IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140826

Docket: 50943

Registry:
Vernon

Between:

Erika Bariesheff

Plaintiff

And

Davis Bennett and
Jenise Bennett

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, on April 29, 2011, was a busy, active, and healthy
18-year-old sitting as the front seat passenger in a 1970 Volkswagen Beetle,
when the defendant, in a 2003 Ford Explorer, ran into the front left-hand side
of her vehicle. Liability has been admitted. The plaintiff claims she received
two injuries from the accident:  she fractured five of her left lower ribs,
more particularly the 8th to the 12th rib of the left chest wall, for which the
defendant has accepted responsibility. The second alleged injury of consequence
was to her lower back at L4/5 and L5/S1. The defendant submits that this latter
injury was not caused by the accident.

BACKGROUND

[2]            
The plaintiff suffered intense pain to the left side of her body immediately
after the accident. She was taken to hospital, underwent a CAT scan test and
was discharged.

[3]            
Her pain was to the lower left side of her body and breathing was
difficult. She slept in the basement for the first two or three nights as the
pain prevented her from climbing the stairs. Over the next few weeks, pain
remained in her lower left-side ribs.

[4]            
On May 9, 2011, she saw her family doctor, Dr. Mandreck, who
suspected that the plaintiff had sustained fractures of the 8th to 12th ribs on
the left side, and told the plaintiff not to play contact sports for the next
six weeks.

[5]            
The plaintiff was at the end of her last year of high-school and was
forced to miss class. Over the next three to four weeks she spent the majority
of time flat on her back on the downstairs couch. She struggled with sleeping
as any movement would bring a sharp pain to her chest area. She did not do any
driving for the first month, but she returned to school in early June.

[6]            
On June 8, 2011, she saw Dr. Mandreck again, who found that she was
tender over the T-spine from T7 to T10 and noted:  “this is not very severe”. She
was also still tender over the 8th to 12th rib. Dr. Mandreck anticipated
that by July 11 she would be able to return to her usual workload and
anticipated that it would be six months before the ribs were fully healed.

[7]            
On June 20 the plaintiff participated in some of the graduation
ceremonies but could not participate in others due to her injuries, such as
going paint-balling. When she did participate it was painful. She would take painkillers,
in the form of Tylenol 3, throughout the day.

[8]            
Prior to the accident the plaintiff worked after school cleaning a
dental clinic. She worked six hours per week and earned $11/hour. She said that
she did not work on May 5 due to her injuries. Her mother, Sandy Bariesheff,
said that she worked two shifts for her daughter after the accident and that on
one occasion her daughter came and did some cleaning, but not the heavy work. The
plaintiff said she has not been paid to work at the clinic since the accident.

[9]            
The plaintiff commenced work in a café at Davison Orchards in the latter
part of July 2011. She continued to have pain in her ribs and lower back. When
she went home at the end of the day her ribs and back would be sore and she
would take Advil. The dominant difficulty she was having was with pain in her
ribs. She continued to work at the café through October 2011, about two shifts
per week, while she took two classes at Okanagan College; however, her back
would bother her at school and she would take Advil when she got home. In
October 2011, she attempted to play volleyball but her ribs hurt when she
served and spiked the ball and she continued to have ongoing rib pain.

[10]        
In late 2011 the plaintiff did volunteer work at the Vernon Jubilee
Hospital. She found that the task of sitting on plastic chairs folding towels aggravated
her back. In early 2012 she took one class, Physics 12, and, in February 2012,
she obtained a job at Gilbert Parts Depot as a delivery person. The plaintiff
claimed that she took the job in part to overcome her fear of driving which
developed as a result of the accident.

[11]        
The plaintiff claimed that the driving job created additional pain in
her back, and on February 28, 2012, she returned to Dr. Mandreck and his
notes said:

She started having pain in the right paraspinal from medial
scapula to her T11 area of her back. She does not think that it is related to
the work she does.

MVA – hx in April 2011 when she broke some ribs. She still
gets pain in her left lower anterior ribs. The day after a yoga class though
she is still sore in the left lower anterior chest wall. She might be
compensating — shifty [sic] her wt to the right side to prevent left chest
wall pain.

She used Advil and tolerated it
well. She was given Celebrex and Lyrica by walking [sic] clinic doctors for both
of those gave her side effects.

[12]        
Under “Impression” the doctor states:  “Right paraspinal muscle strain
from approximately T4 to T11 on the right side.”

[13]        
In April 2012, she attended physiotherapy on the recommendation of Dr. Mandreck,
and continued to attend until September 2012. The treatments were focussed on
her mid and lower back. At the end of the physiotherapy treatments she stated
that her pain had decreased but she stopped attending after her physiotherapist
went out of town.

[14]        
In May 2012, she returned to Davison Orchards and worked in the bakery
department where her duties required making bread and cleaning. She stated that
she had back pain throughout the day and when she got home at night, and as a
result took Advil often. Her activities over the summer of 2012 included
getting back into sports like wakeboarding and volleyball but her participation
was limited, which the plaintiff claims was because of her back.

[15]        
In the fall of 2012 she enrolled in an engineering program. However,
according to the plaintiff, the prolonged sitting increased her low back
symptoms and the pain spread to both sides of her low back, leading down her
legs.

[16]        
On January 10, 2013, she returned to Dr. Mandreck, his notes
state:  “she says that the low back pain is in the same general area as it was
since the MVA”. Under the heading “Complaint: Sore back” it states:  “the
longest she can go is one week without having low back pain.” Dr. Mandreck
noted with regard to the location of the pain that the “[l]ower right back pain
initially but now it is also going further up the back to the lower T-spine and
across to the left SI joint.”

[17]        
On examination on January 10, 2013, Dr. Mandreck notes:

Normal SI joint testing, normal exam of her back.

She has good range of motion of
her lumbar spine although is somewhat reduced in rotation.

His diagnosis was:

Chronic mechanical low back pain –
since the motor vehicle accident of April 2011.

He recommended more physiotherapy.

[18]        
In the summer of 2013 the plaintiff worked for the City of Vernon as a
student labourer, planting trees, digging out roots, turfing and hedge trimming.
She said that after her first day of hedge trimming the pain she felt in her
back, arms and legs was so severe that it brought her to tears. She would go
home, take medication, and rarely went out. She stated that she continued to
work because she did not want to be a financial burden on her parents.

[19]        
She continued playing volleyball over the summer of 2013, despite the
pain.

[20]        
In the fall of 2013 and the spring of 2014 the plaintiff enrolled in a
pharmacy assistant program in Kamloops. As part of that program, she was
required to complete an intravenous or “IV” portion of her practicum, which
required sitting on a hard plastic chair for long periods of time. Her arms
would be outstretched and she claimed she would have a flare up in her back and
the pain would radiate up into her right shoulder. She said her medication
consumption increased during this period.

[21]        
The plaintiff states that she currently experiences pain in her left
chest and rib area when she stretches to alleviate her back pain or when she
lays on her stomach. She says she still has difficulty sleeping, including
having some nightmares about the accident. She claims that she continues to be
a nervous driver and still has a very restrictive social life.

1)             
The Medical Evidence

[22]        
The plaintiff says that the consultation with Dr. Mandreck on
February 28, 2012 documents pain on the right side from the shoulder right down
to the base of the thoracic spine. But the doctor’s note indicates that the
pain was from her shoulder to the T11 area of the back. During the hearing I
was informed that below the T11 there is the T12 which is the bottom of the
thoracic spine; and below that, the L1 is the beginning of the lumbar spine.

[23]        
Dr. Mandreck was asked whether or not he examined the lower part of
her spine and he indicated that he may have touched the lower lumbar area over
the spine because the reported area of pain was on the mid to lower right side
of her spine. He said that, not finding any pain, he would not find that the
lower area was significant and would not make a note.

[24]        
I found Dr. Mandreck to be a very conscientious doctor who was very
forthright in his evidence. He was impartial and I accept his evidence.

[25]        
The plaintiff’s major complaint as of the date of hearing is lower back
pain at the L4/5 and L5/SI area of the spine. Both Dr. Giantomaso, the
plaintiff’s expert, and Dr. Laidlow, the defendant’s expert, agree that if
a temporal connection was to be made between this pain and the accident on
April 29, 2011, one would typically expect symptoms to appear a few days or
three days after the accident.

[26]        
Dr. Laidlaw concluded that the plaintiff’s left side anterior chest
pain was attributable to the motor vehicle accident and that her right side low
back pain was not. In reaching this conclusion he examined the clinical records
of Dr. Mandreck and the physiotherapy clinical records.

[27]        
In his report of December 9, 2013, Dr. Laidlaw states at page 10:

It would seem likely that she
did suffer a rib injury and possibly a fracture of one or more ribs with the
accident of April 29, 2011. She continues to have ongoing mild chest wall pain
relating to it. There is no indication that rib fracture resulted in any
displacement of ribs from the normal course or position, as her chest X-ray was
normal. I attribute her anterior rib pain entirely to the motor vehicle
accident.

[28]        
Dr. Laidlaw continues, at pages 12:

At the present time, the
diagnosis of her lower back condition is that of a myofascial pain syndrome of
the lumbar region. There is no sign of facet joint irritation and no sign of
any disc problem or any nerve problem. The type of accident that Erica was
involved in would be capable of causing injuries to the spine, but when that is
the case, symptoms would appear within three days from the time of the accident.
It would seem possible that if someone had a severe area of pain that they might
not notice a less severe area of pain, but there is just no mention of low back
pain until many months removed from the accident and it seems to relate to a
time when the physiotherapists were indicating that she may have strained it in
a bakery.

In this type of situation, the
only way of attributing a specific symptom to a specific cause is looking at
the documentation of that symptom over the course of time by those people who
are treating her. The absence of any documentation of low back pain until the April
23, 2012 clinic note of the Spine and Sport Physical Therapy clinic makes it
impossible for me to attribute the low back pain to the accident and rather, it
would seem probable that it relates to her work activities and prolonged
sitting involved in her studies.

[29]        
Dr. Laidlaw was also of the view that a contused rib could cause
back pain, but if so, he said he would expect the plaintiff to be sore on the
same side as the rib injury, which does not appear to be the case here.

[30]        
Dr. Giantomaso agreed with Dr. Laidlaw that symptoms would
appear within three days from the time of the accident. However, Dr. Giantomaso
states in his report under “History of Presenting Complaint”, at page 3, that the
plaintiff “relates a history of left rib pain and right low back pain temporally
related to an April 29, 2011 motor vehicle collision.” He then goes on to state
on the same page:

When she came home she realized
that she had also struck her forehead and had an abrasion on her forehead as
well as her knee and shins. However, the major issues in the next few days
after the accident were severe left chest wall pain and low back pain.

[31]        
In the same report, under “Causation”, at page 12, Dr. Giantomaso
states:

Based on available documentation,
in my opinion it is reasonable to conclude that the mechanism of action of the
motor vehicle collision of April 29, 2011 is in all probability directly
casually related to the above-noted posttraumatic soft tissue injuries.

[32]        
Though he was of the view that the left flank and torso contusion was
“resolved”, with regards to the pain in the L4/5 and L5/SI area, Dr. Giantomaso
was of the opinion that the plaintiff had achieved maximum medical improvement
and will continue to experience pain permanently in the future.

2)             
Credibility of the Plaintiff

[33]        
The defence has cross-examined the plaintiff with respect to prior
inconsistent statements found in the clinical records. The use to which
inconsistent statements found in clinical records may be put, and the important
qualifications that apply to them, is set out in the decision of N. Smith J.
in Edmonson v. Payer, 2011 BCSC 118 at paras. 29-30, which states:

[29]      Portions of clinical records that report statements
made by the plaintiff, including the plaintiff’s description of symptoms, are
therefore evidence of the fact the plaintiff made the recorded statements on
those occasions. Where the recorded statements are inconsistent with the
plaintiff’s evidence at trial, they may be used in cross-examination to impeach
the plaintiff’s credibility.

[30]      Unlike prior inconsistent statements of an ordinary
witness, which may only be used to impeach credibility, prior inconsistent
statements of a party may also be treated as admissions and accepted for the
truth of their content. However, there are important qualifications that apply
to such statements in clinical records, whichever purpose they are being used
for.

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

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

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

[34]        
The Court then went on to point out the usual difficulties in
cross-examining patients on records that were made many years ago, and the fact
that an absence of a record referencing a symptom cannot be the sole basis of
any inference about existence or non-existence of that symptom.

[35]        
Though I am mindful of the caution that must be exercised in approaching
inconsistent statements found in clinical records, the principle set out in Price
v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is also applicable in the present
circumstances. In Price, Chief Justice of the Supreme Court McEachern
(as he then was) stated as follows:

4          In Butler
v. Blaylock, decided 7th October
1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument
that a defendant is often at the mercy of a plaintiff in actions for damages
for personal injuries because complaints of pain cannot easily be disproved. I
then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true reflections
of a continuing injury.

[36]        
After his examination of the plaintiff on November 22, 2013, Dr. Giantomaso
reported that, at the time of the accident, the plaintiff was “unemployed and
looking for work”. The plaintiff admitted in cross-examination that that was
not true. She in fact was working at the dental clinic at the time. At her
examination for discovery that took place on October 9, 2013, the plaintiff stated
that after the accident she was not able to drive for three to four months. In
direct-examination she admitted that once she returned to school she was able
to drive and she returned to school on June 8, 2011.

[37]        
With regards to her appointment with Dr. Mandreck on May 9, 2011,
in direct-examination the plaintiff said that her main focus of pain at that
time was her left ribs. With respect to whether she had complained of lower
back pain at that time, her evidence was “I honestly don’t remember.” In
cross-examination she admitted that, as of May 9, 2011, the only complaints
were with regards to her left ribs. She also admitted that when seeing Dr. Mandreck
that first time, “if it didn’t hurt I didn’t tell him of my complaints”. The
plaintiff stated that on May 9, 2011, Dr. Mandreck told her to stay out of
all contact sports for six months. The clinical records, which were confirmed
by Dr. Mandreck, clearly stated:  “stay out of all contact sports for the
next six weeks”.

[38]        
In respect to telling Dr. Giantomaso that she was unemployed and
looking for work at the time of the accident, it was put to the plaintiff that
she had made that statement and knew it was untrue and she agreed. Dr. Giantomaso
also confirmed that that statement had been made.

[39]        
At the plaintiff’s examination for discovery she said she could not
drive for three to four months after the accident. When the transcript was put
to her she admitted she was asked that question but the answer was not true.

[40]        
The plaintiff’s evidence that she was flat on her back for about a month
after the accident is inconsistent with her evidence that she went to work at
the dental clinic with her mother on at least one or maybe two occasions during
that period of time.

[41]        
The most difficult aspect of the plaintiff’s evidence is the different
histories she provides with respect to the onset of low back complaints. On
November 22, 2013, she told Dr. Giantomaso, who was retained by her
counsel, that the onset of low back pain was in the few days immediately after
the accident. Less than three weeks later, after the plaintiff was examined by
the defendant’s expert Dr. Laidlow on December 9, 2013, he noted in his
report:

Erica was uncertain as to when
the lower back pain started. She believes that it seemed to become more
noticeable as the rib pain lessened. When asked to guess on when it started to
become noticeable, Erica indicated that it might have been around the end of
October after the accident.

[42]        
Yet the plaintiff also told her own treating physician, Dr. Mandreck,
that the onset was late January or early February 2012. In direct-examination
she said the onset of the lower back pain was around June 2011.

[43]        
I accept the evidence of Dr. Giantomaso and Dr. Laidlaw that
the lower back pain may not have been prominent in the early days after the
accident because of the very excruciating pain as a result of the broken ribs. However,
that does not explain the different histories she provides at different times
to different people on such a critical issue.

[44]        
Aside from the different histories she provides, the other
inconsistencies, mentioned above, are what one would call minor in nature and
individually would not be given a great deal of weight; however, collectively,
along with her varied history regarding the onset of the lower back pain, leads
me to conclude that she is not a truthful or credible witness.

3)             
Summary of Findings and Causation

[45]        
In order to receive compensation for a specific injury, the onus is on
the plaintiff to show, on the balance of probabilities, that “the defendant’s
negligence materially contributed to the occurrence of the injury” (Larwill
v. Lanham, 2003 BCCA 629 at para. 14; Athey v. Leonati, [1996]
3 S.C.R. 458 at paras. 15 and 41). With respect to the issue of causation,
I note the following statement in White v. Stonestreet, 2006 BCSC 801,
on how the Court should view temporal connections:

[74]      The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name. It
is sometimes referred to as the fallacy of post hoc ergo propter hoc: 
“after this therefore because of this.”

[75]      In searching for
causes, a temporal connection is sometimes the only thing to go on. But if a
mere temporal connection is going to form the basis for a conclusion about the
cause of an event, then it is important to examine that temporal connection
carefully. Just how close are the events in time? Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[46]        
The only evidence that the lower right back pain complained of by the
plaintiff was caused by the accident is the fact that she started to experience
that pain for the first time at some point after the accident. It is not clear
given the inconsistent evidence how soon after the accident the plaintiff
started experiencing that pain, but based on her own statements it may have
been as long as six months, in October 2011. The plaintiff was engaged in many
activities that involved either being on her feet for long hours, or long
periods of sitting, both of which may have caused back pain. I find that there
is simply not enough reliable evidence to conclude that the accident materially
contributed to the lower back pain.

[47]        
I am satisfied that Dr. Giantomaso’s opinion in respect to
causation is based on the evidence of the plaintiff as to when the lower right
side back pain commenced. However, for the reasons given above, I have not
found the plaintiff to be a credible witness, and, since I have rejected the
plaintiff’s evidence, Dr. Giantomaso’s opinion as to causation is
rejected.

[48]        
I accept the evidence of Dr. Laidlow that the lower back right side
pain was not caused by the accident on April 29, 2011.

DAMAGES

[49]        
As I have found that the lower right back pain complained of by the
plaintiff was not caused by the accident, the only damages to be assessed are
those needed to compensate the plaintiff for the injury to her left ribs.

4)             
Wage Loss and Special Damages

[50]        
I am satisfied that the wage loss from the date of the accident to the
end of June is $462 and that relates to the broken ribs. I am also satisfied
that special damages in the amount of $440 have been agreed upon and are
reasonable.

[51]        
The claim for loss of earning capacity, future care, and loss of
housekeeping capacity do not relate to the broken ribs, and were not argued for
in relation to that injury.

5)             
General Damages

[52]        
The defendant says that general damages should be in the range of
$15,000 – $20,000. It is the opinion of Dr. Laidlow that:

Presently, she still continues to
have some local tenderness to direct palpitation of costal margin on the left
side of the chest. There is no pain now experienced with rib compression and
she does not normally experience discomfort and chest while unless pressure is
put on the area.

[53]        
The evidence of Dr. Giantomaso is that the left flank torso
contusion has been “resolved”.

[54]        
The plaintiff asks for general damages in the range of $70,000, but that
is based on the injury to the lower back, which I have found was not caused by
the accident.

[55]        
The following cases provide a range of between $15,000 and $35,000 for
general damages: Sinnott v. Boggs, 2007 BCCA 267; Kapelus v. Hu,
2013 BCCA 86; Mak v. Eichel, 2008 BCSC 1102; Sun v. Sukhan, 2012
BCSC 365; Currie v. McKinnon, 2012 BCSC 698; De Abreu v. Huang,
2013 BCSC 398.

[56]        
I have taken into account the relatively young age of the plaintiff, the
fact that she missed her graduating ceremonies to a great extent, which was an
important event of her life, and that the pain, though essentially gone,
persisted for about three years and is still tender to the touch. I am
satisfied that an appropriate award for general damages is $25,000.

The
Honourable Mr. Justice F.W. Cole