IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Lewis v. Scheer, |
| 2014 BCSC 573 |
Date: 20140403
Docket: 48699
Registry:
Vernon
Between:
Jeannie Louise
Lewis
Plaintiff
And
Robert Brandt
Scheer
Defendant
Before:
The Honourable Mr. Justice Funt
Reasons for Judgment
Counsel for Plaintiff: | G.P. Weatherill, |
Counsel for Defendant: | G. Ginter |
Place and Date of Trial: | Kelowna, B.C. March 11-15, |
Place and Date of Judgment: | Vernon, B.C. April 3, 2014 |
I.
Introduction
[1]
The plaintiff sustained soft tissue injuries in a November 2, 2010
motor vehicle accident (the MVA) which was of significant impact. The defendant
has admitted liability for the MVA.
[2]
The plaintiff claims damages as follows:
General Damages: $85,000
Past Wage Loss: $36,500
$55,000
Loss of Future Earnings: $125,000
Loss of Housekeeping Capacity: $10,000
Future Care Costs: $110,000
Special Damages
$8,000
Total: $374,500
$393,000
[3]
The plaintiff also had a fall down the stairs of her home on March 23,
2012 resulting in an Achilles tendon injury which required surgery. The
plaintiff says this injury was indirectly caused by the MVA. The range in the past
wage loss reflects the possible relationship of this injury to those sustained
in the MVA.
[4]
The parties agree that the $8,000 for special damages is appropriate.
The quantum for each of the other heads of damages is disputed.
[5]
For the reasons that follow, the Court will award:
General Damages: $70,000
Past Wage Loss: $36,000
Loss of Future Earnings: $60,000
Loss of Housekeeping Capacity: (included
in general damages)
Future Care Costs: $6,000
Special Damages $8,000
Total: $180,000
II.
Background
[6]
The plaintiff was 48 years old at the time of trial. She and her
husband of over 25 years have two grown children and two young
grandchildren. The plaintiff has lived in the area of Lumby all of her life.
[7]
Prior to the MVA, the plaintiff was working as a housekeeper at a Lumby
area independent assisted living retirement home. Her duties involved cleaning
the suites of the homes residents, including dusting, vacuuming, disinfecting,
changing beds and laundry. The plaintiff also cleaned the common areas.
[8]
The plaintiffs employer spoke highly of the plaintiff as an employee.
The plaintiff earned approximately $25,000 per year.
[9]
In general terms, the plaintiffs injuries involve her back, spine,
shoulders and neck. She has daily headaches and has chronic pain.
III.
The plaintiffs reliability
[10]
Ms. Ginter, counsel for the defendant, described the plaintiff as
an unreliable historian. I agree.
[11]
In a November 5, 2010 written statement the plaintiff provided to
the insurance adjuster, she described pain in her neck, shoulders, the full
length of her back, tingling in her left arm, bruising, and an ongoing
headache. She then states: I have not had any prior problems in these areas
before.
[12]
As is described in the various medical reports predating the MVA, the
plaintiff had complained of and been treated for pain in many of the areas
noted, including the neck, shoulders and back. She had also received treatment
for migraine and tension headaches.
[13]
The plaintiff also downplayed or could not recall difficulties prior to
the MVA with her right ankle, a possible explanation for the fall. She testified
in cross-examination:
Q Now, I there were some records from
Dr. Kinakin, a chiropractor, yesterday that appeared to suggest you had
some problem with your right Achilles tendon at that time. Correct?
A By the papers, correct.
Q Yes, by the papers. And then you also saw a
massage therapist, Amber Dyck, and thats D-y-c-k, for some issues with your
right Achilles tendon as well, correct?
A Im not I went to her numerous times,
Im not sure. She worked on lots of different areas.
Q How would you describe that problem that you
had in your right ankle prior to the accident?
A I dont know how
it would ache more in the heel, the bottom part of the foot than the back,
like the back part of the ankle.
And further:
Q … [Ms. Dycks clinical notes also say]
your whole back is sore and also right ankle. And then theres a reference to
right Achilles tendon.
Now, they carry on with the treatments, and
what I want to ask you about is then December 20, 2007, which is on
the second page, and the therapist writes, left arm feeling better, but right
ankle still quite sore. Were you having treatment in November and
December from Amber Dyck, the massage therapist, for treatment in your
right ankle?
A I dont remember the dates. That was a while
ago.
Q Okay. Do you recall telling Ms. Dyck
that your ankle was still quite sore?
A I dont remember.
Q Do you agree that your ankle was quite sore in
December of 2007?
A I dont remember
that far back.
[14]
Cross-examination also revealed that the plaintiff may be stubborn in
her defence of her own views over those of her doctors. For example, in
connection with the fall down the stairs and its relation to the Achilles
tendon injury, she testified in cross-examination:
Q Now, in terms of what you believe to be true
or what you feel may be true about the medical opinions here is, in my friends
opening, your opening yesterday there was a comment that Drs. Brown, your GP,
and Travlos, the specialist that youve seen in Vancouver, are hesitant to
relate the Achilles tendon injury to the collision, but you maintain that the
Achilles tendon is related?
A Correct.
Q So you disagree with Dr. Brown and Dr. Travlos?
A Correct.
Q You disagree with Dr. Laidlow about
fibromyalgia?
A Correct.
Q And you werent happy with Dr. Nowak or Dr. Donat,
the specialists that you saw?
A Correct.
IV.
Medical Evidence
[15]
Dr. Travlos was called by the plaintiff and was qualified to
provide expert evidence with respect to physical medicine and rehabilitation.
[16]
Dr. Laidlow was called by the defendant and was also qualified to
provide expert evidence with respect to physical medicine and rehabilitation.
[17]
Dr. Brown is the plaintiffs general practitioner and was qualified
to provide expert evidence with respect to family medicine.
[18]
The three doctors were in general agreement that the plaintiffs ongoing
symptoms of daily headaches and pain affecting her neck, chest, shoulders and
spine were caused by the MVA. Dr. Travlos noted in his November 14,
2011 report that the plaintiff was likely vulnerable to injury and the
development of more chronic symptoms, given some of the pre-accident complaints
she had.
[19]
In his report, Dr. Travlos also made the following two
observations:
The most effective treatment for soft tissue pains such as Ms. Lewis
has and complains of is mobilisation and activation. Although she is clearly
not happy about being in the active rehabilitation program, as she is not
convinced it is of any benefit, she needs to understand that there is no sudden
magic cure to the symptoms and that the improved function and improved activity
levels will result in much better quality of life, even if the pains remain the
same. The focus should not, therefore, be on reducing pain with the exercise
but improving her function, improving her strength, stamina and endurance. She
will find that she is therefore capable of doing a lot of activities with fewer
symptoms and that it takes a lot more activity to trigger symptoms, allowing
her to be more functional.
I would add that Ms. Lewis
body mass index is very high, in the obese range, and it is going to take her a
long time to become fitter and stronger and more mobile. Therefore, putting
her through a quick four-week program is not likely to magically make her
better. She is almost certain to require a fairly prolonged program over three
months, and beyond that, she has to commit to exercise on her own for at least
another nine to twelve months. Reduction in weight will probably assist her in
feeling better and having more energy. Working with a nutritionist along with
her exercise trainer would definitely be of benefit to her.
[20]
The Achilles tendon injury and related surgery has complicated the
medical aspects and postponed recovery. As Dr. Travlos stated in his December 3,
2012 report:
Prognostically, Ms. Lewis has
not changed at all, as I had expected her to have done, but the situation
has been complicated by her ankle injury. One therefore does have to give her
the benefit of the doubt and the period of down time has been a result of the
ankle injury. One therefore will have to push the boundaries of recovery to a
more distant time, but the lack of change to date does not bode well for
substantial improvement in pains. Indeed, it is my expectation that she is
likely to remain with ongoing chronic pains but it is my opinion that she can
be more functional than she presents with. It is my opinion, therefore, that Ms. Lewis
head, neck and back symptoms, as well as her pelvic pains, will likely remain
with her over the long term, but I do expect her to improve functionally
to the point of returning back to some type of gainful employment.
[21]
With respect to the plaintiffs return to work, in his December 3,
2012 report, Dr. Travlos stated:
Ms. Lewis should be able to
return back to gainful employment but there probably will be some limitations,
assuming that she does not improve much over time. If she improves, then
obviously the limitations will be reduced but, based on her presentation today,
it is more likely than not that she will continue to have pains and therefore
will continue to have restrictions. Her access to the open job market will
therefore be reduced. If she does return back to housekeeping, she may have to
reduce her work hours to accommodate her symptoms. If she returns back to more
sedentary work, then she will probably be able to work longer hours. The goal
of return to more sedentary work would be full-time work but her lack of
progress to date may imply that she will not be able to return back to regular,
full-time work hours, even in a sedentary capacity, and she may have to work
less than full-time hours. I would certainly expect her to be capable of
working 0.7 to 0.8 full-time equivalency with the chronic, ongoing pains that
she has now (excluding the ankle issues), assuming the job to be sedentary.
Obviously, if her recovery progresses, then these restrictions will improve
too.
[22]
The medical evidence recognizes that the pain will be ongoing although
it may reduce as a result of the recommended steps to be taken. These steps
include losing weight, a focus on functionality and not on pain, a regimen of
exercise and activity, and the reduction of the medication the plaintiff is
currently taking.
[23]
The consensus of Dr. Brown, Dr. Laidlow and Dr. Travlos
was that it was unlikely that the March 23, 2012 fall down the stairs was
related to the MVA.
V.
Fall Down the Stairs
[24]
The plaintiff testified that she fell down the stairs of her home on
March 23, 2012, because her hip gave out. After the MVA, she would go
down the stairs sideways, one step at a time. Her back would face the wall and
she would step with her right leg and then with her left leg to the same step,
and then repeat the procedure for each step. On the morning of the fall, she
was descending from the bedroom level of her house when she fell. There was no
handrail.
[25]
On a balance of probabilities, I am not satisfied that the fall down the
stairs was related to the MVA. The plaintiff has not satisfied the test in Clements
v. Clements, 2012 SCC 32, at paras. 8‑10.
[26]
Dr. Travlos in his November 14, 2011 report, which he prepared
after considering the plaintiffs symptoms as she described them and conducting
a physical examination of the plaintiff, does not note any concerns with the
hip giving out. In cross-examination, the plaintiff testified:
Q Okay. Now, by the time you saw
Dr. Travlos, had you had any of those issues with your hip giving out?
A I cant recall.
I dont remember.
[27]
As noted, the medical consensus is that it is unlikely that the
March 23, 2012 fall down the stairs was related to the MVA.
[28]
People stumble on stairs from time to time. Without a handrail, they
may fall and injure themselves. It is unfortunate that the plaintiff fell but
nevertheless it is the Courts opinion that the fall is not connected to the
MVA.
VI.
Damages
A.
Special Damages
[29]
As noted, the parties agree that the quantum of the special damages is
$8,000.
B.
General Damages
[30]
The guiding authority on non-pecuniary damages is the decision of our
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34. The Court in Stapley
describes some of the factors to be considered:
The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris (2004), 237 D.L.R. (4th) 193 at para. 5, 2004 BCCA
146] that influence an award of non-pecuniary damages includes:
(a) age of
the plaintiff;
(b) nature
of the injury;
(c) severity
and duration of pain;
(d) disability;
(e) emotional
suffering; and
(f) loss
or impairment of life;
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment
of family, marital and social relationships;
(h) impairment
of physical and mental abilities;
(i) loss
of lifestyle; and
(j) the plaintiffs stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).
[31]
As noted, the plaintiff seeks $85,000 in non-pecuniary damages. The
defendant argues that $40,000 (inclusive of housekeeping capacity) is an
appropriate award.
[32]
The plaintiff relies on the following authorities, in addition to Stapley,
to assist the Court in determining quantum. These authorities had settlements
which ranged from $50,000 to $175,000:
(a) Iwanik v. Hayes, 2011
BCSC 812;
(b) Jackson v. Mongrain,
2010 BCSC 1866;
(c) Thomas v. Thompson,
2010 BCSC 1309;
(d) Morlan v. Barrett, 2012
BCCA 66;
(e) Marchand v. Pederson,
2011 BCSC 852;
(f) MacKenzie v. Rogalasky,
2011 BCSC 54;
(g) Neumann v. Eskoy, 2010
BCSC 1275;
(h) Kasidoulis v. Russo,
2010 BCSC 978; and
(i) Demarzo v. Michaud
2010 BCSC 255.
[33]
The defendant relies on the following authorities:
(a) Parker v. Lemmon,
2012 BCSC 36;
(b) Paradis v. Gill,
2011 BCSC 1979; and
(c) Dakin v. Roth, 2013
BCSC 8.
[34]
I have also considered three of my own prior decisions involving soft
tissue injuries:
(a) Harvey v. Clasen,
2013 BCSC 402;
(b) Wettlaufer v. Air
Transit A.T. Inc., 2013 BCSC 1245; and
(c) Johal v. Meyede,
2013 BCSC 2381 (under appeal).
[35]
As noted, the plaintiff will have ongoing pain. The focus for the
future is on improving function. In particular, the pain has affected and will
affect her enjoyment of life, family and social relationships, and lifestyle.
The Court will award $70,000 inclusive of housekeeping capacity. The plaintiff
will be able to perform housekeeping functions, albeit with degrees of pain
depending on the particular activity.
C.
Past Wage Loss
[36]
Assuming the Achilles tendon injury was not related to the MVA, the
plaintiff calculated the plaintiffs past wage loss to be $36,500, The
defendant calculated the wage loss to be $35,500. Both calculations are
subject to assumptions and are reasonable. I will award the average of the
two, $36,000.
D.
Loss of Future Earnings
[37]
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal set
forth, at para. 32, the rule that there must be a real and
substantial possibility of a future event leading to an income loss for there
to be recovery for loss of income capacity. The loss may be quantified using
the earnings approach or the capital asset approach.
[38]
In Rosvold v. Dunlop, [2001] B.C.J. No. 4, our Court of
Appeal stated:
[9] Because damage awards
are made as lump sums, an award for loss of future earning capacity must deal
to some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.
[39]
In written argument, plaintiffs counsel explained the $125,000 claimed
under this head of damages as follows:
[52] On the assumption that sometime in the next year or
two (assuming she gets the vocational assistance that has been recommended)
Mrs. Lewis is able to obtain employment in a sedentary role and work .7 of
full-time equivalency, the annual loss would be approximately $7,500.00
($25,000.00 x .7 = $17,500.00); ($25,000.00 – $17,500.00 = $7,500.00). The
present value of a loss of $7,500.00 per year from the date of trial to Mrs. Lewis
65th birthday is $98,300.00 ($13,111.00 x 7.5). To age 70 is $120,000.00 ($15,979.00
x 7.5).
[53] She will clearly need sufficient time for the
counseling, rehabilitation and other recommendations that have been made to be
implemented. Hopefully, these recommendations will assist her and allow her to
be able to focus on function rather than pain. This will not happen overnight.
It is difficult to predict how much time will be required and what the outcome
will be. It is submitted that a reasonable timeframe would be 6 months
1 years. Meanwhile, she will remain unemployed.
[54] It is submitted that on
a global assessment, a fair award under this head should be $125,000.00. The
sum will compensate her for the continued period of unemployment into the
future, the uncertainty of being able to obtain employment in the Lumby or
Vernon areas (which it is submitted, will be a real issue for her given her
age, lack of post-secondary education, work history and ongoing disabilities)
and the factors relevant for assessing the value of lost future earning
capacity as set out in Brown v Golaly [Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.)] and Reilly v. Lynn [Reilly v. Lynn,
2003 BCCA 49].
[40]
As noted, Dr. Travlos stated in his December 3, 2012 report:
I would certainly expect her to
be capable of working 0.7 to 0.8 full-time equivalency with the chronic,
ongoing pains that she now has (excluding the ankle issue), assuming the job to
be sedentary. Obviously, if her recovery progresses, then these restrictions
will improve too.
[41]
The defendant argued that the plaintiff had not proven a real and
substantial probability as required by the rule in Perren v. Lalari.
The defendant submitted that Dr. Laidlows more optimistic opinion should
be preferred:
I do feel that it was probable
that she would get back to the housekeeping work that she had been doing after
the accident, prior to having her Achilles tendon injury. I feel the Achilles
tendon injury has reduced the chances, but I still feel that she can get
back to housekeeping work in the long-term.
[42]
In weighing the views of Dr. Laidlow and Dr. Travlos in
conjunction with the plaintiffs age, education, work experience, reputation as
a very good employee, and economic risks, the Court will award the plaintiff
$60,000 as damages for loss of future earnings.
E.
Cost of Future Care
[43]
Dr. Laidlow and Dr. Travlos both emphasize the plaintiff
should focus on function. In this regard, a dedicated exercise regimen is recommended.
In cross-examination, Dr. Laidlow explained:
Q Right. Now if some modality is helping her
function it may not be helping her physiologically, but functionally they
get a benefit. They can they can move. They can go to work. They can they
can function at home. A modality, such as physiotherapy, why not give it to
her?
A Well, because how many physiotherapy sessions
has she had and where is she now? The treatment that she has had up to this
point, has not achieved what we wanted to do. It’s inadequate and and
ill-conceived. So she needs a specific approach, not just measures that are
passive in nature. It makes no sense whatsoever to me, to keep on doing the
same thing day in and day out, hoping that somehow this time it’s going to
result in a different outcome.
Instead, the therapist should be
involved in coaching her in how to assist herself with an exercise program that
has a realistic chance of moving her from point A to point B. Not something
that’s going to provide her a few hours relief, followed by a crash to exactly
the same level. That will result in nothing, other than an ongoing dependence
on the physiotherapist and no change in her functional status.
I feel, yeah, a physiotherapist
could be of help to her, but not doing the same thing that she has been doing
up until now. Instead, change the direction considerably. Get her involved in
organizing her own program. Let her get her involved in active in being an
active participant in it, then we have a chance of making some gains,
functionally.
So an open-ended statement, as
you suggested, I disagree with. I do feel that a physiotherapist is of use,
but for a limited period of time, and then, after that, she should be able to
carry on things on her own.
Q What about an occupational therapist, are they
useful for rehabilitation purposes to help sort of coordinate things and get
things going?
A But what are we coordinating? We’re she
has to be given a program. She is going to receive some counselling, and then
she needs to get on with it. So
Q Well, who is going to set that up?
A I just outlined
it. That could be organized in concert with her family physician. This is not
complicated stra thing. What’s important is that she get some counselling,
that she gets set up with an exercise program that has a chance from moving her
from point A to B, and then she needs to get on and do it. She doesn’t need to
be meeting with people to coordinate anything. She needs to understand what’s
necessary and then do it.
[44]
Both Dr. Laidlow and Dr. Travlos are of the view that the
plaintiff should reduce her regular doses of medications. Dr. Laidlow
states that the plaintiff will likely require low grade analgesics into the
future.
[45]
The defendant, using some of the costs estimated by Ms. D.
Ruggiero, an occupational therapist, submitted that $3,000 would be a fair and
reasonable amount based on $900 for pain management counselling, $1,510 for a
structured exercise program (with facility pass), and $50 per year for Tylenol.
[46]
With Dr. Laidlows testimony in cross-examination in mind and
wishing to ensure the plaintiff has sufficient funds to have some further
physiotherapy, additional pain management counselling, and the likelihood of
some prescription medications (such as nortriptyline, as Dr. Travlos
stated), the Court will award $6,000 for future care.
VII.
Conclusion
[47]
The Court awards the plaintiff $180,000 as damages.
[48]
If counsel wish to speak to costs, they may contact Scheduling to
arrange a 9:00 a.m., one-hour Chambers hearing within 90 days of the
release of these Reasons.
____________ Funt
J.____________
Funt J.