Midler show.
[39]
On March 21, 2012, the plaintiff was seen by Dr. Morrison, an ear,
nose and throat doctor specializing in voice disorders. He has written widely
on muscle misuse voice disorders. Dr. Morrison referred the plaintiff to
Shelagh Davies, a speech pathologist specializing in singing issues, and she
recommended some home exercises which the plaintiff said caused spasms in her
neck and made her jaw tighten up.
[40]
At trial, the plaintiff described her current condition this way: she
feels as though her neck is unstable, like her head is going to fall off. She said
she has no mobility in turning her head, as if it is a solid block. She said her
neck swells up painfully. She said her chest and shoulder area have gotten
worse, that her bra line is incredibly painful, and she gets big spasms in her
chest. She said that her shoulder and hands are so painful that some days she
would like to chop her arm off. She described a sensation on her skin like a
burning feeling. She also described that she is no longer intimate with her
partner with whom she previously had a healthy sexual relationship.
IV.
NON-PECUNIARY DAMAGES
A.
Positions of the Parties
1.
Plaintiffs Position
[41]
Mr. Cameron, counsel for the plaintiff, says that the plaintiff has
ongoing injuries to her neck, thoracic outlet syndrome, TMJ disorder, as well
persistent and disabling headaches. He asserts that the collision dislodged
her previously reconstructed breast, requiring surgery to fix the breast, and that
the resultant pain combined with her other injuries has morphed into what some
experts described as neuropathic changes and chronic widespread pain. He says
it is unchallenged that her injuries have, over time, become chronic pain. He
asserts that the effects on the plaintiff have been devastating, affecting
every area of her life including her vocation, avocation, recreation and relationships.
Most importantly, he asserts that the plaintiff has lost her ability to do
what she loves most to sing and perform. He asserts that her non-pecuniary
damages should be assessed in light of two key factors: chronic pain and loss
of a lifetime-defining passion, singing. He says that a key aspect in
analyzing her claim is her loss of function.
[42]
The plaintiff submits that an appropriate award is $225,000.
2.
Defendants Position
[43]
The defendant put its submission as to the appropriate damage award this
way:
[I]n light of the plaintiffs
age, on-going and pre-existing complaints, injuries (functional thoracic outlet
syndrome, moderate soft tissue injuries, and damage to her breast), concomitant
emotional suffering, and impairment of work and lifestyle, and the prognosis
(with further treatment she will improve), an appropriate award of
non-pecuniary damages is $70,000.
[44]
Mr. Murphy, counsel for the defendant, acknowledges that a
pre-existing migraine headache condition was exacerbated, and he does not
dispute the evidence that the plaintiff suffers from chronic neck pain. However
he asserts that the pain is not as debilitating as the plaintiff asserts. He
submits that with therapy there is a good chance she will recover.
[45]
The defendant also argues the damages should be reduced because the
plaintiff has failed to mitigate and that her ability to sing and perform as
she alleges should be considered more a loss of an amenity than as a separate
item.
B.
Medical and Lay Evidence Concerning Non-pecuniary Damages
[46]
The plaintiff called a number of doctors: Dr. Caroline Condon, her
general practitioner; Dr. Murray Morrison, an ear, nose and throat
specialist; Dr. Donald Mintz, who has a similar speciality; two
physiatrists, Dr. Russell OConnor and Dr. Malgorzata Sudol;
and two specialists in chronic pain, Dr. John Armstrong and Dr. Jan Venter.
Dr. Pamela Davidson, a dentist, testified, as did Shelagh Davies, a voice
therapist. Niall Trainor gave evidence as a vocational expert about her
competitive employability. The key witnesses were those who discussed the
plaintiffs complaints of chronic pain and voice difficulties.
[47]
The medical evidence in this case was led essentially by the plaintiff.
The defendants counsel, in cross-examination, outlined information that the
experts had received that may not have been completely or accurately provided by
the plaintiff to the doctors, and that in Mr. Murphys submission should
affect the weight to be given to their opinions. The defendant called a
chiropractor and a physiotherapist who had seen the plaintiff in 2007-2008.
[48]
In a later part of this judgment dealing with earning capacity I will
discuss in more detail the voice issues, as they are relevant not only to the
assessment of general damages, but to the loss of earning capacity as well. In
this part, I will also examine the question of the plaintiffs credibility and
reliability generally.
[49]
I briefly described the 2008 motor vehicle accident above. Returning to
that description, when the plaintiff heard a loud bang she put her arm on the armrest.
It was then that the other vehicle hit them. She said that her neck hurt right
away, towards the left and back. She said her existing
headaches got worse, and she went to a drop-in clinic where she
complained of a tender shoulder and tenderness around the breast area (where it
was later discovered her implant had been damaged), as well as soreness in her
chest and jaw.
[50]
Dr. Condon is the plaintiffs general practitioner who has treated
her since December 1987. She saw her four days after the accident, on August
18, 2008. She commented on the plaintiffs restricted range of motion
specifically, lateral flexion to the left of her neck, and tenderness in her
lower cervical and lower lumbar spine. On September 3, 2008 Dr. Condon
noticed a bruise from the seatbelt under the plaintiffs left breast. She
commented on the plaintiffs headaches and marked tightness in her upper back.
She observed that the plaintiff had been pain free from the 2007 accident for three
months prior to the 2008 collision.
[51]
In October 2008, the plaintiff performed the Bette Midler show for an
investor, Mr. Ratsoy, who loaned her $35,000 to develop the show. Mr. Black
then rewrote the charts for the musicians in the Bette Midler show at a cost of
about $8,000 to $10,000.
[52]
In November 2008, the plaintiff saw Dr. Peter Lennox about the tear
where she had had the breast implant and for which she was awaiting repair. By
November 2008, the plaintiff complained of numbness in her left arm, pain which
awoke her at night and difficulty sleeping. She had pain in her
temporomandibular joints and pain when singing and chewing. She described her
neck and jaw as getting tighter. When she had previously sung as Bette Midler,
she had performed physically, whipping her head around as she sang; but she said
that after the 2008 accident, doing so caused neck and jaw pain.
[53]
The plaintiff said that by December 2008, she was suffering from a
reduced singing range and was referred to Dr. Mintz, an ear, nose, and
throat specialist for treatment, from whom she received medication for reflux.
She did a Bette Midler show on December 12, but complained that she experienced
such pain when she went down to sing a song that she could not get back up.
She described the pain in her face and neck as being like ice picks. She said she
vomited throughout the day, unable to keep down even water. She said that she
had a lot of pain in her neck, jaw, upper body and her implant area, and she
said she was only able to perform in December 2008 by taking Advil with five or
six beers.
[54]
By February 2009, she exhibited symptoms suggestive to Dr. Condon
of thoracic outlet syndrome, including a loss of feeling and pulse when lifting
her left arm. The plaintiff complained to Dr. Condon of feeling
overwhelmed, and said that she was in pain most of the time with frequent
headaches. She was seen by Dr. Keyes, a neurologist, for complaints of
bilateral upper extremity numbness and tingling as well as ongoing neck pain
and headaches.
[55]
In March 2009, she performed a show with the Marsland Giczi band at the
Starlight Casino. She described the show as okay at the start, but her neck
pain kicked in and her neck got tighter and tighter.
[56]
In March 2009, the plaintiff started physiotherapy. Dr. Condon
reported that the plaintiff was attending physiotherapy twice a week in March
2009; that she wore a mouth guard and avoided hard food; but that through
August 2009 she complained of persistent pain in her upper back and shoulder
blade region. The plaintiff was not allowed to take anti-inflammatory
medication at this time, as reconstructive surgery for her left breast was
planned. She complained of muscle spasms in her upper back, particularly on
the left side, as well as a migraine headache with vomiting following an
episode where her neck clicked while hanging a curtain. The plaintiff
requested a referral to Dr. OConnor, a physical medicine and
rehabilitation specialist.
[57]
The plaintiff said that about a year after the accident she started to
get neck spasms, the location of which she tried to demonstrate by way of a
photograph of her neck that was filed as an exhibit. She described the spasms
as an electrical thing that grabs. She said that by March 2009 she could not
hit the low notes and that she last performed in August 2009 an event which I
will refer to later. During that time, she was waiting for surgery to repair
her breast implant and could not plan anything for Abacus or for the Bette Midler
show. She said she tried to work with Arbonne, a home based cosmetics company,
but she said that she had to give it up after five to six months because she
could not perform the physical work involved.
[58]
In September 2009 she had reconstruction surgery on her breast. The
plaintiff testified that her breast pain improved after the surgery, and the
pain has now gone away.
[59]
The plaintiff said that by November 2009, she could not perform the
Bette Midler show, vocally or physically. She described the pain that she
suffered at that time as being severe, going down into her chest, to her ribs
and upper back.
[60]
From 2009 to the present, the plaintiff described neck spasms as getting
more and more severe and that there has always been a tight feeling in her
chest. She described the headaches as different, that their frequency is once
or twice a week, and that they are constant.
[61]
In her evidence, the plaintiff described the progression of the pain in
her neck and the spasms that she has had, the difficulties with her voice, the
tightness in her neck and jaw, and that by November 2009 she could not handle
the physical demands of the Bette Midler show. She described her neck spasms
past 2009 as getting more and more severe, that the headaches were really bad once
or twice a week, but that they were constant and there was little improvement.
She said that she did not want to be melodramatic but she could not sleep and
felt like her neck and back were on fire. She described the spasms in her
throat as if she was choking.
[62]
Mr. Marsland, the plaintiffs common-law husband, described his
observations of how after the 2008 accident the plaintiff has been different.
He said that she has had headaches and neck pain. He described her problems as
pain in her shoulder and neck, and the sensation that she was choking. He
described an occasion in 2009 when she sang at the Yale, where her voice was
out of tune and her three songs were horrible. He said she could not paint
because of her shoulder and neck pain. The physical intimacy between them
disappeared. He said that he was aware that she went to see Dr. Khan, the
chiropractor, in late 2007, but that prior to the 2008 accident, he believed she
was feeling much better. He agreed that she had some migraines and vomiting
before the 2008 accident and that she complained of pain in her face and jaw to
a minor level. He said that he was not aware of her experiencing neck pain
following the 2007 accident, only of pain in her ankle and ribs.
[63]
Dr. Condon acknowledged that the plaintiff has had migraines and nausea
most of her life, both before and after the 2008 accident. She confirmed that
the plaintiff suffered stress from her breast cancer treatment.
[64]
The plaintiff was seen by Dr. OConnor on May 3, 2010 and on September
27, 2011. Dr. OConnor was of the opinion that the plaintiffs left arm
symptoms were related to a stretch-type injury which occurred to the cervical
and brachial plexus, with her arm being fixed on the dashboard looking out the
window with a preferential stretch to the left brachial plexus. That, in his
opinion, is what has caused the muscle spasm in the neck and down into the arm
and hand with accompanying paresthesias or numbness and tingling. He thought
this was because of scarring or tethering down the brachial plexus and a mild stretch-type
injury which did not cause any significant neurological damage. He deferred to
her ear, nose and throat specialist regarding her TMJ and jaw pain, and thought
that the hoarseness and pressure sensation in the back of her throat related to
a stretch-type injury to the cervical and brachial plexus that affected the
muscles around her throat, for which she was seeing Dr. Morrison. He
further thought that her headaches were triggered by jaw pain and upper neck
pain, and that they were exacerbated by the 2008 accident. He noted that she
had not seen a chiropractor for six to eight months leading up to the 2008
accident. He observed that her difficulties with chronic pain made it
difficult for her to cope.
[65]
Dr. OConnor opined about her disability:
She is completely unable to
return to her job as a singer at her previous capacity. The main reason for
this is the chronic pain in the neck, shoulder, arm, hand, jaw pain and change
to her voice. When she has nausea, vomiting, and headaches, she is completely
incapacitated and unable to perform any occupation. In between these bouts,
when she has a good day and her pain is down to 2-3/10, she still gets a
hoarseness to her voice when she is trying to talk that prevents her from
singing in the way that she had in the past. Although this does not sound like
a major impairment, muscle spasm of the muscles around the voice box and the
top of the esophagus has made it impossible for her to work to the same degree,
and her employment is based on her ability to sing. This is a major problem
for her.
[66]
With respect to the plaintiffs prognosis, Dr. OConnor said:
Although there has been a
significant time since the accident, there is still room for further improvement
and she has not reached maximum medical improvement. The longer her symptoms
go on, the less likely she is to have her symptoms resolve. It is not clear to
me whether she is going to be able to get back to singing given the degree of
problems that she has.
[67]
Dr. OConnor recommended the plaintiff see a doctor who specializes
in treating singers and performers, and went on to say:
I would recommend that, if
working on the strength and conditioning program causes her increased neck pain
or increased headaches, a trial of upper cervical chiropractic treatments that
she has had in the past may provide some temporary benefit to allow her to
progress with her strength and conditioning.
[68]
Dr. OConnor noted that she then still had to see Dr. Morrison
but that he would recommend a singing coach or speech therapist to work on
relaxation of the swallowing and speech muscles. If the strengthening and
conditioning program did not assist, he recommended a trial of trigger point
injections. He observed that the degree of muscle spasm in her neck would make
strengthening and conditioning her core muscles an uphill battle, but in his
opinion it was important that she do so.
[69]
On cross-examination, Dr. OConnor said he understood from the
plaintiff that she had neck pain before the accident which had settled but not
resolved, and also headaches with vomiting that were episodic and formed part
of the reason she was seen by Dr. Keyes in June 2008. Although he was of
the view that the plaintiffs inability to sing was related to the impairment
of her capacity to generate voice, Dr. OConnor agreed severe migraine
attacks would also diminish her ability to sing. When he saw the plaintiff in May
2010, he gave her a list of exercises. He appears to have given those
recommendations because he was concerned about strengthening her neck and
shoulders. The exercises included a series of neck and shoulder strengthening
exercises, including shrugs, push-ups, planks and other flexion and extension
exercises. When she returned to see him on the second occasion, he was of the
impression that she was not doing the exercises as directed.
[70]
The plaintiff said that she attempted the exercises, but they hurt, and
after going to physiotherapy 60-80 times she discontinued her attempts at
physiotherapy it appears by the middle of 2011. When asked on
cross-examination why she did not do the exercises that were recommended by Dr. OConnor,
the plaintiff explained that the pain she experienced in attempting those exercises
was different from the exercising she had done in the past, and that the pain
in her head and neck was so severe that it was difficult to do the exercises.
She said that when she attempted the push-ups, they bothered her implant.
[71]
She was referred to Dr. Longbridge for dizziness but apparently did
not attend that specialist.
[72]
The plaintiff was seen in October 2010 by Dr. Courtemarche for her temporomandibular
joints, and she also attended a number of physiotherapy appointments in 2010.
In December 2010, she was seen by Dr. Jan Venter, an expert in diagnosing
and treating chronic pain. He ordered an MRI of her thoracic spine.
[73]
By June 2011, the plaintiff reported that she had discontinued
physiotherapy, had a restricted range of motion in her neck, marked muscle
spasm and ongoing headaches with difficulty singing, and a feeling of pressure
in her voice box.
[74]
In July 2011, the plaintiff was seen by Dr. Sudol, who is also a
physiatrist. She saw the plaintiff on referral from the plaintiffs family
doctor when Dr. OConnor was away from B.C. for a period of time.
[75]
Dr. Sudol saw the plaintiff on July 8, 2011 and said that due
to the plaintiffs symptoms, specifically in regard to her neck pain, muscular
tension, and left arm symptoms, she was limited in her daily activities around
the home, such as laundry, vacuuming and cleaning floors. She summarized:
In my opinion, she has moderate
disability in her household activities due to her ongoing symptoms.
[76]
Dr. Sudol was aware of the plaintiffs history of breast cancer,
reconstruction surgery, headaches, the fractured wrist and ankle in the 2007
accident, her history of frequent headaches and neck pain, her visits to a
chiropractor Dr. Khan on a fairly frequent basis between 2004 and 2007,
and her examination by Dr. Keyes, a neurologist, shortly before the 2008
accident, the results of which Dr. Sudol thought were within normal
limits.
[77]
In Dr. Sudols opinion, in the 2008 accident the plaintiff suffered
musculoligamentous injury to her cervical spine and left shoulder girdle
associated with left functional thoracic outlet syndrome, with a poor prognosis
as she was seen four and a half years after the accident and she was still
symptomatic with significant muscle tension and spasm through the neck and left
shoulder girdle. She thought that the plaintiff was very restricted by the
tension and pain in her neck, but deferred to experts in that field for a
prognosis. Dr. Sudol felt the change in the quality and intensity of the
headaches described by the plaintiff made them more likely to be caused by the
2008 accident. She opined that the left breast injury, which required further
reconstruction, was caused by the 2008 accident.
[78]
Dr. Sudol opined
In regards to her vocation, she
has not returned to work since March 2009. She continues to have significant
neck pain and muscular spasms, jaw pain and headaches. It has been documented
that her voice range has decreased and singing triggers muscular tension
through the neck and jaw. As a result, she has been unable to return to her
vocation as a singer/recording artist. In my opinion, the injuries she has
suffered have severely impacted her employment. It has now been over four
years and Ms. Blackwell has not returned to her vocation as a singer. At
this point, it is more likely than not that she will be unable to return to
being a professional singer.
[79]
In Dr. Sudols opinion, the plaintiff will continue to have flare-ups
of neck pain, muscular tension and jaw pain, and headaches.
[80]
Dr. Sudol agreed on cross-examination that the substantive
information she relied upon, particularly about the plaintiffs current
symptoms, was from the plaintiffs self-reporting. However, she said she got
the dates from the numerous reports she received. She further noted the
plaintiff did not specifically report an injury to her neck and shoulder or a
sore chest following the 2007 accident. She had Dr. Khans records of the
plaintiffs treatment between 2004 and 2008 and was aware that she had seen him
between 2004 and 2007. Dr. Sudol was cross-examined extensively on those
records. She was aware that the plaintiff has suffered migraines in her life
and that in 2007 there was an increase in symptoms of migraines and vomiting. However,
she thought the plaintiff was still engaged in many of her normal daily
activities prior to the subject accident. Like Dr. OConnor, I found Dr. Sudol
to be a very good witness.
[81]
The most important expert witness at trial on the issue of the
plaintiffs current singing difficulties was Dr. Murray Morrison. He is
an ear, nose and throat specialist and is a leading expert dealing with the diagnosis
and treatment of disorders of the throat and neck as they relate to voice. Dr. Morrison
identified a great deal of muscle spasm in her neck.
[82]
Ms. Shelagh Davies, a voice speech pathologist who saw the
plaintiff on Dr. Morrisons referral, described the plaintiffs singing
voice this way:
When Ms. Blackwell vocalized 5 semitones up and down
through her range her voice was severely breathy and there was observable
tightness throughout her upper body and neck. There were no palpable mid-body
breathing movements during singing and there was observable shoulder rise with
inhalation. This breathing pattern is frequently seen in singers with poor
breath-voice coordination. She had difficulty sustaining voicing through the 7
note phrase. This is in keeping with the restriction in her maximum phonation
time. Often professional singers are at the upper end of that range but Ms. Blackwell’s
ability to sustain a voiced sound was below normal.
Although her physiological pitch range measured within normal
limits it was restricted for a professional singer. She should be vocalizing
easily up to 1000 Hz. (C6) or higher but she could only reach 800 Hz. (G#5).
All singing appeared effortful
and she noted her throat felt squeezed when she sang. The effort triggered a
cough sensation. As Ms. Blackwell vocalized higher the effort increased
and her voice sounded progressively more squeezed and quiet. When singing in
her lower chest register, she felt strain throughout her jaw and tongue base
area. The chest register is used extensively in contemporary commercial
singing. It was noted that there was minimal jaw release for the high notes
and very little jaw movement during singing. Releasing the jaw for higher
notes is essential for both for ease of the production and for a full, ringing
quality.
[83]
The singing difficulties which the plaintiff had, which are noted in the
records of Ms. Davies, appear therefore to be not a problem with her vocal
chords, but difficulty with muscle spasms. Dr. Morrison noted that acid
reflux, although linked to vocal cord spasms, was not linked to neck muscle
spasms. In Dr. Morrisons assessment, the plaintiffs vocal cords
appeared normal, and in his report he described her symptoms this way:
These symptoms all seem to have
come on following the motor vehicle accident of August 14, 2008 and I believe
that they are consistent with a muscle torsion and tightness injury from that
cause. I suspect this problem may persist for some period of time, but with
therapy she should be able to get back singing again. There is no structural
abnormality in the vocal cords that would make it impractical as long as a
muscle spasm can be alleviated.
[84]
On direct and cross-examination, Dr. Morrison spoke of the
importance of resolving the muscle spasms for any improvement to the plaintiffs
condition. He noted that if the muscle spasms in the neck ceased, and the
plaintiff was free and comfortable with no pain in her neck, she should be able
to continue singing. He spoke of improvement, as long as the muscle spasm
could get relieved and that is a much more complex problem. He noted that muscle
spasm was not an area that he was treating, and the plaintiff was seeing a
physiatrist and others to treat that issue.
[85]
Dr. Mintz, also an ear, nose and throat specialist, saw the
plaintiff on December 9, 2008. He treated her for gastro-esophageal
reflux and for ulcers of her vocal cords (her reflux condition preceded the
accident of 2008). The vocal cord ulcers he saw appeared to have healed when
he followed up with the plaintiff in April 2009. He had seen her previously for
voice strain in 2005. In August 2011, he referred her to Dr. Morrison.
Dr. Mintz indicated that at that time, there was no physical problem
apparent with her vocal cords, but that he could not see if there was a problem
with her coordination of fine muscle movement. In his conclusion, which was
based on his examinations and the reports he received, he agreed with Dr. Morrison
that the plaintiffs symptoms seemed to be directly related to extensive muscle
spasm around the neck, and that her voice issues were all muscle tension
related.
[86]
Dr. Armstrong and Dr. Venter were called to give opinion
evidence as chronic pain specialists.
[87]
Dr. Armstrong, who saw the plaintiff on one occasion, was of the
opinion that, but for the accident, Ms. Giczi would likely not have
experienced the chronic axial myofascial disorder he described, nor would she
have developed chronic pain including chronic neuropathic pain and its
complications. He went on to say:
For the foreseeable future, it is certain (100% chance) Ms. Giczi
will continue to experience ongoing sleep disorder and fatigue, secondary to
her chronic pain and diminished physical capacity, both of which persist
because of an unresolved chronic myofascial disorder and a chronic neuropathic
pain disorder all of which are likely inter-related and sub-optimally treated
so far. Little or no improvement is to be expected in the foreseeable future
absent better pain control, enhanced application of her coping skills, and
additional and successful physical rehabilitation to improve her chronic
myofascial disorder.
Generally speaking, the longer a chronic myofascial
disorder persists, the less favorable is the chance for significant improvement
with additional rehabilitation. The onset of chronic neuropathic pain dims the
prognosis even more.
In her case, the prognosis is
very guarded indeed in respect to achieving diminished pain and full recovery
of pre-MVA physical, emotional, cognitive, recreational, domiciliary,
occupational, and social function.
[88]
Dr. Armstrong acknowledged that some people with chronic pain are
able to go to work. Dr. Armstrong appears to have been aware of her prior
problems with headaches and vomiting, as well as her longstanding TMJ difficulties.
He expressed the importance of the plaintiff stretching and exercising neck
muscles, but in his report he noted the difficulty of reversing chronic pain.
[89]
Dr. Venter specializes in diagnosing and treating complex and
chronic pain disorders. He saw her on referral for neck and shoulder pain. He
diagnosed the plaintiff with myofascial pain syndrome of the neck, jaw and
shoulder. He also diagnosed her as suffering from chronic neuropathic
wide-spread pain most likely due to positional cervical cord compression at
level C6-C7, as evidenced by narrowing of the cervical canal to less than 10mm
on an extension view of the dynamic MRI study that he had done on February 14,
2011. He said that chronic pain was unlikely to have been an issue for the
plaintiff before the collision, as she had undergone a complete work up by a
neurologist, Dr. Keyes, in June 2008, prior to the accident. The
plaintiff did not give Dr. Venter her complete history of back and neck
pain or describe her pre-accident TMJ, and he agreed that this is necessary for
a proper opinion on causation.
[90]
Dr. Davidson, a dentist, saw the plaintiff on April 6, 2009.
Her examination of the plaintiffs head and neck revealed mandibular deflexion
to the left on opening, sore tender palpation of the right TMJ, tenderness in
the right masseter and sternocleidomastoid muscle, and tenderness in the right
ear. Dr. Davidson noted on cross-examination that the plaintiff had seen
a dentist prior to the accident, who had recommended that she wear a night
guard to prevent clenching and grinding. Dr. Davidson noted that the
plaintiff attended the dentist on August 10, 2008, and that the erosion of her
teeth was much worse than it was then.
[91]
In early January 2013, the plaintiff was seen by Niall Trainor, a
vocational rehabilitation consultant. He did not of course provide a medical opinion
but took, as assumptions, that the plaintiff was suffering from chronic pain in
the form of recurrent headaches and pain in her neck, jaw, shoulders, and chest,
and that she was suffering from dizziness, symptoms of numbness and weakness in
her left arm, and changes to her voice, including hoarseness. He opined that
the plaintiff was not competitively employable at all an opinion I will
discuss later in the earning capacity section.
[92]
The plaintiff concedes that she had pre-accident symptoms. She suffered
a soft tissue injury to her neck and back in a fall in 2003, and experienced migraines
and then had constant discomfort as a result. In 2005, the plaintiff saw Dr. Mintz
for acid or gastric reflux. Further, in 2007, she suffered a broken ankle and
ribs from a car accident, as well as neck, back and shoulder pain.
[93]
That the plaintiff had some pre-accident symptoms is supported by her
medical history. Between November 2004 and December 2007, she visited Dr. Khan,
a chiropractor, for treatment of neck and back pain (she was referred to Dr. Khan
for headaches resulting from an injury that occurred in the 2003 fall). She
reported to him that she had torn ligaments in her neck ten years earlier. In
July 2007, the plaintiff reported to Dr. Khan that she was vomiting almost
daily. She also attended on Grant Gibson, a physiotherapist, from December
2007 to January 2008, complaining of neck and back pain, facial pain, TMJ pain,
migraines and dizziness. She testified that at the time, the pain was constant,
and that she would have continued treatment with Mr. Gibson but for the
cost. The plaintiff was seen by Dr. Khan in September 2008 following the
subject accident. It appears that she had not been to a chiropractor for about
eight months prior to the subject accident. The plaintiff also saw a dentist, Dr. Adelbaum,
for neck and jaw complaints in the spring of 2008.
[94]
It is important in assessing the extent of the plaintiffs pre-existing
condition to consider an examination in June 2008 she had by Dr. Robert Keyes
following the 2007 accident. Dr. Keyes was not aware of many of the
plaintiffs pre-accident conditions. Dr. Keyes reported that she had full
mobility of the cervical spine in all planes, that she did not have cervical
spasms, and that she exhibited no TMJ problems. Mr. Gibson indicated her
condition when she saw Dr. Keyes was significantly different than when he
saw her in December 2007. When she was seen by Dr. Khan after the 2007 accident
she was much less flexible, which indicates she had much more flexibility in
June 2008 than she did shortly after the 2007 accident
[95]
The defendant challenges the reliability of the plaintiffs description
of past events, and suggests a propensity to minimize her pre-accident health
problems. The defendants counsel argues that I should be cautious in
accepting the plaintiffs evidence in the absence of corroborating evidence.
[96]
In assessing the plaintiffs claim for damages, the defendant says that
I should be mindful of the fact that many of the conditions that the plaintiff
described pre-dated the 2008 accident. The defendant acknowledges that, as a
result of the 2008 accident, the plaintiff suffered soft tissue injury to her
neck, jaw, and upper back, a functional thoracic outlet syndrome, damage to her
breast implant that required surgery, as well as exacerbation of a pre-existing
migraine headache condition. However, the defendant disputes the extent and
severity of the plaintiffs injuries.
[97]
Mr. Murphy, while not challenging the plaintiffs subjective belief
in the veracity of her testimony, contended that she was prone to exaggerate
the severity and duration of her injuries. In this regard, he pointed to her
participation in work, domestic, and recreational activities following the
accident, including: shopping; taking public transit; assisting in packing of
belongings to move following the accident; performing with the Marsland &
Giczi band in September 2008, at a party on September 7; practicing
for the Bette Midler show in the latter months of 2008; performing to the
satisfaction of Mr. Ratsoy in order to obtain a loan in October 2008; playing
with the Marsland & Giczi band at the Grand Villa Casino in November, 2008;
and performing two Bette Midler tribute shows on December 12, 2008 at the
Starlight Casino.
[98]
Mr. Murphy also pointed to other evidence of the plaintiffs
activities following the accident, such as: a performance of the Marsland &
Giczi band in March 2009 at the Starlight Casino; a performance of two
songs from the Bette Midler show in May 2009 at a wedding; a performance at the
Yale pub in August 2009, which was captured on video; setting up launch parties
for her cosmetics enterprise; walking; and using the elliptical trainer.
[99]
I turn to the question of the plaintiffs credibility.
[100] Upon a
consideration of all of the evidence, I found the plaintiff generally to be a
credible and truthful witness. While there were occasional problems with her
recollection of her condition at various times, I nevertheless found her to be
truthful. For example, the plaintiff was asked on cross-examination whether
she suffered injuries to her neck and back in the 2007 accident, and she said
she had. When confronted with her earlier evidence on discovery that she had
not hurt her neck and back, she explained she answered that way because her
ribs and foot which she broke were her most prominent injuries.
[101] I find
that there was corroboration in the medical evidence for the physical and voice
problems described by the plaintiff. However, I find that to some extent perhaps
unconsciously she placed blame for her symptoms on the 2008 accident, and
would tend to minimize her pre-accident condition in her report to her doctors
or at trial. Similarly, the plaintiff was reluctant to accept her tax returns
as accurate evidence of her real income before the accident, and she indirectly
expressed her disagreement with their accuracy by suggesting either that the
completion of tax returns was a matter for the accountant, or that she must
have earned more because she needed a certain level of income to live on. I
also find that the plaintiff did not always accurately report her pre-existing
conditions of neck pain, migraines and jaw pain. Nevertheless, the defendants
counsel did not suggest that the plaintiff was intentionally misleading the court,
and although I found her generally to be credible, I have proceeded cautiously
in assessing her pre-accident condition, post-accident condition, and her actual
pre-accident earnings. I appreciate that where expert witnesses have
incomplete descriptions of the plaintiffs prior condition, this affects the
weight to be given to the experts report on issues of causation and injury.
[102] I have
reached the following conclusions about the plaintiff`s injuries.
[103] The subject
accident caused the plaintiff a significant soft tissue injury to her upper
body primarily involving her left shoulder, neck, left breast and chest and
exacerbated her TMJ. I find that the plaintiff has developed significant
difficulty singing, and that it is caused by the muscle tension problem that
was described by Dr. Morrison. She has persistent neck spasms that have
affected her ability to sing professionally (I will further describe what I
find to be the extent of the plaintiffs singing difficulty when I discuss her past
and future earning claim). The accident dislodged her previously reconstructed
breast and required further surgery. The injuries have altered her ability to
be intimate with her partner and have caused her pain in doing household tasks
and in attempting to do physical work to earn an income.
[104] While the
plaintiff had symptoms in her neck and shoulder before the accident, the
accident exacerbated her prior condition and she has developed a chronic pain
condition, involving what the experts have referred to as neuropathic changes.
[105] The weight
of the medical evidence that I accept supports these findings. Let me
summarize it briefly.
[106] In her
January 7, 2013 report, Dr. Condon described the plaintiffs injuries in
the 2008 accident as musculo-skeletal injuries of her neck, upper back and left
shoulder. She referred to the plaintiff having chronic pain and psychological
sequelae. She referred to the plaintiffs inability to work at her singing
profession for any length of time, her marked muscle spasm, pain and tension in
her neck and jaw, and temporomandibular joint pain. Dr. Condon described
the therapies that she said the plaintiff tried. She also described how the
plaintiff was left with chronic pain and dysfunction, difficulty with the daily
activities of cleaning, and a negative impact on her marital relations.
[107] Dr. OConnor,
the physiatrist, opined that the plaintiffs headaches were exacerbated by the
2008 accident, and that she had a history of migraines, neck pain, vomiting and
nausea. He opined that the plaintiff was left with chronic pain and muscle
spasm around the left neck, shoulder, arm and hand. Dr. Sudols opinion
is consistent with Dr. OConnors.
[108] Dr. Venter
described the plaintiffs condition as myofascial pain of the neck, jaw and
shoulder, and chronic neuropathic widespread pain. Dr. Armstrongs
opinion was consistent with this.
[109] Dr. Morrison
described the plaintiffs singing difficulties as related to muscle torsion and
tension an issue of muscle spasm.
C.
Discussion & Conclusion
[110] It is trite
law that the defendant is only responsible for the damage that he has caused to
the plaintiff, or, in other words, the plaintiff may only recover damages for
the injuries caused or contributed to by the defendant, but not for
pre-existing conditions. The plaintiff is entitled to recover a sum that will
theoretically restore her to her pre-accident condition. It may well be that
the pre-existing condition of the plaintiff made her more susceptible to the
injuries she suffered, but the evidence does not demonstrate that there was a
measureable risk that the chronic pain and voice problem would have manifested
anyhow.
[111] As to the
plaintiffs pre-existing condition, the evidence shows that she suffered a
serious soft tissue injury to her neck in October 2003 when she fell backwards,
striking a concrete floor. She also suffered migraine headaches for which she
received treatment from a chiropractor, Dr. Khan, between 2004 and
December 2007. As I mentioned earlier, in February 2007, she lost consciousness
driving and suffered a broken right ankle and ribs in an accident, as well as
headaches and neck, back, and left shoulder pain. In December 2007 to
January 2008, she was treated by a physiotherapist who specialized in TMJ
disorders. At that time she complained of neck and upper back pain, facial
pain, TMJ pain, teeth pain, tinnitus, migraines, and dizziness. She described
the pain at that time as constant, and that her TMJ problems at the time were interfering
with her singing. In the spring of 2008, she was seeing Dr. Adelbaum and Dr. Andreou
for jaw and neck complaints and Dr. Adelbaum recommended a mouth guard and
ongoing physiotherapy treatment. Mr. Murphy pointed out that part of the pre-accident
treatment she required included further breast surgery known as fat grafting.
[112] This evidence
is not really in dispute. The issue is the extent of any pre-existing
condition. The defendant is not liable for the plaintiffs pre-accident
condition.
[113] The
plaintiff says that the important evidence is that of Dr. Keyes, who saw
the plaintiff in 2008 for two episodes of loss of consciousness. Dr. Keyes
physical examination at that time showed no TMJ tenderness, full mobility of
the neck at all phases, no tenderness of the neck, no neck spasms, no evidence
of joint swelling, and that the thoracic outlet syndrome maneuvers were good.
[114] The
defendant says that this was only a snapshot in time of the plaintiffs
condition, and in making these observations Dr. Keyes was not aware of her
previous complaints about migraines, vomiting, neck pain and the like.
[115] In
response, the plaintiff points to the evidence of Dr. Khan which shows a 95%
restricted mobility of the cervical spine after the accident a very
significant restriction, which was a condition the doctors, i.e. the treating
therapists, had not seen before the August 2008 collision.
[116] In
assessing non-pecuniary damages, it is important to keep in mind that although
many of the conditions of which the plaintiff complains such as neck pain,
TMJ disorder, and headaches (but not chronic pain) pre-existed the motor
vehicle accident, they did not significantly affect the plaintiffs function.
The evidence indicates that prior to the accident in 2008, apart from the time
recovering from the ankle and rib injury (and neck injury) in 2007, the
plaintiff was nevertheless still able to function as a singer and painter.
[117]
I now turn to the applicable law on the assessment of non-pecuniary
damages.
[118]
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to
appeal refd [2006] S.C.C.A. No. 100, Kirkpatrick J.A. described some of the
factors to be considered when assessing general damages, which include:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of
pain;
(d) disability;
(e) emotional suffering;
(f) loss or impairment of
life;
(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).
[119]
In Morlan v. Barrett, 2012 BCCA 66, the Court of Appeal upheld
a trial award for damages for chronic pain. In the process, Frankel J.A. reviewed
some of the relevant trial level authorities. I refer to his discussion at
length because it touches on some of the cases referred to by counsel in
argument. Frankel J.A. said (at paras. 66-71):
In advancing their respective arguments, the parties rely on
a number of awards made by trial judges as comparators; all arise from motor
vehicle accidents. The appellants say the awards they cite demonstrate that
$125,000.00 is well above the range for a person similarly situate to Ms. Morlan.
On the other hand, Ms. Morlan says that the awards that she cites
demonstrate that while $125,000.00 may be a generous award, it is not
inordinately high.
The awards relied on by the appellants are:
(a) Simon
v. Piercey, 2001 BCSC 679: 61-year-old plaintiff suffering from chronic
myofascial pain syndrome; reasonable prospect condition would improve over
time: $40,000.00;
(b) Iliopoulous
v. Abbinante, 2008 BCSC 336: 45-year-old plaintiff suffering from chronic
pain that affected her work, leisure activities, and general enjoyment of life;
poor prospects of improvement: $50,000.00; and
(c) Bjarnson
v. Parks, 2009 BCSC 48: 28-year-old plaintiff sustaining soft tissue injuries;
gradually able to return to her athletic pursuits, at time of trial symptoms
had improved significantly; still susceptible to flare-ups: $35,000.00.
For her part, Ms. Morlan relied on the following awards:
(a) Hoff
v. Joncas (1996), 55 B.C.L.R. (3d) 10 (S.C.), aff’d (1997), 43 B.C.L.R.
(3d) 203 (C.A.): 53-year-old plaintiff suffering from chronic pain, headaches,
and temporomandibular joint disorder; bleak future, would never be pain free:
$100,000.00;
(b) Shapiro
v. Dailey, 2010 BCSC 770: 23-year-old plaintiff suffering from headaches, chronic
pain disorder, myofascial pain, fibromyalgia, depressive symptoms, mood
disorders and associated cognitive disorders; injuries having ongoing affect [sic]
on personal life and ability to work: $110,000.00; and
(c) Eccleston
v. Dresen, 2009 BCSC 332: 43-year-old plaintiff sustaining soft tissue
injury which developed into debilitating chronic pain that was expected to diminish,
but not disappear, over the next five years; $120,000.00 reduced by 10% because
of plaintiff’s predisposition to depression and related somatoform pain
conditions.
Ms. Morlan also relies on Courdin v. Meyers, 2005
BCCA 91, 37 B.C.L.R. (4th) 222. In that case, a 39-year-old plaintiff sustained
minor soft tissue injuries in a motor vehicle accident. A year and a half
later she was diagnosed with myofascial pain syndrome which had crippling
effects on her life. Her prognosis was "very guarded". A jury
awarded non-pecuniary damages of $1 million. Subject to the defendants’ right
to appeal, the parties agreed to reduce that award to $292,823.00 in order to
comply with the then rough upper limit. On appeal, this Court, keeping in mind
that defendants had chosen to have the matter tried by a jury, reduced the
award to $200,000.00.
Returning to the case at bar, it is clear that prior to the
accidents Ms. Morlan was a hard-working, motivated individual who applied
a high level of energy in all aspects of her life. She had a long association
with the labour union movement and derived much satisfaction from her job with
the B.C. Fed, a job she can no longer perform. The accidents robbed her of her
energy and left her unable to do much of what she did before. She now suffers
from chronic pain and relies on medication to help get through each day.
Although $125,000.00 is a
generous award, it cannot, having regard to recent awards in similar cases, be
said to be so excessive as to warrant appellate intervention.
[120] In the
instant case, the subject accident caused the plaintiff injuries, including: soft
tissue injuries to her neck, jaw, and upper back which caused her chronic pain,
functional thoracic outlet syndrome, and damage to her breast implant necessitating
surgery months later. The plaintiffs injuries have resulted in symptoms that
are significantly worse than her pre-accident condition and have affected her
ability to cope and function.
[121] I find the
plaintiff suffers from a chronic pain condition which was caused by the subject
accident. Not only is the condition painful in the neck, arm and jaw, but the
accident dislodged a breast implant requiring further surgery and a painful
period of recovery. The chronic pain condition has also had a negative impact
on the plaintiffs relationship with her partner and the intimacy that the
couple enjoyed.
[122] In
addition, the accident has also caused difficulty in the plaintiffs singing
from muscles spasms as a result of her injury. I find the accidents effect
on the plaintiffs ability to sing has been profound, given the importance of
singing to the plaintiff throughout her life. The expert evidence of Ms. Davies
and Dr. Morrison convinces me that her voice is impaired. I think that
this is a significant factor apart from its effect on her income earning
capacity.
[123] In all the
circumstances, I find that the appropriate award of general damages is $120,000.
V.
PAST AND FUTURE LOSS OF EARNING CAPACITY
A.
Introduction
[124] In this
section of the judgment, I will assess the plaintiffs claim for damages for
loss of past and future earning capacity. I will discuss the plaintiffs work
history, including her pre-accident earning history. I will also discuss in
more detail the effect of her injuries from the subject accident on her ability
to sing, and on her ability to work in various jobs.
B.
General Law on Loss of Past and Future Earning Capacity
[125]
Turning first to the relevant law applicable to assessing claims for
past and future income earning loss, I extract the following relevant principles
from the leading cases of Perren v. Lalari, 2010 BCCA 140 and Rosvold
v. Dunlop, 2001 BCCA 1:
– The
plaintiff is entitled to be put into the position she would have been but for
the accident, so far as money can do it.
– The
plaintiff is to be compensated, not for lost projected future earnings, but for
the loss or impairment of her earning capacity.
– The
plaintiff must always prove that there is a real and substantial possibility of
a future event leading to an income loss.
– The
standard of proof to be applied when evaluating hypothetical events that may
affect an award is simple probability, not the balance of probabilities.
– The
quantification of the loss of earning capacity can be done on an earnings
approach, if easily calculable or on a capital asset approach when the loss is
not easily measurable.
–
The assessment of the loss is to be done on a judgmental basis
taking into consideration all of the relevant factors arising from the
evidence. The task of the court is to assess damages, not calculate them
according to some mathematical formula, and the court must consider the overall
fairness and reasonableness of the award, taking into account all the
evidence.
[126] The
plaintiffs loss in terms of past and future earnings should be considered as a
loss of capacity for both those periods. I think that this is particularly appropriate
here as the plaintiffs alleged past loss does not arise from a conventional
measurable income stream: Ibbitson v. Cooper, 2010 BCSC 1916.
C.
Positions of the Parties on Loss of Past and Future Earning Capacity
1.
Plaintiffs Position
[127] Counsel
for the plaintiff asserts that Ms. Giczi has a substantial claim for loss
of earning capacity, both past and future. He contends that there was a real
and substantial possibility that, but for the accident, she would have begun
performing her BetteRageous show in the United States, with or without the help
of Abacus. The plaintiff also says that she lost other income earning opportunities,
which were real and substantial possibilities taken away by her chronic pain
condition, including: producing music on her own or with Marsland & Giczi, cosmetic
sales (through Arbonne), painting, and gold gilding.
[128] The
plaintiff asserts that there is sufficient evidence for the earnings approach.
Plaintiffs counsel argues that based on the evidence of Kevin Turnbull, the
economist, and using what he suggests is the middle range in the evidence for
earnings of successful tribute singers of $100,000 per annum, the present value
of the loss to the plaintiff for 20 years of this hypothetical income stream would
be $1.535 million.
[129] The
plaintiff says that the lack of activity in many of these ventures between 2005
and 2008 is explained by her cancer diagnosis and the debilitating treatments
in that regard, the 2007 accident, and other projects she was attempting under
her contract with Mr. Gigliotti. The plaintiff argues that the period of eight
months prior to the 2008 accident is key: during this period she was healthy
and ready to pursue these opportunities. The plaintiff says that, in light of
the fact there was a real and substantial possibility she would have earned
significant income from the Bette Midler tribute act but for the accident, the modest
earnings that she enjoyed as a singer prior to the accident are not an
indicator or a proper basis for the assessment of the loss.
[130] The
plaintiffs counsel submits that for the period prior to the trial, she has
proven a loss in the range of $50,000 to $100,000 per annum since the accident,
and suggests an award of $375,000 based on a five year average of $75,000. As
to the future loss of earning capacity, plaintiffs counsel seeks
an award based on a starting point of what he asserts is the middle range for
tribute singers of $100,000 per year. He claims as the loss for the next 20
years, the present value of that amount or $1,535,000. The plaintiffs counsel
says that he recognizes the court must take into account relevant negative and
positive contingencies.
2.
Defendants Position
[131] The defendants
position is dramatically different. The defendant says there is no real and
substantial possibility of a future event leading to an income loss, but if I
find there is, the quantification of that loss should be discounted
significantly for numerous negative contingencies, resulting in only a modest
award for past and future loss of earning capacity. The defendant submits that
appropriate awards are $5,000 for past income loss, and $15,000 to $20,000 for
future loss of earning capacity, both of which Mr. Murphy admits are
arbitrary amounts.
[132] The
defendant points to the plaintiffs earning history in the six to eight years before
the accident as a guide to the nature of her pre-existing earning capacity. He
asserts that, at the age of 42 and after being in the music industry for more
than two decades, it is mere speculation that the plaintiff would have earned
more income from music than she had before the accident. None of her
opportunities with talented musicians had materialized into financial success,
and in the music industry, including the tribute act business, only a handful
of performers succeed. The defendant says that if the Bette Midler tribute act
was going to be successful, it would have taken off in the period between 2005 and
2008, before the date of the accident however, it did not. In any event, the
defendant says any assessment of damages must take into consideration significant
negative contingencies, including what the defendants counsel describes as the
plaintiffs lack of tenacity, the expenses necessary to put on a tribute show,
the difficulty and likelihood of obtaining a work permit in the United States,
the possibility that the plaintiff would have had a relapse of her cancer or
her other pre-existing health conditions, or the possibility that she would
have lost her singing voice anyway, and the possibility that she would recover
from her voice problems.
D.
Has the Plaintiff Demonstrated a Real and Substantial Possibility of a
Future Event Causing Loss?
[133] I have
concluded that but for the accident the plaintiff has demonstrated a real and
substantial possibility to earn significant income as a tribute singer. The
plaintiff has satisfied that threshold issue. I have concluded that the
plaintiffs continuing chronic pain and difficulties with her singing caused by
muscle tension and spasm have resulted in a real and substantial possibility of
a future event that will cause her income loss. Those future events leading to
an income loss are her inability, both by reason of her voice problems and
chronic pain, to perform the Bette Midler show, and as well sing in the
Marsland Giczi Band, perform otherwise as a singer, or earn money from painting
or other physical work.
[134] There was
an objection by the defendant to what Mr. Murphy referred to as
inadmissible expert opinion evidence tendered under the guise of lay opinion
evidence. I will discuss that objection and outline areas of evidence that I
find to be inadmissible and areas of evidence that are admissible.
[135] However, I
note by way of introduction that I do not rely on any of the challenged
evidence for proof of the voice difficulties and chronic pain problems of the
plaintiff. I find her voice difficulties resulting from the subject accident are
established by the evidence of Dr. Morrison, Ms. Davies, and the
plaintiffs own evidence. Dr. Morrisons evidence, which I find
consistent with the medical evidence as a whole, is that there is no problem
with her vocal chords, but the pain and spasm around the head and neck from her
neck injury drives the muscle tension disorder that affects her voice.
[136] The
medical evidence as a whole establishes that the plaintiff suffers chronic
pain. That general conclusion is not seriously challenged by the defendant,
although he contends the plaintiff is not as badly hurt or lacking in function as
she alleges. However, I find that as a result of the 2008 accident, the
plaintiff has developed chronic pain that has affected her ability to sing and has
generally affected her ability to function.
[137] Before
addressing the assessment of damages in this area, I will deal with the
question of lay opinion evidence and the defendants objection that evidence
tendered by the plaintiff may fall outside permitted lay opinion evidence.
1.
Lay Witness Opinion Evidence
[138] At the
commencement of the trial, counsel for the plaintiff indicated he wished to
tender as witnesses a number of knowledgeable individuals from the
entertainment world, who would describe the skill, ability and potential of the
plaintiff, as well as her opportunities in the entertainment field. The
plaintiff asserted that much of this evidence was simply factual observation as
to her charisma, singing skill, stage presence, as well as factual evidence about
job offers or opportunities. However, the plaintiff acknowledged there was an
element of opinion, regarding the plaintiffs chances of achieving certain
levels of financial success.
[139]
The defendant objected to this evidence, and the lay witnesses testified
subject to the objection. Counsel were content to proceed on that basis. The
evidence was somewhat broader than initially suggested. The witnesses
evidence included testimony on the plaintiffs singing ability, her potential
as a tribute singer compared with other singers, a comparison to Bette Midler, the
person she was modelling as a tribute singer, as well as observations on the
quality of her voice, a comparison of her voice to other tribute singers, and
observations on the quality of her voice before and after the accident. The
witnesses to whom this objection applied were:
· Robbie
Buchanan, a very successful music producer and musician, who has produced Bette
Midler recordings and performed with the plaintiff at her initial performance
of the Bette Midler tribute show at the PNE;
· Miles
Black, a musician, songwriter, arranger and producer who worked with the
plaintiff and in 2006 started to record music with her under her contract with Mr. Gigliotti.
He worked with the plaintiff in the recording studio following her accident in
2007 and following her accident in 2008;
· Bobby
Bruce, a British Columbian who over the last 20 years became well known internationally
as a Neil Diamond tribute performer. He introduced the plaintiff to the
concept of doing a Bette Midler tribute, was familiar with the plaintiffs
singing, her tribute act as a Bette Midler performer, and other tribute singers;
· Leanna
Deborah Bruce, Bobby Bruces wife. She has been her husbands manager for over
15 years and from her daily work has familiarity with the income earned by some
tribute singers. She also has personal knowledge of the plaintiff as a singer;
· Sue
Leonard, a singer for all her adult life, has performed as a solo artist and as
a back-up singer. She was familiar with the plaintiffs work as a singer in
the 90s and was involved in the formation of Abacus, the company that in 2008
signed the plaintiff and had plans to bring the BetteRageous show to locations
such as Reno and Las Vegas;
· Edie
Perala, an entertainment booking agent and the booking agent for Nearly Neil,
who testified about the number of his shows, his income, the income of tribute
bands and the marketability of the plaintiffs Bette Midler tribute show. She
booked the plaintiffs Bette Midler show for the casino in 2005;
· Jodi
Lee Smith, a contractor who coordinates festivals, including booking acts for the
PNE (she had booked the plaintiff as a singer in 1998). She testified to the
popularity of tribute acts and her observations of the plaintiff when she
appeared as Bette Midler to do two songs with Nearly Neil;
· Catherine
St. Germain, a former booking agent for the plaintiff, who worked as a sub-contractor
for Great Canadian Casino where she booked the Marsland & Giczi Band in
2007. She testified to the plans for BetteRageous in and beyond Vancouver,
although she had not actually booked that show; and
·
Paul Airey, a successful producer and composer who worked with
Michael Bublé early in
the singers career. He described the plaintiffs professionalism, her energy,
the uniqueness of her voice and her quality as a singer before the accident.
He described her strong connection with the audience whenever she sang and his
view that her performance as Bette Midler was fantastic.
a)
Plaintiffs Position
[140]
The plaintiffs position is that the impugned evidence is all within the
lay opinion exception articulated in R. v. Graat, [1982] 2 S.C.R. 819. Mr. Cameron
argues that the lay opinion exception allows a witness to give opinion evidence
on the impact of accidents on individuals with athletic or other employment
potential, where the impact of the loss needs to be assessed. The plaintiffs
counsel relies on the four criteria in R. v. Graat, which he says are
satisfied in these circumstances:
1.
the witnesses were in a better position than the trier of fact to form
the opinion;
2.
the conclusion reached was one that a person of ordinary experience was
able to make;
3.
the witness, though not an expert, had the requisite experience to reach
the conclusion; and
4.
the opinions being expressed were only a compendious way of giving
evidence as to certain facts, where those facts were too subtle or complicated
to be narrated as effectively without resort to conclusions.
b)
Defendants Position
[141] The
defendants objection is that these witnesses are people with special knowledge
of the music industry or singing, and are giving expert evidence in the guise
of lay-witness opinion.
[142] While
recognizing the exception enunciated in Graat that lay opinions are
admissible when they are a compendious statement of facts too subtle or too
complicated to be narrated separately and distinctly, the defendant says that
opinions falling within this exception are in respect of things like
identification of handwriting, age, the condition or emotional state of a
person, and certain questions of value and estimates of speed. Here, the
defendant argues, the testimony is expert evidence which, to be admissible
under the Supreme Court Civil Rules, B.C. Reg. 168/2009, required proper
qualifications, a formal report, and notice. While the defendant concedes that
the witnesses could speak generally about the quality of the plaintiffs singing,
her performance, or her Bette Midler show, the defendant says that the impugned
evidence goes too far and is inadmissible.
[143] The
defendant gives as examples of inadmissible testimony, instances where a
witness compared and contrasted the plaintiffs singing ability before and
after the accident; compared and contrasted the plaintiff to other performers
who do Bette Midler imitations or to Bette Midler herself; or commented on
technical deficiencies in her voice (including the plaintiffs own critique of
what she deemed to be a poor performance in August 2009). The defendant says
that the evidence of the plaintiff, Miles Black, Sue Leonard, Jody Smith, and
Edie Perala, demonstrates there is a need for special knowledge in order to
critique a singers ability to sing and perform. The defendants objection is
grounded in the detailed nature of the evidence regarding the quality of the
plaintiffs voice, which referenced factors such as: pitch, depth, breathiness,
diction, rhyme, and timbre. Defendants counsel says this evidence is not a
compendious mode of speaking but amounts to expert opinion premised on expertise.
[144] Moreover,
the defendant says the evidence concerning what would have happened with the Bette
Midler tribute show is speculative and is of no probative value. The
defendants objection is different in this respect, in that evidence regarding
the plaintiffs likelihood of success or earnings is not only expert opinion
evidence, but is also objectionable because it approaches the central issue of
earning capacity and is inadmissible on that basis as well.
c)
Discussion & Conclusion
[145] My
conclusion with respect to the defendants objection is as follows.
[146] I observe
that the evidence objected to is sought to be introduced for different purposes
and so I will deal with those aspects in turn.
[147] I find where
the witness in question has sufficient personal experience, the witness is able
to give his or her lay opinion as to the quality of the plaintiffs performance
and singing, because that opinion is relevant and is a compendious way of
giving evidence of certain facts that are too subtle or complicated to be
narrated as effectively without resort to conclusions. Testimony which falls
within this category is evidence of witnesses as to the quality of the
plaintiffs singing, performance and energy, as well as to the quality of her
performances as Bette Midler.
[148] I also find
that these witnesses, as they have the requisite experience, are capable of
giving admissible lay opinion evidence comparing the plaintiff to other tribute
performers generally, Bette Midler tribute singers, or Bette Midler.
[149]
This conclusion are supported by the authorities.
[150]
The case of Albert v. Politano (26 June 2012), Vancouver M104190
(B.C.S.C.) concerned a professional boxer who suffered a hand injury in a
collision. The court allowed former coaches and persons involved with the
plaintiff in a professional capacity to testify before the jury about the
plaintiffs accomplishments, abilities, and his pre-accident potential.
Greyell J. ruled (at para. 11) that the impugned evidence met the lay
witness opinion criteria described in Graat, as follows:
I find the lay witness opinion
tendered by the plaintiff meets [the Graat] criteria. Each witness
worked with or at least closely observed the plaintiffs development as a
boxer. Each witness is in a better position than the trier of fact to draw an
inference as to the plaintiffs future career as a boxer. The witnesses all
have experiential capacity, which I find is different from the ordinary
circumstances of life (to which the jury is accustomed). Finally, the witness
opinion is a "compendious mode of speaking". In other words, the
facts are too subtle and too complicated to be narrated separately and
distinctly (as explained in Graat at 841).
[151]
The admissibility of that evidence was not specifically an issue for the
Court of Appeal (2013 BCCA 194), which upheld the award of $898,000 in lost
earning capacity. The court noted (at paras. 52-53) that although Mr. Albert
had never fought for more than $5,000 before,
[t]he jury must have considered that his boxing ability was
diminished as the result of the injuries from the accident. It is true that Mr. Albert
did not earn very much money from boxing prior to the accident. It is also
true that there was not a great deal of evidence about the size of the purses
available in professional boxing. Nonetheless there was some evidence. Witnesses
from the world of boxing did testify to some extent as to the purses won in
certain matches, particularly in Canada. There was evidence, therefore, before
the jury from which they could conclude that Mr. Albert had the skills to
fight for, and win, purses in the time between the accident and the trial,
amounting to $60,000.
I have come to the same
conclusion in respect to the award for future loss.
There was
evidence of
his considerable abilities and evidence of the purses available in the boxing
world, even in Canada, that would support an award of $838,000. I would not
interfere with the award for future loss of earnings.
[152]
In Bonham v. Smith (1998), 50 B.C.L.R. (3d) 350 (S.C.) the
plaintiff, a leading triathlete, was injured in a bicycle accident. The court noted
(at para. 17) that it was
assisted in this case by the
evidence given by other elite athletes with respect to the abilities and
potential of [the plaintiff].
[153] Finally, in
D.K.B. v. British Columbia, 2011 BCSC 418, Dley J. considered the claim
of the plaintiff, a 13-year-old hockey player who had been sexually abused by
his coach. In assessing the extent to which that abuse had impacted his
ability to earn income, the court heard evidence from two experienced hockey
lay witnesses a scout for the Western Hockey League and the Assistant General
Manager of a National Hockey League club as well as the goalie coach for the
same National Hockey League club. Those witnesses spoke of the significant
mental and emotional aspect to playing hockey at the professional level (at para. 93).
[154] Returning
to the case at bar, although I hold that the witnesses whose testimony the
defendant objected to could give evidence as I have described, I find they were
not entitled to give opinion evidence in a more detailed or technical fashion,
such as describing aspects of the pitch, depth, diction, breathiness, etc. of
the plaintiffs singing. This type of evidence calls for expert opinion, beyond
the opinion that persons of ordinary experience are able to give. Moreover, it
is not the type of evidence that could be described as a compendious mode of
speaking, when the facts are otherwise too subtle and too complicated to be
narrated separately and distinctly.
[155] Apart from
general observations of the plaintiffs singing and performance abilities, any
detailed explanation of the plaintiffs singing difficulties and the cause of
those difficulties falls within the purview of expert evidence that requires
notice and proven expertise. In the case at bar, the problem is not so much
that many of the witnesses challenged by the defendants objection do not have
that expertise they may well have – rather, the problem is that if the
plaintiff wished to lead technical expert opinion evidence, it had to give
notice of the opinion and qualifications of the expert to the defendant, and
establish that the expert is qualified, which it did not do.
[156] I turn now
to some of the other purposes for which the plaintiff tendered the impugned
evidence.
[157] I find the
witnesses who gave evidence about the tribute band or tribute artist industry,
and incomes generally available to artists in that industry, were giving
factual evidence of which they had firsthand knowledge and to which they could testify.
[158] Similarly,
I find the witnesses who gave evidence about specific opportunities personally
known to them to which the plaintiff had access were giving factual evidence,
and accordingly that evidence is admissible.
[159] However, I
pause here to highlight the bounds of admissibility regarding such evidence. The
opinion or statement by a witness that the plaintiff would have made it, as was
given, for example, by Jodi Lee Smith, Edie Perala, and other witnesses, is not
admissible for the purpose of supporting the plaintiffs probability of
achieving financial success in the entertainment field. This is because it
goes beyond the proper bounds of lay opinion evidence: it is a speculative
opinion that depends significantly on how she would have acted or how others
would have acted or received her if she pursued this career and perhaps more
importantly, to the extent it is not speculative, it is opinion evidence that involves
extensive expert knowledge of the entertainment world. To the extent that such
an opinion on the marketability of the plaintiffs act could be admissible, I
find that it must be accompanied by a properly qualified expert in the
entertainment field with proper written notice to the opposing party. That
expertise of course can arise in numerous ways but it has to be established
with evidence. I think an opinion that the plaintiff would have succeeded is
not objectionable as a statement of the witnesses general view of the quality
of the plaintiffs performance, but if tendered for a purpose beyond that, it is
objectionable because it requires specific expertise in the entertainment field
to give that opinion, and notice of that expertise and opinion is required.
That has not happened in this case.
[160] Although
the defendant argues that expressions to the effect that the plaintiff would
have made it are inadmissible as too close to the question that the court has
to decide, I would not exclude the evidence on that basis. That is really a
matter of weight rather than admissibility.
[161] The
defendant objected to the plaintiffs own observations on her singing at a gig
in 2009. I overrule that objection. The defendant invited that observation by
the cross-examination and even if it was expert opinion evidence, the plaintiff
was entitled to reply without notice. In any event, the plaintiff, I find, was
qualified by her experience to give the opinions she gave.
2.
Discussion of Real and Substantial Possibility
[162] With that
background and ruling on the admissibility of what I have referred to as the
lay opinion evidence, I turn to the determination of the issue: namely, whether
the plaintiff has established a real and substantial possibility of future
events following the accident that will cause her loss.
[163] In this
regard, I will review the plaintiffs work history, discuss the development of
the Bette Midler show, discuss the admissible evidence of the plaintiffs injury
and its effects both on her voice and in terms of chronic pain, and then state
my conclusion on whether she has established as a result of the accident a real
and substantial possibility of a future event or events giving rise to a loss.
a)
Plaintiffs Income Earning History
[164] Essentially,
from her teenage years to the date of the accident and beyond, the plaintiff has
attempted to make a living as a singer. Although she has had some significant success
in the past, and although she disputes that her income could be as low as her
tax returns over the last fifteen years or so before the 2008 accident suggest (because
she had to earn more money to live or her accountant had not put down all her
earnings), her counsel for the purposes of this claim does not seriously
challenge her low historical earnings as a singer. For background, her
evidence was to the effect that she had to earn around $15,000 or thereabouts to
live and that her tax returns could not be correct.
[165] The
plaintiff is now 48 years of age and has been singing professionally since she
was 15. Apart from some modest painting and gilding work in the early 2000s,
and an attempt to sell cosmetic products post-accident, her earnings have
generally been from various attempts at income generation as a singer.
[166] In the
past 20 years, she has been involved in the music industry in different ways. A
partial history is as follows. From 1993, she was with Tomcat Records until a
breakup in 1996 or 1997. She was then managed by John Williams until 1999 and
released a self-titled album. In 2000, she worked with the Bobby Curtola show.
In 2001 she was a backup singer for Bobby Bruce and sang at the 2003 Merritt
Mountain Festival. In 2005 she performed the Bette Midler show at the PNE and
at the Cascades Casino. In 2007 she performed a few gigs with Mr. Marsland
and as a backup for Bobby Bruce. In 2008 she performed 10-12 shows mostly with
the Marsland Giczi band (one being a show as Bette Midler on Bowen Island). During
that year she signed a contract with Abacus.
[167] The
plaintiffs gross annual income according to her tax returns from 2001 to 2008
varied between $10,347 and $23,683, excepting a low in one year of just over
$2,000. In 2005, she had gross income of $23,683, most of which income was
from the PNE and Cascades; her net income for that year was only $3,378. Her
gross income from 2001 to 2008 averaged under $9,000 per year and her net
income for tax purposes during that period, according to the defendants
submission which appears correct, was under $1,200 per year. The plaintiffs
accountant was not called and no cogent evidence was led by the plaintiff that
showed her annual income was much different that was declared on her tax
returns. Although I find that the plaintiff did have some undeclared income,
she had a very modest income in the seven or eight years before the 2008
accident
b)
The BetteRageous Show
[168] For this
claim, the most important issue is the viability of the BetteRageous show, and
whether it was a real and substantial possibility for income in the future for
the plaintiff. The genesis for the Bette Midler tribute show was when Mr. Bobby
Bruce, with whom the plaintiff was performing as a backup singer, suggested she
perform as a Bette Midler impersonator. The plaintiff started to mimic the
physicality of Bette Midler and began to perform songs as Bette Midler. She
went on stage with Mr. Bruce and performed a few songs, and by September 2005,
she performed a Bette Midler show at the PNE with Bette Midlers own producer,
Robby Buchanan, playing in her band. She also performed a Bette Midler show at
the Cascades Casino later that year.
[169] The BetteRageous
show was more than just an idea. I watched a video of the show being
performed. It is apparent that the show required singing talent, an ability to
mimic Bette Midler, and the agility and strength to perform the show. In my
assessment, the plaintiff and the show were very good.
[170] The
plaintiff signed a contract with the Abacus group in April 2008, before the
subject accident. Mr. Fred Buttram of Abacus took steps to attempt to
book the BetteRageous show in Reno and Las Vegas.
c)
Conclusion
[171] Has the
plaintiff proven a real and substantial possibility of a future event leading
to an income loss?
[172] The
defendant says that it is speculative whether the plaintiff at the time of the
accident had a real and substantial possibility in the future to earn income as
a Bette Midler tribute singer. Further, the defendant says there is no cogent
evidence that she could not do such a performance if it was actually
available, given that her voice after the accident permitted it. In the
defendants submission, the plaintiff is not as injured as she contends. In this
respect, the defendant points to the plaintiff singing at the Yale in August
2009 where, in the defendants submission, the plaintiff was moving fluidly and
apparently singing well.
[173] I find,
however, that the admissible evidence shows the plaintiff over time developed a
chronic pain condition, and it has affected her voice in the manner and for the
reasons described by Dr. Morrison and Ms. Davies. As I described
earlier, I have concluded that the plaintiff, as a result of the accident,
suffered a muscle tension injury that has affected her singing ability and that
she developed a chronic pain condition. I think the lay evidence of Mr. Buchanan
and Mr. Black of the change in her voice is admissible, as is Mr. Blacks
evidence that in 2009 he watched Ms. Giczi attempt to record, but she
could not make it through a song properly and broke down in tears. I have also
concluded that the effect of these conditions prevent her from performing the
Bette Midler show commercially at the present time. Given her chronic pain, I
find that is so even if she recovers from her muscle tension problem that
affects her voice.
[174] Overall, I
find it is a real and substantial possibility but for the injuries the
plaintiff suffered in the 2008 accident that she would earn significant income
in the future by performing the Bette Midler show. The evidence is clear that
there is a market in the entertainment world for good tribute acts for
performers who have been and remain popular. I also find that she had a real
and substantial possibility to earn income as a gilder, a painter, or a seller
of cosmetics and that has been impaired by the accident
[175] Although
there is evidence that goes to the extent of the plaintiffs injuries and the
extent to which the Bette Midler show was ready for the marketplace, I find the
threshold of a real and substantial possibility has been satisfied and that
this evidence goes to the question of assessing the loss.
[176] The
defendant says this case is like Morlan v. Barrett, 2012 BCCA 66, where
the Court of Appeal held that although the plaintiff had established an
impairment of her earning capacity, the trial judge erred in finding there was
a real and substantial possibility that, but for the accidents, Ms. Morlan
would have been promoted to a director’s position. The court noted that while
the evidence was sufficient to establish that Ms. Morlan was qualified for
and would have been interested in pursuing such a position, it was not
sufficient to establish a real and substantial possibility that she would in
fact have secured one (at para. 59). Specifically, the court found there was
a complete lack of evidence as to the availability and level of competition for
those positions.
[177] Here, the
evidence of the nature of the tribute performer industry; the interest and
ability of the plaintiff in performing as Bette Midler; the development of the
show; the quality of the plaintiffs performance; and the efforts made to
develop and market the show, take this case at least to the level where there
is a real and substantial possibility but for the injuries in the accident, that
the plaintiff would have earned income as a successful Bette Midler performer.
[178] I find the
plaintiff has established a real and substantial possibility of a future event,
her continuing disability, affecting her ability to earn income as a singer
generally and from other occupations such as gilding, painting and selling
cosmetic products.
E.
Assessment of the Plaintiffs Loss
[179] I turn to
the assessment of the plaintiffs loss.
[180] The
plaintiff argues that in the pre-trial period, but for the accident, there was
a substantial possibility that she would have made it as a Bette Midler
tribute artist in Reno and then on to Las Vegas by not doing so she lost
perhaps $50,000 to $100,000 per year. Plaintiffs counsel argues that, based
on the five year period since the 2008 accident, this suggests a starting
point figure of $375,000 before taking into account contingencies. As to
future loss, the plaintiff points to the evidence of an economist, Kevin
Turnbull. His evidence was based on the assumption that the middle range of
earnings for working tribute artists is $100,000 per year. The plaintiff takes
this evidence as a starting point, which yields a present value calculation of
$1,535,000 based on 20 years of income earning. Plaintiffs counsel acknowledges
this is not the end of the inquiry but rather a starting point, and that the
overall fairness and reasonableness of the award must be considered taking into
account all of the evidence, including positive and negative contingencies.
[181] In order
to assess the plaintiffs damages for impairment of her past and future earning
capacity, there are many factors to consider. The assessment I must make in
determining the appropriate damage award includes an assessment of the impairment
of the capacity of the plaintiff to earn income from the Bette Midler show and
from other employment opportunities.
[182] I will
consider evidence of numerous things: the plaintiffs past income from singing
and other types of work; her ability to do that work before and after the accident;
her prospects for earning income as a singer; the income that some tribute
singers make; the expert economists evidence as a reference point in assessing
the possible magnitude of the loss in different circumstances, and the strength
of the plaintiffs opportunity to sing and make income as a tribute singer. Further,
I believe there are numerous contingencies, both positive and negative, that
should be taken into account in assessing the damages, which I have discussed
below.
[183] Although
the evidence was not detailed or specific, Leah Bruce, who books Bobby Bruces shows
and other tribute acts, provided what I think is reasonable factual evidence of
the range of income for successful working tribute acts. She indicated that
since 2008, her husband has performed at least one hundred Nearly Neil shows
each year, and in most years he has performed in the range of 120-150 shows.
For example, in 2008, he earned a gross income of $300,000. After payments of $100,000
for the bands expenses and $50,000 for travel and production costs, that left
$150,000 as net income for Mr. Bruce. Ms. Bruce has dealt with other
tribute shows such as the AbbaCadabra show (an Abba tribute band). She said that
for a tribute performer, the bottom would be $1,000 per week. According to her
evidence, $1,500 per week is still a low rate for a good tribute artist, and
$2,000 per week, on average, is good pay for a tribute artist. Based on this
evidence, the plaintiff says that, looking at a working tribute artist, a range
of $1,000-$3,000 per week should be a guide.
[184] While this
evidence provides a very general indication of the possible income available to
successful tribute performers, of course many tribute performers, for a variety
of reasons, are not commercially successful.
[185] Even if
the BetteRageous show had succeeded, the assessment of loss must consider an
even wider range of possible income and other possibilities. I think
realistically that the show could have received some bookings, but may not have
generated much net profit. If successful, it would still likely take
significant time until the show was regularly booked or achieved any real
success. It may have had sporadic success or perhaps, even if successful, may only
have been successful for a few years. Or it may have done quite well. Mr. Turnbulls
report is of some utility as it allows me to consider, for reference purposes,
the present value of possible income streams for any number of years.
[186] The past
is often an indication of what will happen in the future. The plaintiffs
actual earnings from the Bette Midler show represent very little net income. The
plaintiff, although singing through her teenage and adult years, has earned
very modest annual incomes from singing or otherwise. The plaintiffs counsel
says that my assessment would be skewed if I placed too much weight on her
actual earnings, which counsel acknowledges are poor, because the plaintiffs
show was new and was about to take off at the time of the accident.
[187] One factor
to consider in this assessment is whether the show was good or not. I
appreciate the difficulty in determining whether the marketplace will reward a
performer financially. Presumably a good show has a greater chance of success,
but predicting success is obviously difficult. I heard evidence from a number
of witnesses who had seen it and believed the show was good. As already
indicated, I have concluded that the lay opinion evidence as to the quality of
the Bette Midler show is admissible, although to the extent it went so far as
to constitute an opinion that the plaintiff would actually succeed it is
inadmissible. In addition, I saw a recording of the plaintiffs Bette Midler
show and formed the assessment that it was a very good show. The evidence of
the audience reaction when the show was performed at the PNE and at the casino,
as well as the admissible lay opinion evidence, supports that conclusion.
[188] However,
the evidence shows and common experience supports that very few entertainers
succeed in making a reasonable income from their chosen line of work. A good example
is the plaintiffs pre-tribute singer history, in that she was generally
regarded as a successful and popular singer but in fact earned very little
income. While her possible financial success may have been affected by
management problems, the difficulty of succeeding in the music business is some
indication of the probability of earning substantial monies in this particular
tribute show she was engaged in.
[189] The
defendant says that Mr. Marsland, who is an exceptional guitar player, had
to work at another job outside of the music business to make ends meet, and
that his experience is some evidence of how difficult it is to succeed in the
music business
[190] In assessing
the viability of the BetteRageous show, the defendant says the circumstantial
evidence pertaining to the witnesses who know about the show is telling.
[191] The
defendant says that to assess objectively the strength of the possibility to
succeed as a Bette Midler tribute performer, one has to look at objective facts.
This includes, Mr. Murphy argues, the evidence that musicians and booking
agents did not hire her or book her for repeated performances: Paul Airey did
not hire her as a studio singer between 2003 and 2008; Robbie Buchanan, who
performed with her at the PNE, did not provide assistance in finding tangible
opportunities for the BetteRageous show; Bobby Bruce, who performed with her in
2004 and at Bowen Island in July 2008, did not otherwise perform with her in
that period; Ms. Perala, who was enthusiastic about the September 2005
show, did not book her after that show; Catherine St. Germaine, who booked her
at the Great Canadian Casino in September 2005, did not book her after that
date; and Jodi Smith, who booked her at the 2005 PNE show, did not book her
further after that time. The plaintiff did not pursue the assistance of
Buchanan, Bruce, Airey, or others to make the Bette Midler show a success. All
those facts point to some degree to the strength of the possibility that the
plaintiff would have succeeded as a Bette Midler tribute performer.
[192] The
defendant says the acid test of whether the Bette Midler show was a
substantial possibility is how it did following its creation in 2004/2005.
[193] This leads
to the question of why BetteRageous did not take off prior to the subject accident,
and what other positive and negative contingencies or factors are relevant to
consider in the assessment of the plaintiffs loss.
[194] The Bette
Midler show was launched in late 2004 to early 2005 and the subject accident
occurred in 2008. Why did the show not take off and succeed during that period
of time if it was in fact a real and substantial possibility for success? I
think it is important to note that this was not simply an idea. The show had
been put together to the extent that it could be performed as a full-stage
production with a professional band, and it was well received by the limited
audience that heard it. But if it was such a good possibility, why was it not
pursued more aggressively, and why did it not succeed in this time period?
[195] This
involves a consideration of what was happening to the plaintiff between 2005
and 2008. The evidence indicates that for much of that period, there were
other factors that prevented the plaintiff from pursuing even a good
opportunity. First, the plaintiff was diagnosed with a serious and aggressive
form of breast cancer three months after the first BetteRageous show. For a
lengthy period over a year she was under chemotherapy treatment. Then in
2007, she had a serious car accident and, for a time, was on crutches. As
well, the plaintiff was preoccupied with her work on the Gigliotti project,
where she was recording with Miles Black.
[196] Although a
number of things disrupted her plan to develop and market the Bette Midler
show, the plaintiff says that in the eight months prior to the 2008 accident, she
was feeling well and fit. She points to the examination by Dr. Keyes in
this respect. I think the period from January 2008 until the accident in
August 2008 is significant in assessing the viability of this tribute show, and
Ms. Giczis ability to earn income from it in the future.
[197] The
plaintiff points to the posting of her BetteRageous performance on YouTube the
day before her accident as some evidence of the currency of the plan to market
the show. However, I found the plaintiffs evidence was unclear as to why the
show did not get more traction or she did not pursue it more vigorously in
those eight months from January 2008 until August 2008.
[198] The
defendant argues that the efforts with Abacus indicate that there was no real
interest in the BetteRageous show. The defendant suggests it was a lack of
interest in the show, a lack of drive, or perhaps physical difficulties from
pre-existing conditions, that prevented the plaintiff for pursuing the
opportunity.
[199] It is
apparent from the evidence and I find that to succeed with a tribute show such
as the BetteRageous show, a performer requires talent, a good singing voice, a
comic ability, stamina and agility, and a strong drive to succeed.
[200] Mr. Bruce
certainly has that drive and determination and has succeeded as a tribute
performer, doing his Neil Diamond show. Mr. Murphy argues that while Mr. Bruce
made his career a success over twenty years, the plaintiff does not have that
drive but was really relying on others such as Mr. Gigliotti or Mr. Buttram
to do this for her.
[201] I have to
consider the extent to which the plaintiffs pre-accident condition or
personality affected her drive and stamina to pursue and perform the Bette
Midler show. I find the plaintiffs drive was, to a degree, affected by her
pre-existing problems, and that this had and would have continued to have a
measurable impact on the likelihood of success of the show.
[202] The
defendant also argues that the show did not take off because the plaintiff was
not as pain free as she suggests she was in 2008, and that the evidence of her
reports to Messrs. Gibson and Khan and to Dr. Condon suggests she had
continuing problems, as I have described in these reasons. This suggests the
possibility that her condition at that time at least to some degree restricted
her ability or stamina to participate in the Bette Midler show to the extent
that she says she could have or wanted to.
[203] Let me return
to the Abacus situation. Mr. Buttram of Abacus was a novice in the music
industry. Through Abacus Entertainment he signed the plaintiff to a contract
in April 2008. Sue Leonard, who testified, joined the Abacus venture, as did Mr. Marsland.
Mr. Buttram was impressed by Ms. Giczis singing ability and was apparently
actively promoting the plaintiffs Bette Midler show in Reno. However,
although he was optimistic prior to the August 2008 accident, Mr. Buttram
was unsuccessful in booking the BetteRageous show at all. He was seeking
$7,000 for a live band show and $1,500 for a track show (using pre-recorded
musical tracks that had been prepared in anticipation of the show going forward).
Mr. Buttram testified that a deal for the BetteRageous show was close but
the accident occurred before it could be finalized. Ultimately, he did not
succeed in booking an act for any of the artists in Abacus. Although he gave
his opinion that the prospects for the BetteRageous show were to start small in
Reno and grow into a larger Las Vegas show with substantial earnings, I find his
evidence to be speculative, and Mr. Buttrams opinion would be admissible in
this regard only if he had been qualified as an expert after notice, which did
not happen.
[204] Nevertheless,
there was some evidence of actual opportunities. I find the evidence of the Mr. and
Mrs. Bruce showed there was a proposal for the plaintiff to travel with Mr. Bruce
and perform a tribute tour in Australia for $2,000 a week. Mr. Bruce has
travelled and toured in Australia on a number of occasions in the past. The
plaintiff said she had to decline the proposal because of her condition.
[205] Overall, I
think it is fair, based on all of the evidence, to set the probability the
plaintiff would have achieved some long-term financial success as a Bette
Midler tribute performer at roughly 15%, considering that success, if it occurred
would also likely only have followed after several years developing, marketing
and performing the act. However, even with success there are possible negative
contingencies that would affect possible income from the show including the
plaintiffs disability or loss of interest in the public.
[206] Even apart
from the plaintiffs impairment of earning capacity relative to the Bette
Midler show, however, the evidence shows the plaintiffs earning capacity has been
impaired generally, whether or not BetteRageous was a real and substantial possibility.
The evidence shows the plaintiff continues to suffer from chronic pain and that
she possessed other income earning abilities that have been affected by her
injuries namely, her singing, generally, and her ability to earn income from
physical work such as painting, gilding, and things such as selling cosmetics.
[207] In
assessing the loss of earning capacity, I have to assess the loss as a whole.
This includes loss of the opportunity to do the Bette Midler show, which is an
aspect of the impairment of the plaintiffs earning capacity as a whole. In
this regard, I am mindful of the plaintiffs historical pre-accident earnings;
however, while they are a significant factor, they are not determinative as I
find that before the accident the plaintiff had a real income earning capacity
and the question for me to assess is the extent of impairment of that earning
capacity.
[208]
Niall Trainor testified as a vocational rehabilitation expert and was
qualified to give opinion evidence on the plaintiffs competitive
employability. He assumed, based on the medical evidence, that the plaintiff
had chronic pain in the form of recurrent headaches, pain in her neck,
shoulder, jaw and chest, and dizziness and changes to her voice, including
hoarseness. Based on the medical information that he reviewed, he felt it was
unlikely she could return to her former singing career, nor to what he
described as painting and decorating. He suggested that she pursue part-time
employment and that she may be able to pursue full-time employment, depending
on her coping skills and a sympathetic employer. He agreed that people with
chronic pain work, and he acknowledged that none of her work before the
accident was full-time. He said:
In sum, in my opinion, Ms. Blackwell
is not competitively employable. In other words, because there are very few
occupations open to her, and because she is an unattractive candidate in the
job market, it is more probable than not that she would
continue to have difficulty finding and keeping employment. In my opinion, all
things considered, a good vocational outcome in this case would be regular
part-time employment with a sympathetic employer. In the fullness of time, she
may be able to increase to full-time employment depending on her symptoms and
coping skills. However, realistically, the more probable outcome in a case of
this nature is ongoing difficulty finding and keeping employment.
[209] I have
assessed the impairment of the plaintiffs earning capacity. Her capacity has
been impaired by chronic pain and singing difficulty. Historically, she has
earned income from singing and some physical work, such as painting and
gilding. She has no particular specialized training but has had success, albeit
modest success, as a singer. She has also had modest earnings from other lines
of work she has tried. In assessing her loss, I have concluded she has
nevertheless has a modest earning capacity even with her chronic pain.
[210] In sum,
although the plaintiff has demonstrated a real and substantial possibility of
future events leading to income loss, the evidence does not support a claim as
large as she asserts. In assessing the loss, I have considered the plaintiffs
talent, which appears good, the range of possible earnings if the BetteRageous
show had succeeded, the plaintiffs ability or commitment to pursue the show in
light of her pre-accident symptoms, the apparent uptake on the show, and the
impact of the plaintiffs injuries on her other income opportunities, such as
painting, gilding, selling cosmetics, and other physical work. I have also
considered the other factors and contingencies referred to in these reasons.
[211] Accordingly,
I assess her damages for impairment of her earning capacity, both before and
after trial, as follows:
Impairment | $40,000 |
Impairment | $175,000 |
VI.
Mitigation
[212] The defendant
seeks to reduce the plaintiffs damages for the periods before and after the
trial based on what he asserts is the plaintiffs failure to mitigate her
damages.
[213] The
plaintiff has a duty to take reasonable steps to mitigate her damages. The
defendant recognizes the onus is on him to show: the steps she might have taken
to avert the loss; that a reasonable person would have taken those steps; that the
plaintiff unreasonably failed to pursue those steps; and the extent to which
the plaintiffs loss would have been reduced had those steps been taken: Janiak v. Ippolito¸ [1985] 1 S.C.R. 146 at paras. 32-35.
[214]
In Chiu v. Chiu, 2002 BCCA 618, Low J.A.
explained the test to be applied in determining whether a defendant has proven
a failure to mitigate. At para. 57 he wrote:
In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiffs damages would
have been reduced had he acted reasonably.
[215] Although
the defendant makes a number of points in its mitigation argument, the central
point and the only one which I think could have merit relates to the suggested
treatment of the plaintiff for her muscle tension disorder. The defendant assumes
for the purposes of this argument that the plaintiffs voice problem is muscle
related, as was the opinion of Dr. Morrison.
[216] Dr. OConnor,
the physiatrist who first saw the plaintiff in 2010, recommended a strength and
conditioning program and gave her a handout of recommended exercises. The
defendant asserts that the plaintiff failed to follow through with this
recommendation, that it was unreasonable not to follow it, and that if she had
done so, there is a likelihood that she would have improved.
[217] The
plaintiff was cross-examined about this exercise or strengthening program. Although
Dr. OConnor said the plaintiff had not specifically been doing the
program, the plaintiff testified that she had pain in her chest doing the plank
exercise and that when she did the others she felt pain and spasm in her neck.
Dr. OConnor said the plaintiff needed to do the strengthening exercises
to see if she could strengthen the muscles around her neck and shoulder girdle.
He said that if she followed the program, he was hopeful that she would
improve, but that not everyone does. Dr. Sudol did not specifically
recommend a strengthening program but did not disagree with Dr. OConnors
recommendation. She said that some patients can do the exercises and some find
it very hard.
[218] Although I
find the plaintiff ought to have pursued the strengthening program that was
recommended by Dr. OConnor on two occasions, I am not persuaded that had
she done the program as directed within her pain tolerance, it would have improved
her muscle spasm and tension which is the cause of her pain and singing
difficulties. Neither am I persuaded that the exercises recommended by
Ms. Davies would have resolved the muscle tension problem. Although Dr. OConnor
was hopeful, the evidence Dr. Morrisons, for example, who also
recommended neck strengthening demonstrated that this is not a simple or
straightforward matter. Accordingly, I decline to reduce the plaintiffs
damages for failure to mitigate. If I am wrong on this point, then I would have
reduced her damages by 10%.
VII.
COST OF FUTURE CARE
[219] The
plaintiff seeks damages for the cost of future care in the ballpark sum of
$75,000. Her claim for future care costs is a general amount after considering
the following claims: vocational support to assist in job finding at a one-time
cost of $3,000 to $4,000 (Trainor); psychological sessions with Dr. Kwa of
$2,250; $20,000-$30,000 to fix her crowns, which is alleged to be a more complicated
process since the 2008 accident because of her TMJ problem; physiotherapy work
and psychological work recommended by Dr. Armstrong, totalling about
$4,000; and a recommendation that she participate in an
ongoing maintenance program with various therapeutic modalities such as physiotherapy,
massage and myofascial release techniques to help with symptom management and
chronic pain, at $10,000 for five years.
[220] The
defendant takes a significantly different position and says that the plaintiff
should recover $2,500 for physiotherapy, rehabilitation and voice therapy
costs.
[221]
As Smith J. noted in Bystedt (Guardian ad
litem of) v. Hay, 2001 BCSC 1735 at para. 163, affd 2004 BCCA 124:
the claim [for cost of future care] must
be supported by evidence that establishes the proposed case is what a
reasonable person of ample means would provide in order to meet what the
plaintiff reasonably needs to expend for the purpose of making good the loss
It must also be based on an objective test of what is moderate and fair to both
parties
[Citations omitted.]
[222]
McLachlin J. (as
she then was), put it this way in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at para. 198
(S.C.), affd (1987), 49 B.C.L.R. (2d) 99 (C.A.):
The
test for determining the appropriate award under the heading of cost of future
care, it may be inferred, is an objective one based on medical evidence.
[223]
The test in Milina
has been interpreted to mean that the care must relate to health needs, and not
simply enjoyment of life; however, the test does not require that a medical
doctor provide the evidence of the specific care that is required by the
plaintiff: Jacobsen v. Nike Canada Ltd. (1996), 133 D.L.R. (4th) 377 at paras. 181-182
(B.C.S.C.).
[224] I find
that the following future care costs claims are proven to the required
standard: $4,000 for vocational support; and $6,000 for various treatments to
deal with symptom management in the future.
[225] The only
other claim that I think could have support in the evidence is the claim for
crown work at a cost of between $20,000-$30,000. Crown work was required
before the accident. The question is whether the work required is more
extensive or more expensive because of the exacerbation of the plaintiffs TMJ
problems in the 2008 accident. In his submissions, counsel for the plaintiff
pointed to the testimony of Dr. Davison to the effect that fixing the
plaintiffs crowns is complicated by her TMJ issues, which have resulted in two
different bite patterns. This will require crowns and orthodontics or a full
mouth reconstruction to repair, at a cost of as much as $20,000 to $30,000. I
am unable to find on the evidence that the crown work and orthodontic work was
caused by or made more expensive because of the 2008 accident.
[226] Accordingly,
I award the sum of $10,000 for cost of future care.
VIII.
SPECIAL DAMAGES
[227] The
plaintiff seeks special damages of $9,265, as set out in exhibit 65.
[228] The
defendant says that the proper amount of special damages is $7,450.02.
[229] The
differences between the parties positions are relatively small. They are a
small amount of bills without receipts, expenses related to ulcers (a condition
admittedly unrelated to the subject accident), half the cost of a mattress,
travel expenses after the plaintiff stopped alternate therapy, the cost of a
dynamic DNA, herbal remedies and naturopathic treatment.
[230] I agree
with the defendant with the exception of the MRI, which I find was a reasonable
expense, and award special damages of $7,911.37.
IX.
CONCLUSION
[231]
In summary, the total damages assessed amount to: $352,911.37.
Non-pecuniary | $120,000.00 |
Loss of Past | $40,000.00 |
Loss of | $175,000.00 |
Future Care | $10,000.00 |
Special | $7,911.37 |
TOTAL: | $352,911.37 |
J.S. Sigurdson J.
The Honourable Mr. Justice J.S. Sigurdson