IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140630

Docket: 11-4867

Registry:
Victoria

Between:

Barbara Elizabeth
Riswold

Plaintiff

And

Riley Goldsmith,
Gas Link Industries Ltd.,
Michael Lawrence Riswold, and Yellowhead
Road & Bridge (North Peace) Ltd.

Defendants

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

[1]            
On December 12, 2009 the plaintiff was a passenger in her husband’s
pickup truck when it was struck by another vehicle driven by the defendant,
Riley Goldsmith.  Liability is admitted by Mr. Goldsmith and Gas Link
Industries Ltd.  The action has been discontinued against Michael Riswold and
Yellowhead Road & Bridge (North Peace) Ltd.  At the time of the accident
the plaintiff was 51 years old, leading an active life with her family and
friends and was employed.

[2]            
Immediately after the collision the plaintiff complained of right sided
neck pain and right hip pain and lower back pain.  She was taken to hospital by
ambulance where she was x-rayed and after a brief period of time was released. 
She had developed occipital headaches.

[3]            
The hip and lower back pain resolved soon after the accident but the
neck pain and occipital headaches have become chronic.

[4]            
The plaintiff has significant degenerative changes in her cervical spine
unrelated to the accident.  The defendants submit they were likely to become symptomatic
as the plaintiff ages, even if the accident had not occurred.  I will return to
this question later in these reasons.

[5]            
Before the accident, the plaintiff was employed by V.E. Brandl Ltd. as a
receptionist earning $25 per hour.  She also performed a number of other office
tasks of a clerical nature.  She remained in that employment after the accident
and in June 2010 became the safety manager.  She enjoys her work and has no
plans to seek other employment nor to consider early retirement.

[6]            
The plaintiff has two adult daughters aged 30 and 32.  Neither lives at
home.  The family is close and involved in many social occasions on a frequent
basis before the accident including those often at the plaintiff’s home as well
as camping and quadding in suitable months of the year.

[7]            
The plaintiff was a careful and energetic housekeeper as well as being a
keen gardener in the summer months.  She and her husband shared many household
tasks, even some of the heavier ones and the plaintiff testified that she had
experienced no significant physical limitations in performing them before the
accident.

[8]            
As a teenager she had suffered migraine headaches but they ceased when
she was about 18 or 19 years old and do not appear to have had any significant
lingering consequences.  In 2005 and 2006 she had what she described as sciatic
nerve pain for which she had four chiropractic treatments and again there were
no continuing consequences.  On an occasion she did not describe but which
occurred a number of years ago she injured her foot and continues to have a
needle embedded in it which apparently cannot be readily surgically removed. 
Its presence limits long distance walking.

[9]            
Immediately following the car accident and her return home from the
hospital the plaintiff either lay down or reclined in a chair.  Her neck and
head were and remain very sore.  She has pain on the right side of her skull at
the base which radiates and tingles to the top of her right ear and forms a
band of pain around the top and front of her head.  She also has pain over the
top of her shoulders.  The headaches appear to be the most troubling of her
continuing problems and their effects can be severe causing her “to see
spots”.  They change her mood making her “mad” so that she does “not want to be
around people”.  This is a sharp contrast from her previous gregarious nature. 
The headaches occur two to three times a week and are frequently prolonged in
duration.

[10]        
The plaintiff lost little time from work following the accident.  She wanted
to get back to work as soon as possible.  There is no paid sick leave available
but even apart from that consideration my conclusion is that the plaintiff is
not the sort of person who would remain away from work if she could manage to
attend.  She was away from work for the balance of December 2009 after the
accident on the 11th and worked 2 hours each day in the first week of January
2010.  She gradually increased her hours and was back to fulltime work by June
2010.

[11]        
In June 2010, the plaintiff, notwithstanding the difficulties she had
experienced in sustaining fulltime work, was promoted to safety manager.  That
job entails monitoring changes in safety requirements imposed on her employer,
creating safety programs within the company, ensuring compliance within the
company with those programs both by employees who work in the shop and those
who work in the field.  The latter work requires the plaintiff to travel to
work sites where land is being cleared by her employer to prepare it for oil
and gas drilling.  This travel often requires hours travelling over rough
roads, which the plaintiff finds difficult to manage because it aggravates her
neck pain and headaches.  She describes the latter as feeling like a
screwdriver in the back of her head.

[12]        
The plaintiff attends meetings in her employer’s shop and office often
several times a month.  They can extend over 15 minutes or as long as six
hours.  They cause her considerable discomfort because of prolonged sitting.  She
attempts to arrive early for meetings to get an advantageous seat to avoid turning
her head which causes the headaches to become worse.  About 80 to 90% of her
time is spent sitting at a desk using a telephone or computer; this too causes
discomfort.

[13]        
At the time of the accident the plaintiff was paid $25 an hour.  There was
some controversy at the trial about whether she had worked a 40 hour week prior
to the accident.  Her hours of work fluctuated.  I conclude that she usually
worked less than 40 hours per week and sometimes as little as 31 hours.  In the
immediate months after the accident, before she returned to fulltime work in
June 2010, the evidence does not permit me to calculate a loss of income to the
date of trial with precision.  I assess it at $4,600.

[14]        
There is no dispute the plaintiff was seriously injured in the
accident.  The significant controversies at the trial were the following:

a)    Does the
plaintiff have a degenerative process in her cervical spine known as diffuse idiopathic
skeletal hypertosis, referred to as DISH syndrome which at least in part explains
the neck pain and headaches?

b)    If the plaintiff
has DISH syndrome would it have become symptomatic even without the accident?

c)     Even if
the plaintiff does not have DISH syndrome, would the degenerative changes in
her cervical spine have become symptomatic without the accident?

d)    Will the
headaches which the plaintiff suffers become so debilitating that they will
lead to early retirement or to a shortening of her work hours and consequent
loss of income?

e)    What is the
extent of the plaintiff’s continuing disabilities? and

f)      Has
the plaintiff acted reasonably to mitigate her condition by engaging in an appropriate
active rehabilitation program?

[15]        
I have principally relied on the evidence of two physicians to shed
light on the answers to the controversies about the plaintiff’s medical
condition.  Dr. John-Paul Etheridge, who testified at the request of the
plaintiff, and Dr. Maryana Apel, who testified at the request of the defendants,
have provided valuable opinion evidence which has assisted me to understand the
plaintiff’s injuries and her response to them.

[16]        
Dr. Etheridge is a general practitioner engaged in interventional pain
management.  He describes the plaintiff’s current complaints as:

1.     migraine
type headaches twice a week with associated visual changes and difficulty
pronouncing words;

2.     constant
occipital pain and cervico-genic headaches;

3.     right
upper neck pain; and

4.     right
shoulder and trapezius muscle discomfort.

[17]        
The effect of these complaints is to limit severely the plaintiff’s
housekeeping, gardening and other physical activities including camping and quadding. 
They have a marked adverse effect on her physical comfort while at work.

[18]        
The plaintiff has had cervical facet joint medial branch blocks with
xylocaine injections which relieve her pain temporarily and improve her range
of motion and general functioning capacity.  Dr. Etheridge opines that
most of the plaintiff’s headaches and neck pain have their source in those
joints.  Dr. Etheridge spoke of the migraine-like headaches as an “aggravation”
but the evidence leads me to conclude the plaintiff had not suffered from actual
migraine headaches since she was a teenager.

[19]        
The medial branch nerve blocks provide pain relief for two or three
months but do not constitute a cure of the headaches originating in the
plaintiff’s cervical spine.  Dr. Etheridge opines the headaches are probably
permanent.  They have been caused by the car accident.

[20]        
Dr. Etheridge suggests the plaintiff is a candidate for a facet joint
rhizotomy which is a procedure which cauterizes the nerves that supply the
facet joints.  The procedure does not eliminate the pain but provides longer
term relief than the nerve blocking.  Unlike the nerve blocks, the cost of
which is covered by the plaintiff’s medical services plan, a rhizotomy is
available only through a private clinic.  The cost would be $3,000 to $5,000
for each procedure.  They can be repeated up to 10 times in most patients’
lifetime.  I doubt the plaintiff will elect to undergo this treatment.  Dr. Etheridge
also suggests more conservative treatment by means of cervical facet joint
prolotherapy which would entail dextrose injections into the joint capsule. 
Their cost is about $200 to $300 each for up to 10 treatments in the
plaintiff’s lifetime.

[21]        
The plaintiff is also recommended by Dr. Etheridge to engage in an
active rehabilitation program aimed at stretching and strengthening the muscle
groups in her neck and between her shoulder blades.  Dr. Etheridge
recommends the plaintiff increase her exercise slowly and steadily to improve
her functioning.  He believes function will improve with exercise but cautions
that it is not likely to lead to long term pain reduction.

[22]        
Dr. Etheridge recommends a number of medications.  During pain flare-ups
he recommends the use of Vimovo at a cost of about $60 per month.  He also
recommends pain blockers which may need to be taken several times each day as
needed at a cost of between $240 and $370 each month.  Cymbalta, an
antidepressant, should be used to reduce what he described as “central
sensitization”.  The cost of Cymbalta is about $120 each month.  Lyrica may be
used for the same purpose.  Dr. Etheridge does not recommend all of these
medications to be used simultaneously.

[23]        
Dr. Etheridge describes the plaintiff as a stoic, a characterization
with which I agree.  He predicts she will likely continue to work
notwithstanding her pain but also predicts there is a substantial possibility
she will need to reduce her hours in the future and modify the activities which
exacerbate her pain. He suggests that despite her stoicism there is a
substantial possibility she will need to retire early as the effects of her
injuries become more pronounced.

[24]        
Dr. Etheridge does not accept Dr. Apel’s diagnosis of DISH syndrome
which he concludes has been ruled out by a CT scan.  In his opinion the
plaintiff has severe age-related degenerative changes in her cervical spine
which he testified is widely prevalent in the general population.  A large
majority of those persons with such degenerative changes do not experience
symptoms.  It is the accident, in Dr. Etheridge’s opinion, which has
caused the degenerative changes to become symptomatic.

[25]        
Dr. Apel saw the plaintiff on January 8, 2014, at the request of the
defendants for the purpose of providing a medical legal opinion.  Dr. Apel
describes the plaintiff as managing pain and sleep disruption by the daily use of
medication.  The plaintiff has had seven months of physiotherapy as well as
some chiropractic treatment and continues to use massage therapy. 
Dr. Apel describes the plaintiff’s chief complaints as occipital headaches
“progressing to a band like sensation” and which are aggravated by physical activity. 
The headaches cause a tingling and burning sensation in the plaintiff’s right
temple occasionally affecting the top of her head.  The headaches are
apparently alleviated by lying down so that she “does not need to support her
head”.  When severe, the headaches cause “difficulties with memory and train of
thought”.

[26]        
Dr. Apel made “positive findings “in the plaintiff’s neck and shoulders
with the “worst trigger point” located in muscles on the right side of the
plaintiff’s neck.  X-rays have revealed “advanced degenerative changes at C5-C7”
which Dr. Apel diagnosed as DISH syndrome.  Dr. Apel opines the
condition pre-existed the accident and is also found in the plaintiff’s lumbar
spine.  It is a condition which “should not be regarded as a local spine
condition but rather as a systemic disease”.

[27]        
Dr. Apel describes the plaintiff as presenting with “decreased
conditioning, poor fitness, state of overweight and, apparent, metabolic
syndrome including hypertension of unknown control”.  Dr. Apel’s prognosis
for the plaintiff is guarded with the DISH syndrome and underlying degenerative
changes each playing significant roles.

[28]        
Dr. Apel has a number of suggestions for treatment which in her opinion
can lead to the plaintiff’s condition becoming “dramatically better”.  She
suggests nerve blocking injections, ergonomic modifications for the plaintiff’s
home, a cervical collar, and “special attention” to neck strengthening through
a consistent and regular exercise program related to the plaintiff’s neck and
shoulder muscles.  Dr. Apel places “paramount importance” on this
recommended exercise program.

[29]        
The plaintiff described her exercise program recommended to her by an
unnamed doctor as stretching lasting up to 15 seconds repeated two or three
times each day.  She has no equipment available for exercise “or for symptoms
control” except a soft neck cushion used when driving.

[30]        
I have concluded that Dr. Etheridge is probably correct that the
plaintiff has age-related degenerative changes in her cervical spine which
would probably not have limited her physical activities before at least
retirement age if the accident had not happened.

[31]        
I am not persuaded the plaintiff’s condition has improved significantly over
time and I agree she has a guarded prognosis and can expect to experience
headaches and shoulder pain for the indefinite future.

[32]        
The plaintiff had an income from employment in 2013 of $69,125.  She is
now 55 years of age and in the normal course would have 10 further years of
employment if she chose to do so.  I am required to assess the future loss of
income  and I do so applying the considerations in Rosvold v. Dunlop,
2001 BCCA 1:

[10] The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No.
2128 (S.C.) (Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (Q.L.).
Guidance as to what factors may be relevant can be found in Parypa v.
Wickware, supra, at para. 31; Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

[1] whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less
marketable or attractive as an employee to potential employers;

[3] whether the plaintiff has lost
the ability to take advantage of all job opportunities which might otherwise
have been open to him, had he not been injured; and

[4] whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[11] The task of the court is to
assess damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset
has been established, that impairment must be valued. The valuation may involve
a comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry: Ryder (Guardian ad litem
of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware,
supra. The overall fairness and reasonableness of the award must be
considered taking into account all the evidence.

[33]        
The plaintiff has always done well at her present employment and that
has not changed since the accident.  Her performance reviews are consistently
good.  She pushes herself to manage her job at a high level.  However, she is
concerned that demands will be made in the future for an increased number of
site visits which will require her to travel considerable distances over
difficult terrain thus aggravating her pain.  There are indications that
although her employer is supportive, site visits will be required in increasing
numbers.

[34]        
But for the accident, it is probable the plaintiff would have worked
throughout the years from the trial until her husband retired.  Her husband is
about a year older than she is.  He has no immediate retirement plans but I anticipate
that but for the accident he would have retired before the plaintiff reached
age 65 and the plaintiff would have retired shortly thereafter.

[35]        
An assessment of damages for a future loss is not a calculation.  It is
my view the plaintiff, because she is not only a stoic but also enjoys her
work, will lose about three years out of the coming 9 possible years of
employment until age 64.  The lost three years I find will be made up both of
reduced hours and early retirement.  I expect the plaintiff’s hourly wage will
increase somewhat in the future.  I award the plaintiff $150,000 for the
present value of income lost in the future.

[36]        
The plaintiff was much involved in the work of maintaining the family
home.  The evidence indicates $75 each week is appropriate to replace her
services.  I award $16,200 to the date of trial.  I accept those services ought
to be replaced from the date of trial until the plaintiff is 75 years of age at
which time she will likely have ceased to perform those services herself in any
event.  The present value of those services I assess at $40,000.

[37]        
The plaintiff claims for the cost of care in the future on the basis
that she will need to make some expenditures to the age of 62 when she will
have reduced her hours of work and then half of the costs for a further 10
years.  No rationale is given for age 72 but in the absence of a claim for a
greater amount I will accept that age as a reasonable cut off.

[38]        
The claims made for future care are as follows:

a)    Annual cost of
medication reduced to a present value to age 62, $10,600.

b)    Airfare to
travel to Kelowna every three months to attend upon Dr. Etheridge for
injections to age 62 at a present value $12,400.  I do not expect the plaintiff
to attend that often.

c)     Massage
therapy every two weeks at a cost each time of $190 to age 62 with a present
value of $12,150.  With a better exercise program the need for this therapy
should taper off.

Total claimed to age 62 is $35,150.

d)    The further cost
to age 72 reduced to a present value claimed is $14,372.

Total cost of future care to age 72 I assess at $37,000.

[39]        
The plaintiff claims $75,000 for general damages for pain and suffering
and loss of enjoyment of life.  She relies on: Guthrie v. Narayan, 2012
BCSC 734; Clark v. Kouba, 2012 BCSC 1607; and Clark v. Kouba,
2014 BCCA 50.

[40]        
The defendants submit the award under this head of damages ought to be
considerably lower and rely on: Connolly v. Cowie, 2012 BCSC 242; Antonishak
v. Piebenga, 2012 BCSC 745; Nokleby v. Fiddick, 2012 BCSC 1463; Dakin
v. Roth, 2013 BCSC 8; Ladret v. Stephens, 2013 BCSC 1999; Kim v.
Morier, 2014 BCCA 63; Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178;
Mezo v. Malcolm, 2013 BCSC 1793; and Lawson v. Kirk, 2014 BCSC
461.

[41]        
The plaintiff has suffered a significant adverse change in her life as a
result of the accident.  She lives with constant pain and those activities
which she once enjoyed such as camping, quadding, gardening and a multitude of
family social activities have been lost or markedly diminished.  Her enjoyment
of her work which has been a principal source of enjoyment has been impaired.  The
plaintiff’s claim of $75,000 for damages for pain and suffering, and loss of
enjoyment of life in my view is reasonable.

[42]        
There is no significant controversy over special damages and I award
$9,800.

Mitigation of Damages

[43]        
The medical evidence is that the plaintiff needs to engage in a
physically active rehabilitation program.  It is understandable that with
constant pain she has been reluctant to do so but there is no indication that appropriate
physical activity poses any danger to her and on the contrary will be
beneficial.  It has been four and a half years since the accident during which time
the plaintiff has largely undergone passive treatment and undertaken very
minimal exercise.  It is appropriate for the defendants to argue the plaintiff
has not taken reasonable steps to assist in her own rehabilitation.

Summary of Damages

[44]        
From the above total I deduct 10% for the plaintiff’s failure to
mitigate.  My award is $299,000.  Unless there are matters of which I am
unaware the plaintiff is entitled to costs on Scale B.

“Affleck J.”