IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141118

Docket: M145837

Registry:
New Westminster

Between:

Brian Hatchard

Plaintiff

And

Johan George
Sulzle

Defendant

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

Table of Contents

I.  INTRODUCTION.. 3

II.  FACTUAL BACKGROUND.. 3

A.  Medical
History Prior to the Accident 3

B.  Accident and
Subsequent Treatment 5

C.  Mr.
Hatchard’s Non-Reported Medical History. 11

i.  Medical
Treatment Following 2007 Industrial Accident 11

ii.   Robbery of
Pharmacy – August 28, 2011. 15

iii.  Mr. Hatchard
Reports he was Assaulted and Robbed – November 2, 2011. 16

iv.  Attendance at
Emergency – November 11, 2011. 17

D.  Analysis of
Dr. Desai’s report 17

III.  ANALYSIS. 19

IV.  CONCLUSION.. 21

I.        INTRODUCTION

[1]            
These reasons address a low velocity motor vehicle accident that occurred
on October 13, 2010 (the “Accident”). The vehicle driven by Brian Hatchard was
in the process of making a left turn onto the Fraser Highway at the same time
as the vehicle driven by Johan Sulzle was making a right turn onto the Fraser
Highway. The two vehicles collided side-to-side, with the impact on the
passenger side of Mr. Hatchard’s vehicle. There was minor vehicle damage.
Liability for the action has been admitted by the defendant.

[2]            
The significant issue in this case is the assessment of damages to be
awarded to Mr. Hatchard for the personal injuries he alleges he suffered. This
task is more difficult than usual because Mr. Hatchard has a history of addiction,
has abused both “street” and prescription narcotics, and has endured significant
injuries prior to the Accident. Complementing these difficulties is a lack of
timely and historical medical reporting. The decision in this case will thus require
a careful examination of Mr. Hatchard’s medical history.

[3]            
Mr. Hatchard was seriously injured in a catastrophic industrial accident
in 2007 and has not worked for any period since. He is currently serving a 2 ½
year sentence for the robbery of a pharmacy, the details of which will follow.
As a result of his prior injury and current incarceration, wage loss is not a
serious issue in this case. The lack of a working history prior to and after
the Accident is also a factor to be considered if damages for wage loss or loss
of future earning capacity are to be assessed.

[4]            
The parties entered into a document agreement which allowed for the
admission of a number of historical medical documents.

II.       FACTUAL
BACKGROUND

A.       Medical History Prior to the Accident

[5]            
Mr. Hatchard was born in August of 1985, and was 28 years old at the
date of trial. He has not completed high school.

[6]            
Before entering the workforce, Mr. Hatchard was in the throes of an
addiction to heroin. He obtained some treatment and therapy, which led him to a
level of sobriety. He related in evidence three prior jobs: one with a moving
company, and two in steel yards with two different companies. The latter jobs
in the steel yards lasted together about one year. In 2007, Mr. Hatchard’s
right foot was crushed in an industrial accident in a steel yard. A number of surgeries
were required and pain relievers were prescribed. Mr. Hatchard proceeded to
abuse his prescription painkillers by indulging in false reporting and making excuses
to his doctors about his need for additional medication. These abuses resulted
in Mr. Hatchard being overmedicated and he was eventually unable to obtain sufficient
prescription narcotics to satisfy his drug needs. This led Mr. Hatchard to rob
a pharmacy, resulting in the jail sentence which he is presently serving.

[7]            
From the College of Pharmacists of British Columbia, Patient Profile
Listing tendered into evidence (“Patient Profile Listing”), it is evident that
Mr. Hatchard was being prescribed large amounts of Oxycodone and OxyContin (both
narcotics), and Ativan (benzodiazepine used to treat anxiety disorders) on a
monthly basis well prior to the Accident. The following table sets out the
prescribed amounts of each of the foregoing drugs during the months leading up
to the Accident:

[8]            
Mr. Hatchard continued to be prescribed significant amounts of
painkillers on a monthly basis after the Accident. In April and May of 2011,
Dr. Shailesh Desai began to prescribe Mr. Hatchard 360 10 mg tablets of
Oxycodone and 180 40 mg tablets of OxyContin on a regular basis. The foregoing prescription
records make it clear, however, that the Accident did not result in any change
in the narcotic medications being prescribed for Mr. Hatchard.

B.       Accident and Subsequent Treatment

[9]            
According to Mr. Hatchard, the Accident occurred at low speed (15-20 km
per hour) and involved side-to-side movement of his body. Damage to the
vehicles was extremely limited. In photos presented by Mr. Hatchard, only a
scratched bumper could be seen, in what defence counsel referred to as “the
flora of pre-existing rust on the vehicle”. Mr. Hatchard testified that his
shoulder was hurt from the pulling of the seat belt and he was stiff and sore
immediately after impact. He further testified that his heart was pounding
after the collision, and that he was upset and in shock. Mr. Hatchard said he
heard the defendant say he was sorry, and heard the defendant’s daughter, Ms.
Russell, say that they would let ICBC handle the case. Mr. Hatchard agreed that
he said nothing to either the defendant or Ms. Russell concerning any pain or
injury he experienced at the scene.

[10]        
The defendant and Ms. Russell both testified that following the
Accident, Mr. Hatchard was speaking in an agitated manner on a cell phone (apparently
to his mother). Mr. Hatchard’s mother was not called as a witness. Ms. Russell
also testified that following the Accident, Mr. Hatchard, without explanation
or apparent reason, backed up his vehicle towards the intersection from which
both vehicles had turned. Mr. Hatchard denied backing up his vehicle after the
collision.

[11]        
Following the Accident, Mr. Hatchard attended the Langley Memorial
Hospital. He testified he felt discomfort in his neck, lower back and shoulder,
which was hurting from the seat belt. He testified he left the hospital with a
neck brace, anti-inflammatories and pain medication (Ibuprofen 60 mg).

[12]        
Examinations conducted at the hospital included a cervical spine x-ray,
which revealed “no significant bone, soft tissue, or disc space abnormality”. Mr.
Hatchard was found to have a reduced range of motion in all directions.

[13]        
The hospital records report that Mr. Hatchard walked into the Emergency
Ward at 9:19 p.m. on October 13, 2010 and was discharged at 11:45 p.m.

[14]        
Mr. Hatchard testified that the neck and back pain resolved within a few
months, but he claimed that headaches persisted.

[15]        
It is interesting to note a complaint by Mr. Hatchard to a high heart
rate after the Accident. In 2009, Mr. Hatchard regularly attended the Valley
Centre Medical Clinic in Langley complaining about heart palpations, high heart
rate and anxiety. Examinations conducted at the Valley Centre Medical Clinic
included a heart monitor study. At that time, Mr. Hatchard was diagnosed with an
anxiety disorder and a panic disorder. It is beyond doubt that Mr. Hatchard had
frequent occurrences of high heart rate in the period leading up to the Accident;
this was not a new symptom.

[16]        
After attending the Langley Memorial Hospital the day of the Accident, Mr. Hatchard
did not go to a physician for medical treatment of any kind until January 11,
2011 when he first saw Dr. Desai. Dr. Desai did not conduct a physical
examination of Mr. Hatchard at that time, and was not provided with any historical
medical information except that given to him by Mr. Hatchard. Over the next two
years, Mr. Hatchard had monthly appointments with Dr. Desai – sometimes several
per month.

[17]        
Dr. Desai prepared a medical legal report dated February 25, 2013 for
the purposes of this action. Dr. Desai’s report is difficult to clearly
understand as it relates to Mr. Hatchard’s complaints of chronic pain. The
report states “the source of his chronic pain has been due to the above mentioned
MVA and also due to the crush injury to his left leg and foot due to a work
injury in 2007.” Dr. Desai did not diagnose any particular injury caused
by any particular event at the time of the Accident.

[18]        
In addition to Dr. Desai’s report, the Court has been furnished
with Dr. Desai’s clinical records. A review of these clinical records indicates
that they do not contain detailed information about the Accident upon which Dr.
Desai could base the diagnosis of an injury to Mr. Hatchard.

[19]        
Dr. Desai stated in his medical legal report that he had seen Mr.
Hatchard “a number of times…for treatment of his injuries related to the MVA
[that occurred on October 13, 2010]”.

[20]        
The report indicates that it was not until Mr. Hatchard’s eighth
appointment on April 6, 2011 that Mr. Hatchard reported symptoms linked to the
Accident. On each of the seven prior appointments before April 6, 2011,
prescriptions for narcotic pain medication were the only subject. The report
states that Mr. Hatchard “reported ongoing symptoms from injuries due to his
MVA. He reported headaches, neck pain and right shoulder pain. He was referred
for physiotherapy. He was also prescribed further narcotic pain medication.”

[21]        
However, based on my review of all of the clinical records in this case,
particularly those of Dr. Desai, I find that Mr. Hatchard’s primary purpose in
attending on April 6 was to obtain an early refill of his prescription for OxyContin
and Oxycodone. The appointment consisted of the reporting of symptoms by
Mr. Hatchard. Dr. Desai did not record conducting a physical examination;
nor did he report observing any particular injury. I do not accept the
statement that the reported symptoms can lead to a diagnosis of a particular
injury, as no physical examination was conducted. Further, I do not accept that
narcotic medication, with the significant risks entailed, was prescribed by a
medical practitioner for these rather minor symptoms alleged to arise from the
Accident.

[22]        
Dr. Desai’s report then states that Mr. Hatchard attended his clinic for
five consecutive appointments described as being “for follow-up of his MVA
injuries and chronic pain”. This statement is not supported by Dr. Desai’s
clinical records. The records of the April 12, 2011 appointment make no
reference to the Accident and deal only with foot pain relating to the 2007 industrial
accident. The sole notes of the May 4, June 3, and June 15, 2011 appointments
relate to the prescription of OxyContin and Oxycodone and make no mention of the
Accident.

[23]        
On July 11, 2011, Mr. Hatchard again had his prescriptions for OxyContin
and Oxycodone refilled. He also complained of a rash and reported non-specific
lower thoracic spine pain. Dr. Desai queried whether this was a “compensatory
strain from MVA injuries”; however, no particular injuries were identified. Dr.
Desai ordered a thoracic spine x-ray as a diagnostic tool but completed no
diagnosis on that date. No mention of the x-ray was subsequently made in the
clinical records.

[24]        
At the following appointment on August 9, 2011, Dr. Desai renewed
Mr. Hatchard’s prescriptions for OxyContin and Oxycodone and they
discussed chronic pain management. No mention of any diagnosis or treatment of injuries
resulting from the Accident was made at that time.

[25]        
Between September 7, 2011 and November 21, 2011, Mr. Hatchard had eight appointments
with Dr. Desai. Narcotic prescriptions were renewed seven times. The areas of
bodily pain mentioned in the clinical records during this time period are foot,
heel and groin – none related to the Accident. Dr. Desai expressed increasing
concern during this period about Mr. Hatchard’s failure to comply with his
narcotic prescription dosage schedule. Mr. Hatchard was repeatedly seeking
early refills of his narcotic prescriptions. No mention of the Accident was
made during this period. Between December 12, 2011 and April 11, 2012, Mr.
Hatchard had eight more appointments with Dr. Desai. Narcotics were prescribed at
each appointment. The clinical records of these appointments make no mention of
any diagnosis or treatment of any injury related to the Accident.

[26]        
It was not until May 8, 2012, approximately 19 months after the Accident,
that Dr. Desai completed a motor vehicle accident “Follow-Up Form”. This is a
single page form which is completed by checking boxes and adding a few words.
The form notes tenderness on the left, mid-line, and right side of Mr.
Hatchard’s cervical spine. Pain and restricted range of motion are noted for
the cervical spine. The phrases “upper back pain and stiffness”, “frequent
flare-ups”, and “cause H4 as well” appear on the form. Under the heading “diagnosis
of grade” there is a checkmark designating neck/upper back as Grade II, but no
explanation of this grade diagnosis is given. Under the heading “Management”
the boxes beside “reassurance”, “exercise/mobilize”, and “physio” are checked,
and the words “further physio [none done yet]” appear below those boxes.

[27]        
There is no reference in the form to any observable physical condition
such as “spasm” or “bruising”. Pain is a reported complaint which is difficult
to independently verify. Dr. Desai makes no recommendation on this form for the
use of any prescription medication; in particular, there is no mention of narcotic
medication.

[28]        
During the next appointment on June 5, 2012, prescriptions for Oxycodone
and OxyContin were renewed and there is a note in the clinical records stating “MVA
follow-up Neck Pain/Stiffness no better”. On June 29, 2012, Mr. Hatchard’s
prescriptions were renewed, and the clinical records state “MVA Back/Neck Pain
ISQ [i.e. no change]. Recent increase neck pain [with] spasms”. On July 27,
2012, Dr. Desai noted “MVA injuries ISQ. Pain persists. Continuing exercises.” The
records for appointments on August 3 and August 8, 2012 make no mention of the Accident,
only noting that Mr. Hatchard’s Oxycodone prescriptions were renewed. On August
24, 2012, Dr. Desai refilled narcotic prescriptions and noted “Recent increase pain
from MVA. Also neck pain/stiffness.”

[29]        
The clinical records of appointments on September 4, September 18, and October
1, 2012 concern only the refilling of prescription narcotics. Records of an
appointment on October 12, 2012 state “increase neck/back [pain] recently MVA related”.
The records also state that a physical examination of Mr. Hatchard was
conducted, and that his range of motion had improved. Dr. Desai does not say
when the improvement may have occurred during the preceding two years. The
records of appointments on October 27 and November 9, 2012 only relate to
refills of OxyContin and Oxycodone. On November 23, 2012, Mr. Hatchard’s
Oxycodone prescription was renewed and the records state “MVA injuries ISQ…Pain
in neck + back. Advise re exercises + meds – affects many activities → housework/some ADL’s/recreation
+ sports”.

[30]        
In early January of 2013, Dr. Desai ended his relationship with Mr.
Hatchard as the prescription contract between them had, in Dr. Desai’s view,
been breached.

[31]        
Dr. Desai’s medical legal report outlines his opinion as follows:

Based upon my consultations with Mr. Hatchard, it is my
opinion that he has ongoing soft tissue injuries to his neck, right shoulder
and low back. He also has ongoing headaches.

Based on the facts as related to me by Mr. Hatchard, it would
appear that the MVA was the likely source of the above injuries. Although he
has chronic leg pain from a work injury, these are separate from the above
injuries. In the absence of any other events of which I am unaware, it
is reasonable to relate Mr. Hatchard’s present medical condition, as outlined
above, to the MVA.

[Emphasis added.]

[32]        
Dr. Desai’s report also states:

[Mr. Hatchard] is currently on
high doses of narcotic medications. These were initially started prior to the
MVA for his leg injury but are also used to help alleviate the MVA injuries and
the resultant chronic pain to his neck, back and head.

[33]        
One immediate difficulty with this opinion was that Mr. Hatchard was
quite firm in his cross-examination that he has never complained about
experiencing problems with or pain in his lower back. More fundamentally,
however, a review of Dr. Desai’s clinical records indicate that while Mr.
Hatchard reported symptoms of injuries related to the Accident in several
appointments, Dr. Desai never conducted a critical examination of these
symptoms. Indeed, Dr. Desai agreed that only twice during the 47 office
appointments with Mr. Hatchard (May 8, 2012 and October 12, 2012) are there any
references to actual physical examinations of Mr. Hatchard being conducted and
nowhere is any particular injury caused by the Accident identified or diagnosed.

[34]        
Dr. Desai agreed that his professional responsibilities mandate that he
record accurately in his notes the symptoms reported by his patients and the
physical symptoms he observes during patient examinations which he conducts. I
am thus satisfied that Dr. Desai’s clinical records are complete and he did not
leave out information of other examinations being conducted.

C.       Mr. Hatchard’s Non-Reported Medical
History

[35]        
As emphasized above, Dr. Desai’s opinion was subject to events of which Dr.
Desai was unaware. The underlying assumption made by Dr. Desai was that
Mr. Hatchard was diligently and accurately reporting his history to Dr.
Desai. As it happens, however, there were numerous events in Mr. Hatchard’s
medical history of which Dr. Desai was unaware.

i.        Medical Treatment Following 2007
Industrial Accident

[36]        
Dr. Desai’s records of an appointment on January 25, 2011 indicate that
Mr. Hatchard had complained of problems with ongoing pain management and
the lack of a general practitioner to assist him with pain management from the
injuries he suffered in the 2007 industrial accident. A review of the treatment
Mr. Hatchard received after that accident indicates that Dr. Desai’s report was
prepared without a full appreciation of Mr. Hatchard’s medical history.

[37]        
WorkSafeBC commissioned a number of medical opinions regarding Mr. Hatchard
after the 2007 industrial accident. In cross-examination, Dr. Desai agreed he
had not received or reviewed any files concerning Mr. Hatchard’s physical
condition compiled by WorkSafeBC, or other doctors such as Dr. Pabani or
Dr. Duytchyn, both of whom had been treating physicians of Mr. Hatchard
prior to Dr. Desai.

[38]        
I have reviewed the WorkSafeBC records in some detail, which lead to the
inescapable conclusion that Mr. Hatchard was heavily addicted to opioids and
benzodiazepine for an extended period prior to the Accident.

[39]        
In a report prepared by Dr. Trevor Newton, a physician at Langley
Memorial Hospital, dated September 10, 2007, Mr. Hatchard was diagnosed with a
chronic narcotic addiction and as having an inability to wean himself off his
addiction through a methadone withdrawal program. Dr. Newton described Mr.
Hatchard’s situation as follows:

22-year-old male trying to wean
himself through Dr. Melamed’s assistance off oxycodone. He tried methadone with
clonidine, but unfortunately lost the support of his doctor who was helping him
with this treatment. She went away and he fell off of the wagon.

[40]        
Medications prescribed by Dr. J. Melamed for Mr. Hatchard are included
in the Patient Profile Listing in September of 2007 and both methadone with
clonidine and methadone (maintenance) are included in those prescriptions. Dr.
Melamed’s clinical records are included in the document brief and demonstrate
conclusively that Mr. Hatchard was using methadone prescribed by Dr. Melamed
for the purpose of ending his addiction to narcotics.

[41]        
On March 31, 2009, Mr. Hatchard was referred to OrionHealth
Rehabilitation Assessment Centres (“OrionHealth”) to participate in a pain
management program. A report was prepared by a physiotherapist, Alan Kaplan.
The report noted that Mr. Hatchard had a number of pain complaints. While his
main complaint related to his foot, he also complained that his lower back was
“just killing” him. The report also notes that Mr. Hatchard indicated he was
experiencing left upper limb pain, and that the use of a cane was causing
significant pain in his head, elbow, and shoulder.

[42]        
Under the heading “Medication”, the report stated as follows:

[Mr. Hatchard] was asked about
medications he has previously tried. He has tried both morphine and
anti-inflammatory medication. When specifically prompted, he provided the
history that he had tried methadone as well. He said he tried methadone for a
few months. He was quite adamant that methadone was used for pain removing
properties and not for addiction. He said he did not find methadone nearly as
helpful as Oxycodone.

[43]        
On June 16, June 28, and July 15, 2010, Mr. Hatchard was seen by a
Registered Psychologist, Dr. Amritpal Shergill, for a psychological assessment.
Dr. Shergill outlined his conclusions in a Psychology Assessment Report dated
July 15, 2010. In preparation for his psychological assessment of Mr. Hatchard,
Dr. Shergill reviewed prior medical records, noting that since May 2, 2007:

[Mr. Hatchard] has continued to
present with chronic pain and pain limited function and has been primarily
reliant on high dosage of narcotic pain medications for pain management as well
as very high dosages of Ativan to manage his reported anxiety symptoms. There
appears to be a general consensus among his treating and assessing physicians
and addictions specialists that he meets the DSM-IV-TR diagnostic criteria for
Opioid Dependence/Addiction (OxyContin), Benzodiazepine Dependence/Addiction
(Ativan), and Nicotine Dependence.

[44]        
Dr. Shergill noted that during the assessment, Mr. Hatchard was “adamant
in asserting his need for narcotic prescription medications for pain control
and Ativan for anxiety management.” Dr. Shergill noted that Mr. Hatchard
expressed “strong disagreement with Dr. Rucker’s diagnostic and treatment
opinion”, and “maintained that Dr. Rucker misrepresented his opinion in his
written report to [WorkSafeBC]”. Dr. Shergill carefully recorded Mr. Hatchard’s
reports of pain under the heading “Current Psychological Functioning”, noting:

Mr. Hatchard reported
experiencing pain symptoms across his whole body. He reported experiencing
constant pain in his right lower leg, ankle, and foot which he described as a
sharp and burning pain. He rated his pain as ranging from 5 to 10, on a scale where
0 represents the absence of pain and 10 represents severe pain. He also
reported experiencing intermittent pain radiation in his right leg with
variable intensity. He said that three of his toes on his right foot are numb
which he finds to be unbearable when walking. He reported experiencing
intermittent bilateral knee pain, left more than right, which is made worse
with weight bearing. He rated his knee pain as 4 on the above scale. In
addition, he also reported experiencing constant pain in his entire back, his
left arm, shoulder and neck which he attributed to using a cane and compensating
for his right leg problems. He described his pain as unbearable and
excruciating. He said his pain is increased with walking, prolonged sitting,
and activity.

[45]        
Dr. Shergill’s report also noted that Mr. Hatchard stated he was “unable
to engage in outdoor activities such as fishing, camping, hockey, football,
etc.” In preparing his report, Dr. Shergill conducted a file review, which
included Dr. Newton’s September 9, 2007 report noting the inability to
wean Mr. Hatchard off narcotics with a methadone withdrawal program. Dr.
Shergill opined as follows:

I am in agreement with opinion
on file that Mr. Hatchard’s dependence on narcotic medications, Ativan, and
nicotine is of significant concern at this time. His benzodiazepine dependence
is likely secondary to his narcotic issues. I concur that he requires a
residential treatment program given that his own attempts, under the care of
his attending physician, at addressing his dependency and addiction concerns
have not yielded any substantive results to date. In fact, he appears to be in
a general denial at this time and continues to assert his desperate need for
ongoing narcotics and Ativan despite professional opinion on file.

[46]        
Mr. Hatchard, in his testimony, complained that Dr. Shergill’s report was
not accurate. Given the consistency of Dr. Shergill’s report with the other
reports referred to in the WorkSafeBC records, I accept that Dr. Shergill’s
report is an accurate reflection of what Mr. Hatchard told Dr. Shergill. I
reject Mr. Hatchard’s criticism of Dr. Shergill.

[47]        
Mr. Hatchard also testified that Dr. Shergill misinterpreted or
misunderstood what Mr. Hatchard told him about the use of his walking cane. As
quoted earlier, Dr. Shergill stated that Mr. Hatchard reported unbearable
and excruciating pain in his back, left arm, shoulder and neck. Mr. Hatchard
attributed this pain to the use of his cane. I note, however, that there is no
medical evidence before the Court, nor mention of medical evidence in Dr.
Shergill’s report, to support the assertion that this pain could be caused by a
cane, or that ceasing to use a cane would put an end to the pain symptoms.
Further, there is no evidence that Mr. Hatchard reported pain caused by a
walking cane to any doctor or trained medical professional; nor is there
evidence of any physical examination being conducted corresponding to
complaints from the use of a cane. While Mr. Hatchard testified concerning pain
caused by the use of a walking cane, he has no medical expertise to allow him
to convincingly link the use of a cane to the pain symptoms he attributed to
the cane.

[48]        
In August of 2010, Dr. Graham Struthers wrote a letter to Dr. Baggoo, a
foot and ankle orthopaedic surgeon, assessing Mr. Hatchard’s medical recovery
progress. Dr. Struthers noted that an addictions assessment was conducted by
Dr. Rucker on October 28, 2009, a further assessment by a pain management
program was conducted on January 14, 2010, and a psychological report was prepared
on July 15, 2010. The letter also notes that Mr. Hatchard was being followed by
his family doctor, Dr. Dutchyn, for “narcotics reliance.”

[49]        
Dr. Struthers referred Mr. Hatchard to Dr. Baggoo for an opinion on
whether any further surgery was required or whether Mr. Hatchard had reached
maximal medical recovery. Mr. Hatchard failed to attend a scheduled appointment
with Dr. Baggoo on September 22, 2011. Nevertheless, Dr. Baggoo reviewed
documents that had been supplied to him to evaluate the potential for further
surgery for soft tissue lengthening to address Complex Regional Pain Syndrome,
type 1. Dr. Baggoo noted that Mr. Hatchard had “had problems with pain medication
addiction in the past, and this [proposed surgery] would increase that
probability.” Dr. Baggoo recommended against further surgery.

ii.       Robbery of Pharmacy – August 28, 2011

[50]        
As previously mentioned, Mr. Hatchard was convicted of robbing a
pharmacy with a weapon. The robbery occurred on August 29, 2011. Mr. Hatchard was
accompanied by an accomplice, who he has steadfastly refused to name at all times.
An off-duty police officer was observing the scene and proceeded to follow the
men from the pharmacy in his personal motor vehicle. That vehicle struck
Mr. Hatchard’s left leg, throwing him to the ground. He got up and
continued to flee; eventually he was tackled by the off-duty officer and
arrested. Paramedics were called to look at his leg. Mr. Hatchard was then taken
to Surrey Memorial Hospital, where he was admitted at 7:33 p.m. Mr. Hatchard
complained of pain in both knees and had abrasions and swelling in both knees. A
number of x-rays were conducted, including to his chest, legs, and knees. Other
than the healed fractures suffered in the 2007 industrial accident, the x-rays
revealed nothing remarkable.

[51]        
At his sentencing, Mr. Hatchard was represented by W. Jessop who, among
other things, described the 2007 industrial accident resulting in the injuries to
Mr. Hatchard’s lower leg and foot. Mr. Jessop told the court that Mr. Hatchard
was being overprescribed Oxycodone, and that Mr. Hatchard had instructed him that
the doctor prescribing him Oxycodone had been suspended or had his medical
license revoked for prescribing this medication to other members of the
community. Mr. Hatchard denied giving Mr. Jessop that information.

[52]        
Mr. Jessop also stated in open court that:

Mr. Hatchard instructs me that
rather than being clipped by the off-duty officer, he was in fact run over by
the off-duty officer, both tires going over Mr. Hatchard. He was hospitalized
after that. He was in a wheelchair for some time, unable to walk, so rather– it
was a rather significant accident in that situation. And that’s – – I’m not
submitting that as a mitigating factor, but just part of the circumstances of
the offence.

[53]        
Mr. Hatchard denies describing the incident with the vehicle driven by
the off-duty officer in the way related by Mr. Jessop. These denials are a very
significant allegation of wrongdoing against his former lawyer, who, as an
officer of the court, has a duty not to mislead the court. Such a serious
allegation of wrongdoing requires a significant level of proof. Mr. Hatchard’s bald
allegation of serious wrongdoing by his counsel is supported by nothing more
than his own word, and I give his assertion in this regard no weight.

iii.      Mr.
Hatchard Reports he was Assaulted and Robbed – November 2, 2011

[54]        
Mr. Hatchard attended Surrey Memorial Hospital on November 2, 2011. According
to emergency clinical records prepared that day, Mr. Hatchard told hospital
staff he was approached by three men at approximately 10:00 a.m. that morning who
asked for his wallet. He refused to give them his wallet, and, as a result, he
was struck several times, including at least two blows to the back of his head.
He was rendered unconscious and woke up laying on the ground. He reported
dizziness for approximately 40 minutes thereafter. The emergency records
indicate that he suffered a laceration over his left eye, and experienced a
headache and a stiff neck following the attack. A CT scan of his head showed no
abnormality. Mr. Hatchard reported to hospital staff he was not taking any
medications.

[55]        
Mr. Hatchard did not report this incident to Dr. Desai. In particular, he
did not report the incident to Dr. Desai during the physical examinations conducted
in May and October of 2012.

[56]        
Counsel for Mr. Hatchard submitted that as there were no further records
of any medical examinations or treatment following the assault on November 2,
2011, “it does not appear” that any lasting injuries or aggravation of prior
injuries occurred. In my view, the lack of subsequent medical records is
insufficient evidence upon which to base such a conclusion.

iv.      Attendance at Emergency – November 11, 2011

[57]        
Mr. Hatchard attended Peace Arch Hospital on November 11, 2011 seeking a
four to seven day supply of Oxycodone tablets in 40 and 10 ml sizes, alleging
that his doctor was out of town and he had run out of medication. The medical
staff denied his request, providing instead a smaller supply of 40 ml tablets.

D.       Analysis of Dr. Desai’s report

[58]        
As submitted by counsel for Mr. Hatchard, the gaps in Mr. Hatchard’s reporting
and the lack of any expert opinion convincingly linking the Accident to any of
the alleged injuries “makes proof of causation of ongoing injuries more
difficult than usual”. It is a very difficult task to link the limited findings
recorded by Dr. Desai in May and October of 2012 with the loss of range of
motion noted in the emergency records from Langley Memorial Hospital on the
date of the Accident. At the beginning of his report, Dr. Desai states he will
accurately record the facts which support the opinions contained in his report.
The difficulty with the report, however, is that Dr. Desai does not actually
record any facts which might support any of the opinions he asserts.

[59]        
A further difficulty with Dr. Desai’s report is Mr. Hatchard’s failure
to tell Dr. Desai about his medical history in a clear fashion which might
have allowed Dr. Desai to opine on the case with greater authority.

[60]        
The following list demonstrates the breadth of Mr. Hatchard’s failure to
disclose pertinent information to Dr. Desai:

(a) 
Dr. Desai was told nothing about the nature of the Accident, such as the
speed of the vehicles involved or the damage to the vehicles involved;

(b) 
Dr. Desai was neither aware of nor given access to the WorkSafeBC file
or any emergency or other hospital records;

(c) 
Dr. Desai was not given access to the records of Dr. Pabani or Dr. Dutychyn;

(d) 
Mr. Hatchard did not report his abuse of opiates and experiences with
methadone treatment programs prior to the Accident;

(e) 
Dr. Desai was unaware of and did not have access to the extensive Patient
Profile Listing for Mr. Hatchard that detailed his extensive use of opiods and
other medications prior to and subsequent to the Accident;

(f)   
Mr. Hatchard did not tell Dr. Desai that he had reported experiencing chronic
low back pain as far back as 2005, when he had reported stiffness in his extremities
and spinal cracking and popping which was severe enough at that time to
interrupt Mr. Hatchard’s sleep;

(g) 
Dr. Desai was not made aware of the 2009 OrionHealth report dealing with
chronic pain management, where Mr. Hatchard reported that back pain was “just
killing” him.

(h) 
Dr. Desai was not made aware of the assessments by Dr. Shergill and Dr.
Saper where considerable back pain was reported by Mr. Hatchard only three
months before the Accident;

(i)   
Dr. Desai was not told of the incident where Mr. Hatchard was run over
by the off-duty police officer; and

(j)   
Dr. Desai was not told of the assault in 2011 when Mr. Hatchard endured
blows to his head which rendered him unconscious.

[61]        
Mr. Hatchard’s failure to furnish Dr. Desai with this information,
coupled with Dr. Desai’s very limited physical examinations of Mr. Hatchard
(only 2 in 47 appointments) lead to the conclusion that Dr. Desai’s report offers
very little insight into the alleged injuries suffered by Mr. Hatchard in the
Accident. Dr. Desai’s relationship with Mr. Hatchard was clearly based on the
provision of painkilling narcotic medication rather than a long-term
examination and treatment of possible injuries suffered in the Accident.
Indeed, most of the appointments were concerned only with the renewal of
prescription medication and make no mention of the Accident.

[62]        
While Dr. Desai’s report may have been prepared in good faith, due to
the circumstances in which it was prepared I find it to have little value and I
give it very little evidentiary weight. That limited weight is diminished
further by the reference in Dr. Desai’s report to a lower back injury denied by
Mr. Hatchard.

III.       ANALYSIS

[63]         
Mr. Hatchard submits the Court should award $50,000 for general
damages “for a chronic pain claim where the Plaintiff remains reasonably
functional”.

[64]         
As an alternative, Mr. Hatchard submits that the Court may accept
that the events of November 2, 2011 could have caused the findings of reduced
range of motion recorded on that date. Based on that submission, Mr. Hatchard
argued that the Accident caused a compensable injury which persisted from
October 13, 2010 to November 2, 2011, a period of 13 months. Mr. Hatchard
submits that the appropriate range of general damages for a moderate soft
tissue injury for a 13 month period would be between $15,000 and $20,000.

[65]         
Objective evidence of harm is very important in personal injury
claims. In the well-known case of Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) at 399, Chief Justice McEachern made the following sage remarks:

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 surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[66]        
Paraphrasing from Justice Brine’s reasons in Murray v. Byrd, 2008
BCSC 895 at para. 14, there is nothing by way of objective evidence of Mr.
Hatchard’s complaints of injury following the Accident, let alone convincing
evidence of any significant injury incurred in the Accident. Dr. Desai’s medical
legal report is notable for what is does not contain, as it was prepared
without knowledge of Mr. Hatchard’s background and medical history, and was
based almost exclusively on Mr. Hatchard’s own reports. Dr. Desai’s report
provides very little assistance to the Court in this case. The only persuasive
evidence of injury from the Accident is contained in the emergency records from
Langley Memorial Hospital the day of the Accident, where apart from an
observation of limited range of motion, no observable injury is noted.

[67]        
In support of his claim for damages, Mr. Hatchard relies on Durkee v.
Sherwood, 2013 BCSC 104, a motor vehicle accident case. While there are
some fleeting similarities between Durkee and the present case, most
particularly a significant preceding injury, the medical observation of the
plaintiff in Durkee after the motor vehicle accident was clear and
consistent. In Durkee, the plaintiff’s medical condition was monitored with
diligent reporting, medical examination and treatment. That level of reporting
and examination is not present in the record before this Court. Moreover, there
was no suggestion in Durkee that the court made adverse findings against
the plaintiff’s credibility, as I have in this case. The same comments are
applicable to Piper v. Hassan, 2012 BCSC 189, another case tendered by
Mr. Hatchard.

[68]        
Mr. Hatchard also presented the Court with Sharifi v. Chaklader,
2012 BCSC 685. While an issue of credibility arose in Sharifi concerning
the plaintiff’s evidence, there was a consistent body of clinical evidence upon
which the court was prepared to rely upon to assess damages.

[69]        
All three of these cases are distinguishable from the present case where
there is no body of independent, objective medical evidence which could support
an award of substantial damages.

[70]        
I conclude that Mr. Hatchard has not presented convincing evidence of
compensable injuries suffered in the Accident. In the absence of a complete and
accurate medical record, Mr. Hatchard’s claim is wholly reliant on his own
credibility and reliability. I do not find Mr. Hatchard to have been a credible
or reliable witness, and have given his evidence very little weight.
Accordingly, his claim must fail.

IV.      CONCLUSION

[71]        
For the reasons outlined above, the Court has no basis to make an award
of damages to Mr. Hatchard.

[72]        
Mr. Hatchard has furnished the Court with a paucity of objective medical
evidence to support his claim for damages for injuries incurred in the
Accident. I find that neither Mr. Hatchard’s evidence or Dr. Desai’s report
have sufficient evidentiary value to establish that Mr. Hatchard incurred the
damages claimed on a balance of probabilities.

[73]        
Mr. Hatchard’s case is dismissed.

[74]        
Order accordingly with costs to follow the event.

“Ball J.”