IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150420

Docket: M134876

Registry:
Vancouver

Between:

Joann
Miolla

Plaintiff

And

Neil
Edward Fick

Defendant

Before:
The Honourable Mr. Justice Myers

Reasons for Judgment

[1]      This case is an assessment of damages for motor a
vehicle accident with respect to which the defendant has admitted liability. 
Although the accident was minor in nature, the plaintiff, Ms. Miolla,
claims it caused a balance problem, which makes her unable to work.

I.                
The plaintiff

[2]      The plaintiff is 55 years old.  She graduated high
school and has no further education.

[3]      After graduation, she worked for two years as a
receptionist for a travel agency.  She then developed agoraphobia and an eating
disorder.  She became housebound and lived with her mother who looked after her
for 17 years.  She gave up driving.  Ms. Miolla said she was on a
government disability allowance.

[4]      When Ms. Miolla was in her mid-40s her mother
became ill and their roles reversed:  Ms. Miolla became her mother’s
caretaker.  She said that forced her to get out.  She got a part-time job at
Zellers that ended after about a year when they wanted her to work a late
shift, which she did not want to do because she was fearful of taking the bus
at night.

[5]      In March 2005, Ms. Miolla began to work at
Costco in Langley as a merchandiser.  That job entailed unpacking merchandise
and putting it on the warehouse-store shelves.  She drove to work, her
boyfriend, Charlie Hart, having re-taught her how to drive.

[6]      In 2006 Ms. Miolla had complaints of
vertigo for which she was treated.  She took her vacation time to deal with it
and did not miss work hours.

[7]      Ms. Miolla continued to live with her
mother until 2010 when her mother died.  She now lives in a three-level
townhome.

II.              
The accident

[8]      The accident occurred on Saturday, January 5,
2013.  The plaintiff was driving her Mazda Protégé and stopped at a red light
on Westwood Street in Port Coquitlam.  Mr. Hart was in the passenger seat.
The defendant, Mr. Fick, was driving a Chevrolet Colorado pickup truck.  He
came to a stop behind Ms. Miolla.  He estimated the distance between them
to be about five feet.  His foot slipped off the brake pedal and the car moved
ahead hitting Ms. Miolla’s car.

[9]      Ms. Miolla said her head moved and back
and forth hitting the headrest.  She did not realise her car had been hit and
asked Mr. Hart whether there had been a small earthquake.  Mr. Hart
said he felt a jolt and their car moved forward a bit.

[10]    Ms. Miolla got out of the car and Mr. Hart
drove it out of the way of traffic.

III.            
Ms. Miolla after the accident

[11]    Ms. Miolla’s immediate feeling was being "shaken
up".  Mr. Fick also noted she appeared to be shook up and asked her
if she was alright.  Later in the day Mr. Hart took Ms. Miolla to a
walk-in clinic but they refused to see her because her she had an "ICBC
injury".

[12]    Ms. Miolla had five days of work scheduled
following the accident (starting Sunday) followed by a 10-day vacation period.  She
worked for the five days.

[13]    The Monday after the accident Ms. Miolla
went to her family doctor, Dr. Sclater on January 7, 2013.  She complained
of head and neck aches, shoulder stiffness and being lightheaded and dizzy.

[14]    During the remaining three days of work, Ms. Miolla
said she started to feel dizzier and booked another appointment with Dr. Sclater.
By the time she got to see him on January 16, 2013 she said she was severely
dizzy and frightened.  She did not return to work.

[15]    In February 2013, at Dr. Sclater’s
suggestion, Ms. Miolla went for vestibular physiotherapy.  This is
physiotherapy meant to assist with balance issues.

[16]    The plaintiff testified she was virtually
incapacitated for several months after the accident.  She was very sick, weak,
nauseated and frightened.  She held onto furniture and walls to get around her
home.  She was forced to reside on just one floor of her three-story townhouse
as stairs triggered her vertigo.  She ate crackers and drank ginger ale.  She
relied heavily on Mr. Hart to stay with her.  He helped with meals and
driving.  He bought trekking poles to help her get around in her home.

[17]    Ms. Miolla continued with her
physiotherapy.  She said that after about a year her symptoms reached a
plateau, although with some setbacks.  She was in a low mood, irritable and
frustrated at her isolation.

[18]    Ms. Miolla says that currently her day revolves
around controlling her symptoms.  When she wakes up she feels dizzy and
fatigued no matter how long she has slept.  She holds the railing when she uses
the stairs and the looking down makes her dizzy.

[19]    She says that busy places make her dizzy because
of the people milling about.  She cannot read at the same speed and use of a
computer screen makes her dizzy.  Looking up and down make her dizzy.

[20]    Ms. Miolla was told to be as active as
possible and started going for daily walks as a means to both improve her
condition and avoid her from regressing.  The defendant had a group of
detectives do surveillance of Ms. Miolla on three days, February 21,
October 9 and October 11, 2014.  Collectively the surveillances show Ms. Miolla:

·      
going for walks of up to 1 ½ hours at a reasonable pace with only
a brief rest;

·      
speaking on a telephone for 45 as she walks;

·      
going into stores such as Save-On-Foods and Kin’s Farm Market;

·      
going up a short set of stairs without apparent difficulty.

[21]    However, as pointed out by Ms. Miolla’s
counsel:

·      
Ms. Miolla is doing what she was told to do by her health
care professionals;

·      
The defendant’s video has her in sight for less than an hour of
actual walking which poses the question of how much rest or balance
difficulties were present when she was off camera;

·      
There is virtually no video following her directly and that which
does arguably demonstrates a subtle tendency to veer; and

·      
The video which does show her walking demonstrates how she is
looking down much of the time.  Dr. Craig noted neck tenderness which he
attributed to this.

[22]    Although Ms. Miolla was "cross-trained"
at Costco for work in different departments but she says she cannot work at
them.  The bakery department requires lifting of heavy trays and looking up and
down.  Working in accounting requires work with computer spreadsheets.  The "greeters"
at the door do not do that exclusively – they are required to walk the rows of
shelves and inspect them for stability; all of these tasks require looking up
and down and being in crowded places.

[23]    I will return to her ability to find work when I
deal with her wage loss claim.

IV.           
Ms. Miolla’s credibility

[24]    There are issues with respect to causation and
damages which I will deal with.  Before doing so, I want to address the defendant’s
allegation that Ms. Miolla is a "malingerer", because it will
put those issues in context.

[25]    I do not conclude that Ms. Miolla is
intentionally exaggerating her condition or attempting to avoid work. I accept
her evidence that she loved her work at Costco.  She did not miss any work days
at Costco.  In fact, in 2010 she suffered a rotator cuff tear when working at
Costco.  She did not take time off work and was put on lighter duty.

[26]    Ms. Mioalla worked as much overtime as she
could get.  Her supervisors who were called as witnesses verified her evidence
on that, and called her a delight to work with.  She gave them permission to
call her at any hour of the night if they needed someone to work.  They did so
on several occasions and she did go into work.

[27]    Ms. Miolla described how anxious she was to
continue work at Costco for as long as possible – she said her goal was to work
there until she was 67 or 70 – in order to make for lost time when she was
housebound.

[28]    All of the above is inconsistent with
malingering and I do not think that Ms. Miolla is intentionally avoiding
work.  The real issue is whether the accident caused a balance problem and
whether Ms. Miolla might be overreacting to her dizziness in terms of her
ability to work.

V.             
The medical evidence

[29]    Ms. Miolla was treated by an otolaryngologist,
or ear nose and throat specialist, Dr. Miller.  She was also tested
extensively by Dr. Longridge who specialises in otology – a subspecialty
of otolaryngology focussing on balance disorders.

[30]    Dr. Longridge concluded that Ms. Miolla
suffered from vestibular mismatch.  In his direct evidence he briefly described
that as disorder where information from the ear and eyes regarding movement
fail to gel, which creates a confusion that in turn creates imbalance, nausea,
light-headedness and vertigo.  A longer explanation was provided in his report:

Visual Vestibular Mismatch refers
to a condition where the patient develops symptoms which are distressing and
bothersome. Anyone who has been sitting at a traffic light on an incline and
suddenly notices that they are falling back down the incline and rapidly slams
their foot on the brake has experienced a situation where a car next to them is
in fact moving slowly forward and they misinterpret this and think that they
are going backwards. This is a visual vestibular mismatch situation. The
individual has had an awareness of visual information misinterpreted into the
feeling that they are moving. This is a physiological visual vestibular
mismatch. The condition of visual vestibular mismatch which is abnormal or
pathological is of similar distressing symptoms induced by a situation where
normal people do not get symptoms. Where there is a lot of movement around the
individual this causes confusion, distress and dizzy symptoms. The reason for
this dizzy symptomatology is that the information from the balance system of
the ear, as the patient is moving, does not synchronize or mesh with the
information that the patient receives from their own vision resulting in
awareness that there is a difference between the two and a sensation of
dizziness is produced. Particular situations where this occurs are ones with a
lot of movement. Characteristically rippling water and also the standard
situation of a lot of movement in a supermarket or shopping mall produces
awareness of dizziness. Complaints of dizziness caused by checkered floors,
busy carpets or patterned tiles is seen. Dislike of elevators and escalators,
which caused dizziness is common. Busy television programs, such as car chases
and hockey games cause dizziness. Scrolling a computer causes dizziness. The
bright light in these circumstances is frequently complained of. People around
the patient are moving relatively indiscriminately and this results in a dizzy
sensation.

[31]    He concluded that this was caused by the
accident:

Onset of dizziness subsequent to
the accident means, in my opinion, that the accident is the [probable] cause.
There are measured abnormalities on balance tests. She has an abnormal result
on Computerized Dynamic Posturography (CDP), compatible with a disturbance
involving the balance system of the inner ear. This is an objective test. She
has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with
an abnormality on the left side. This is an objective test.
OVEMP measure the macula of the utricle, one of the gravity detecting organs of
the inner ear.

[32]    Dr. Longridge noted Ms. Miolla’s prior
vertigo problem:

The patient has complaints of her
acute vertigo post accident, compatible with a disturbance of the balance
system and based on the presence of complaints pre accident and the immediate
onset very shortly after the accident of acute vertigo, means in my opinion the
accident has instigated the acute vertigo, probably in a damaged system due to
previous episodes of inner ear dizziness as recorded by her otolaryngologists.

[33]    Dr. Longridge recommended ongoing
vestibular physiotherapy.  He said that if the treatments cease, the patient
will, to a certain extent, relapse.

[34]    He concluded:

This patient has a disturbance of her balance system. As she
ages it is probable that she is more likely to run into difficulties with
balance and unsteadiness than someone who has not had the insult to her balance
system which she has incurred. Potentially there is an increased likelihood of
fall and fracture and for this reason osteoporosis management has to be
optimized.

This patient’s balance system has been injured and should she
incur a further injury she would be more vulnerable to damage than somebody who
had not had a previous injury.

My experience with dizziness and
imbalance is that if it is present for two years, in my opinion, it is likely
to be present on a long-term, permanent basis.

[35]    The defendant adduced a report prepared by Dr. David.
He is an otolaryngologist.  His practice focusses on inner ear disorders
causing dizziness, hearing loss and tinnitus.  He conducted an independent
medical examination of Ms. Miolla and reviewed Dr. Longridge’s report
and test results and the other relevant records.

[36]    He noted the following objective results:

3. Objective Test Results:

3.1 Audiometry:
(hearing test including subjective responses and objective measures).

3.2 Summary: 
Normal.

3.3 Otoacoustic
Emissions (measure of cochlear outer hair cell function).

3.4 Summary:
Normal.

3.5 Bithermal
video ENG (gold standard test of inner ear balance function).

3.6 Summary:
Indeterminate, Ms. J. Miolla was unable to maintain eye opening
sufficient to measure eye movements.

3.7 Cervical
Vestibular Evoked Myogenic Potential (test of inner ear gravity sensor:
saccular component of otolith function).

3.8 Summary:
Normal.

3.9 Ocular
Vestibular Evoked Myogenic Potential (test of inner ear gravity and
horizontal acceleration sensor: utricle portion of otolith function).

3.10 Summary: Indeterminate,
insufficient replicability to meet diagnostic criteria.

[37]    Dr. David said that the history of what Ms. Miolla
described to him may or may not be typical for post-traumatic inner ear
dysfunction.  He noted that:

10.1     There is self report of post MVA
dramatic symptoms suggestive of vestibular dysfunction. However, this is not
corroborated by frequent family practitioner physical
examination results. There are aphysiologic findings suggested on CDP testing,
and indeterminate findings on other tests of balance. Ms. J. Miolla had
essentially normal physical examination at IME today. She does not fulfill
clinical or audiologic criteria of symptoms and signs of superior semircular
canal dehiscence syndrome. She has history of pre MVA inner ear balance
dysfunction in 2006.

[38]    His conclusion was that "there was
insufficient medical evidence of post-traumatic inner ear dysfunction."

[39]    Dr. Longridge filed a rebuttal report addressing
Dr. David’s critiques of his test interpretations.  In some instances he
pointed out Dr. David was relying on literature that had been superseded.

[40]    In cross-examination, Dr. David acknowledged
that the interpretation of the tests performed by Dr. Longridge involved "real
subtleties".  He said:

The normal areas are shaded. Putting
it all together and seeing if it makes sense is an area that requires
experience and expertise.  Relative strengths and internal consistencies are
important

[41]    One of the bases for Dr. David’s
conclusions was based on what he said was Ms. Miolla having suffered
tinnitus.  He said:

The description of tinnitus in
its asymmetric, intermittent character is atypical for post traumatic inner ear
injury.  Post traumatic inner ear injury giving rise to tinnitus is most
commonly associated with demonstrable new onset hearing loss. Ms. J. Miolla’s
audiometry is documented to be normal.

However, Ms. Miolla never complained about tinnitus
nor was it mentioned in any of the medical records or reports.  In fact Dr. Longridge
pointed out twice in his initial report that Ms. Miolla never had tinnitus.
Dr. David was unable to explain where his reference to tinnitus came
from.  This must undercut the weight given to his report.

[42]    Based on this, I accept Dr. Longridge’s
report and conclusion.

VI.           
Damages

A.             
Past and Future Wage Loss

[43]    As I said above, Ms. Miolla worked for five
days at Costco after the accident and has not returned to work since.  I have
explained above why she says she cannot do other work at Costco.  The witnesses
from Costco stated that they can accommodate an employee’s gradual return to
work by rotating their work or keeping someone on light duty but ultimately an
employee is expected to fit into one of the available positions; in other words,
a special job position will not be created.

[44]    Ms. Miolla was seen by a physical medicine
specialist, Dr. William Craig.  In his prognosis section, he stated:

From a musculoskeletal your perspective [sic], she has likely
reached her point of maximal medical improvement. From a functional
perspective, her dizziness is her primary physically limiting symptom. If not
for this dizziness, she would likely have been able to return to her job at
Costco. As long as she continues to have significant issues with dizziness and
her balance, she would likely have difficulty in doing any job where she has to
get up and move around frequently, or be on her feet for longer periods of
time. She would also have difficulties with doing any job where there is a risk
of falls or any heavy lifting or carrying. [p. 9]

I would recommend a vocational assessment to determine
whether there are any other appropriate jobs for her. She would be capable of
doing a job where she can primarily sit. I would defer to an otolaryngologist
or neurologist as to how working on a computer would affect her vertigo.

She should be capable of doing
all of her household tasks with appropriate adaptations and pacing. She would
be cap[able of driving provided she is not having an acute vertiginous episode.

[45]    Apart from noting some wobbliness when standing
and a slow and unsteady walk, this was based on Ms. Miolla’s report of her
symptoms.

[46]    An occupational therapist, Mr. Padvaiskas,
did an assessment of Ms. Miolla in November 2014.  He concluded that Ms. Miolla
could not do full-time work at the time because her nausea and dizziness were
disabling.  Once again, this is primarily based on Ms. Miolla’s
self-reporting.

[47]    Finally, there is the report and evidence of Dr. Powers,
a vocational expert with a doctorate in psychology.  He concluded that in light
of Ms. Miolla’s medical restrictions, functional limitations and limited
education she would have great difficulty getting back into the job market, including
returning to Costco, even on a part-time basis.

[48]    I have said above that I accept the evidence of Dr. Longridge
with respect to the accident causing Ms. Miolla to have a vestibular
mismatch in turn causing nausea, dizziness and the other symptoms associated
with that injury which he and Ms. Miolla described.  Nevertheless, the
plaintiff’s expert evidence to the effect that Ms. Miolla is not
employable at all in the future is based in large measure on her self-reporting.
However, the video surveillance does show she can be on her feet, walk and be
in stores.  The experts did not watch the video.

[49]    I am not convinced that Ms. Miolla has
totally lost the ability to work at any job, even part time.  I note she
did not try a gradual return to work to Costco.  While I do not think Ms. Miolla
is untruthful or, as submitted by the defendant, a malingerer, it might be that
she is simply too timid to try to push herself back to the work force.

[50]    Both sides have unfortunately presented their
cases on an all or nothing basis.  That makes the court’s function more
difficult.  Taking into account the comments I have made above and the
plaintiff’s age and education, I conclude that Ms. Miolla’s capacity to
work in the future has been reduced by 70% as a result of the accident.

[51]    For past income loss, I allow her full loss for
one year following the date of the accident on the basis she required that time
to reach the stage where she could reasonably attempt to go back to work.  From
then to the date of the trial I allow her 70% of her calculated loss to the
date of the trial.

[52]    The defendant did not challenge the calculations
used by the plaintiff’s economist, Mr. Carson with respect to past and
future wage loss.  I will leave it to counsel to make the necessary
calculations.

B.             
Cost of Future Care

[53]    Louise Craig prepared a cost of future care
report.  It is up to the plaintiff to demonstrate that the items claimed have a
medical justification.

[54]    I partially agree with the defendant that the
plaintiff has not met this onus with respect to several items.  The items
claimed, together with my rulings are:

a. Vocational assessment:  the plaintiff has already done a vocational
assessment.  Another one is not necessary.

b. Occupational Therapst:  Dr. William Craig recommended that an OT assess Ms. Miolla’s
home to set it up for symptom management and to optimise function:  there is no
evidence that Ms. Miolla is having any difficulty in her home.  She uses
the existing railings to help her up and down the stairs.  This is disallowed

c. Vision therapy: This is based on a recommendation by Ms. Miolla’s
optometrists.  However, none of the physicians who are more familiar with Ms. Miolla’s
condition recommended this.  This is disallowed.

d. CT Scan of the temporal bone:  Ms. Craig apparently took this from Dr. Longridge’s
report in which he said:

The only way to determine whether superior semicircular
syndrome is present is to undertake a CT scan of this area. She has had a CT
head scan and inspection of this after reformatting may be enough to determine
whether this disorder is present. If the
completed CT scan is unsatisfactory for this evaluation she should have a CT of
the temporal bone in the line of the superior semicircular canal.

That does not amount to a
medical recommendation.  Further a CT scan if necessary would be covered by MSP
unless the patient does not want to be put on the waitlist.  There is no basis
to say that a CT is or is likely to be required on a rush basis.  This is
disallowed.

e. Prism lenses:  The defendant does not object to their necessity.  However,
whereas Ms. Craig allows for one every two years based on information from
an optometrist, the defendant says the replacement period should be every five years.
That is arbitrary.  I allow this on the basis suggested by Ms. Craig.

f. Walking sticks:  These are not required since Ms. Miolla no longer uses
them.

g. Hand rail in bath and non-slip mat:  Ms. Craig recommended these based
on Dr. Longridge’s observation that Ms. Miolla must hold on in the
bathroom due to dizziness.  The defendant says that Ms. Miolla did not
indicate these were necessary or not already installed.  I think it
self-evident that it is medically prudent for someone who is suffering from
serious balance problems to have these items.  This claim is allowed.

h. Migraine medication:  As pointed out by the defendant, Ms. Miolla had
migraines before the accident.  This is not recoverable.

i. Handyman services:  Ms. Craig allowed for this because both Drs. Longridge
and Craig noted that Ms. Miolla should avoid standing on ladders.  Therefore
she would not be able to do painting, minor repairs and decorations.  She
allowed for four to five hours per year.  The defendant argues that Ms. Miolla’s
boyfriend has been able to help with tasks in the past and will be able to do
so.  I do not think Ms. Miolla should be required to be dependent on a
relationship with a boyfriend in order to have this done.  I allow this item.

j. Light bulb changer:  I allow this very minor item; it is medically
justifiable on the same basis as the prior item.

k. Gym membership:  As pointed out by the defendant, Ms. Miolla has not
indicated a desire to use a gym in the past nor is she using one now.  I do not
allow this item.

l. Costs associated with possible future falling: This was included by Ms. Craig
for information purposes only and no value was assigned.  I do not think it is
being claimed; but I do not allow it because it is speculative.

m. Vestibular physiotherapy:  The debate here is not whether this is required but,
rather, its frequency.  The defendant has adduced no medical evidence to
challenge the plaintiff’s experts’ recommendation; rather, they refer me to two
other cases in which vestibular physiotherapy was awarded on a less frequent
basis.  That is not a basis upon which to challenge the evidence before me.  I allow
this item as claimed.

[55]    Once again I will leave it to counsel to work out the numbers.

C.             
Special Damages

[56]    Apart from $41there is no dispute as to special
damages.  I award the plaintiff the claimed amount of $2,426.24

D.             
General Damages

[57]    The defendant argues that if the accident caused
Ms. Miolla to have balance problems, the problems are minor.  I do not
accept that characterisation; the balance and nausea problems had a large
impact on Ms. Miolla’s life.

[58]    Ms. Miolla’s counsel, Mr. Rennaud,
relies on Roussin v. Bouzenad, 2005 BCSC 1719.  In that case a 40-year-old
female suffered a number of physical injuries for which she had largely
recovered by the time of trial.  Kelleher J. stated:

[93]      Here, the plaintiff has suffered a mild traumatic brain
injury with complications. The effects have been significant: loss of executive
function, dizziness and vertigo, tinnitus and headaches.

[95]      She also suffered
significant soft tissue injuries. The loss of executive function has prevented
her from pursuing the career she chose.  It has severely limited her
employability.  On the other hand, the plaintiff is independent in her daily
living activities.  She has demonstrated that she is able to excel in
university courses, to play golf and to enjoy attending sporting activities.
She will be able to perform some kind of meaningful work.

[59]    The plaintiff sought an award at the rough upper
limit, which was then $300,000.00.  The court awarded $200,000.  Mr. Rennaud
submits that today’s upper limit is approximately $358,000, the same assessment
would today be $240,000.  From that he says that I should award Ms. Miolla
$200,000.

[60]    First, it is not apparent to me that because the
upper limit is adjusted, so should all other awards and I was not provided with
authority for this proposition.  Second, and more fundamentally, Ms. Miolla’s
injuries and the effect of them are not as severe.  There is no brain damage
here and the soft tissue injury was minimal.

[61]    A closer case – in fact one remarkably similar
to the one at bar – is Moukhine v. Collins, 2012 BSCS 118.  In that case,
the 53-year-old plaintiff also suffered visual-vestibular mismatch.  That impaired
his ability to work as a computer programmer by 50%.  His previous activity
level was curtailed, as was the nature and extent of his outdoor activity
level.  Damages were assessed at $90,000.  Based on that, I assess general
damages at $90,000.

VII.          
Costs

[62]    If there is a dispute as to costs, counsel may address it, at least initially, by written
submissions.

"E.M. MYERS, J."