IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20150430

Docket: 93777

Registry:
Kelowna

Between:

Laura Lee Ducharme

Plaintiff

And

Adam Bradler and
Lauren Stephney

Defendants

–
and –

Docket: M95895

Registry:
Kelowna

Between:

Laura Lee Ducharme

Plaintiff

And

Tyrell Gordon and
Tyran Enterprises Ltd.

Defendants

Before:
The Honourable Madam Justice Fitzpatrick

Oral Reasons for Judgment

In
Chambers

THE COURT:

Introduction

[1]           
The plaintiff, Laura Ducharme, was involved in two motor vehicle
accidents in Kelowna, British Columbia on January 2, 2010 and September 7, 2010.
Liability has been admitted in both actions and, accordingly, the trial before
me was to address the matter of damages.

[2]           
Ms. Ducharme claims damages for pain and suffering and also special
damages.

[3]           
The defendants in both actions take the position that Ms. Ducharme
suffered no further injuries arising from the accidents. Further, the defence
says that her complaints after January 2010, and her current complaints, are
consistent with pre-existing injuries suffered by her as a result of previous
motor vehicle accidents.

[4]           
Accordingly, the issues are whether the subject accidents caused new
injuries to Ms. Ducharme or aggravated her pre-existing conditions and, if so,
what is the extent of the further damages.

Background Facts

[5]           
Ms. Ducharme is presently 46 years old. Her history of motor
vehicle accidents is extensive, commencing in 1993 and continuing in 1994,
1995, 2006 and 2007. All of these accidents resulted in Ms. Ducharme suffering
injuries that required medical treatment. Her principal treating physicians
were and are Dr. Kenneth Ng in Langley, British Columbia and Dr. Brian
Martin in Lake Country, British Columbia.

[6]           
Actions were filed in respect of all of these prior accidents and all
were later settled without the necessity of a trial.

[7]           
I will discuss the extent of Ms. Ducharme’s injuries prior to
January 2010 in the context of a discussion of her current complaints.

[8]           
Clinical records of Dr. Ng and Dr. Martin were put into
evidence by agreement as business records: Evidence Act, R.S.B.C. 1996,
c. 124, s. 42. Similarly, the clinical records of Ms. Ducharme’s
chiropractor, Dr. Peter Bartnik, of Murrayville Family Chiropractic in
Langley, were in evidence.

(i)       The First Accident

[9]           
Ms. Ducharme describes that, on January 2, 2010, she was sitting in
the passenger seat of Darren Webb’s vehicle in the parking lot of a Safeway
grocery store in Kelowna. Ms. Ducharme was living with Mr. Webb at
the time. The pleadings indicate that Mr. Webb was driving a Ford F350, a
rather large and heavy vehicle, and the defendant, Adam Bradler, was driving a
2004 Hyundai Accent.

[10]       
Ms. Ducharme says that all she remembers is being struck from
behind and that her head went forward. She felt pain rushing forward from her
head to her spine. She called 9-1-1 and, after the ambulance arrived, she was
taken to the hospital. While at the hospital, she was given a neck brace, and
she says that she was in severe pain from the neck brace. After some hours, she
was sent home. She says that she was in a lot of pain that night. She also
experienced some anxiety about driving that day, and the next day also when Ms. Ducharme
drove to Langley with Mr. Webb. While in Langley, she saw Dr. Ng, who
prescribed some pain medication.

[11]       
Neither party introduced any evidence about the extent of any damage to Mr. Webb’s
vehicle.

(ii)      The Second Accident

[12]       
The second accident occurred when Ms. Ducharme was on her way to
the doctor’s office in Mr. Webb’s Pontiac Trans Am. She was in the middle
of a turn onto a side street when the defendant, Tyrell Gordon, driving a
Chevrolet Silverado, suddenly backed up into her vehicle. Ms. Ducharme had
no physical side effects from this accident. She did have substantial driving
anxiety or "trauma" immediately after the accident.

Present Complaints and Treatments

[13]       
In addition to the immediate effects of the accidents, Ms. Ducharme
says that the subject accidents caused her to have headaches and tightness in
her neck for months afterwards, which was similar to complaints prior to
January 2010. She also described having left eye problems, or pain in her eye,
which she attributed to the January 2010 accident, and which she says was not
present prior to the subject accidents. Finally, she states that she has
driving anxiety arising from the January 2010 accident.

[14]       
The special damages claimed total $3,454.75 and include:

a)    a one-year yoga
membership: 156 visits from September 2010 to September 2011- $894.88;

b)    physiotherapy:
28 visits from June 2011 to April 2012 – $970;

c)    chiropractic
treatment: four visits in June 2010 – $200;

d)    prescription for
Naproxen: July 2011 – $47.66;

e)    pharmacy receipt
for Botox treatment: October 2011 – $9.97;

f)      foam
roll: November 2011 – $39.14;

g)    headache book:
January 2012 – $19.60;

h)    massage
treatments: four visits from February 2012 to April 2012 – $480; and

i)      mileage
to yoga, physiotherapy, chiropractic, massage and law office visits: 2,645
kilometres at $0.30 per kilometre – $793.50.

Analysis

[15]       
The first matter to consider is Ms. Ducharme’s credibility.

[16]       
At the outset, it is clear to me that Ms. Ducharme has little
recollection of her medical treatment prior to January 2010. When
cross-examined as to the various entries in the clinical records, she was
unable to recall most details. This is not surprising given the time delay to
today’s date; however, this lack of evidence does not support any real analysis
of the "pre" and "post" symptoms of Ms. Ducharme in
respect of the subject accidents in terms of assessing the true effect of the
latter on her.

[17]       
Ms. Ducharme’s recall, even of the January 2, 2010 accident, was
substantially wanting. On cross-examination, she was questioned as to the
circumstances of this accident. She stated emphatically that Mr. Webb’s
vehicle was stationary in a parking stall when it was rear ended by the vehicle
driven by Mr. Bradler. Yet her own notice of civil claim filed in December
2011 referred to her and Mr. Webb’s vehicle being stopped at a stop sign in the
parking lot waiting to turn left onto Leckie Road, just as suggested to her by
defence counsel.

[18]       
Finally, Ms. Ducharme was successfully challenged in terms of her
recall of why she declined a work opportunity in January 2010. This was a minor
matter, but would confirm that, before the subject accidents, she was unable to
take that job because of what she described as arthritis in her neck and back.

[19]       
A further relevant factor is that Ms. Ducharme has been convicted
of fraud and providing false and misleading information to social assistance
authorities. The circumstances of this matter related directly to the previous motor
vehicle accidents that she was involved in. When Ms. Ducharme settled the
first three of her accidents (those that occurred in the 1990s), she failed to
disclose to the authorities that she had obtained the settlement monies, as she
was required to do. She was given a warning and her benefits were slightly
reduced.

[20]       
When Ms. Ducharme settled her 2006 and 2007 accidents, despite
being aware of the need to advise the authorities, she again did not do so. She
obtained $51,000 in settlement monies and then took surreptitious means to hide
that fact from the authorities. That included depositing the monies into her
lawyer’s bank account (rather than her own account, which would be monitored)
and making withdrawals from that account. When she was confronted by the
authorities about the settlement, there was $10,000 left in the bank account. She
then took further steps to remove those funds beyond the reach of the social
assistance authorities by putting those monies in the name of a friend.

[21]       
These egregious actions resulted in criminal charges being laid. In
April 2013, Ms. Ducharme pled guilty to the charges and she was sentenced
to 30 days in jail, a $10,000 fine and probation. She served the jail time
intermittently.

[22]       
Ms. Ducharme’s somewhat flimsy explanation for this situation was
that things got "screwed up" and that she made a mistake. This is
belied by the factual circumstances which indicate a planned scheme over time
to avoid detection by the authorities. In any event, the guilty plea is
indication enough of her deception. Ms. Ducharme’s evidence was that this
situation led to her being unrepresented at this trial.

[23]       
While defence counsel suggests that Ms. Ducharme has been proven to
be a liar in the past, I do not consider that it is necessary for me to make
such a finding here in respect of her current evidence. In large part, Ms. Ducharme
struck me as someone who was trying her best to advance her case as best she
could. I did not form the impression that Ms. Ducharme was lying in the
presentation of her evidence. However, the reality is that her recall of events
is very dim indeed. This is particularly so in respect of her status prior to
January 2010. Even her evidence about the January 2010 accident is somewhat
vague and conflicting. With respect to her status post-January 2010, again,
details are lacking and Ms. Ducharme’s general and brief description of
her medical condition after the accidents causes me to conclude that her
evidence is, at best, vague and unreliable.

[24]       
No other lay witnesses were called by Ms. Ducharme to corroborate
her evidence as to her injuries and how her life has been affected by them.

[25]       
The clinical records of Drs. Ng, Martin and Bartnik stand as the only
real independent record of Ms. Ducharme’s injuries and course of treatment
from 2006 to late 2009. As I have stated, the parties agree as to the accuracy
of the facts recorded in those records. However, Ms. Ducharme really has
little, if any, independent recollection of her visits, but she does confirm
that she was truthful and accurate in her complaints to these medical
practitioners.

[26]       
I would summarize these records as follows:

a)    in May 2006, Ms. Ducharme
saw Dr. Martin in relation to a motor vehicle accident. She complained of
neck and chest pain, being up at night, poor sleep and headaches;

b)    in June 2006,
she complained to Dr. Martin of left neck and shoulder pain and low back
pain from the accident for which she was receiving physiotherapy treatment. Other
complaints included numbness and tingling and weakness of the left arm. In
August 2006, she was reporting to Dr. Martin that her lower back had
settled but she was left with neck and shoulder tightness. In November 2006,
she was reporting to Dr. Martin that she was suffering headaches and dizzy
spells and left arm and neck stiffness;

c)    in February, March
and April 2007, Dr. Martin’s notes indicate depression for which
medication was prescribed. In addition, Ms. Ducharme was still reporting
"persistent" left neck and back pain, and numbness to the left arm
for which she was seeking chiropractic treatment. Finally, she was reporting
lots of anxiety while she was a passenger in a car. Similarly, in April 2007, Ms. Ducharme
reported back and neck pain to Dr. Ng. In June and September 2007, Ms. Ducharme
reported lower back pain and headaches to Dr. Martin. In November 2007, Ms. Ducharme
was in another accident. She immediately reported upper, mid, and lower back
pain and, later, some headaches to Dr. Martin;

d)    in early 2008, Ms. Ducharme
was diagnosed with some disc degeneration. In January 2008, her back pain was
so severe that she went to the emergency department of the Kelowna General
Hospital. In August 2008, there was a diagnosis of moderately severe
osteoarthritis in the lower back. Throughout 2008, Ms. Ducharme continued
to complain to both Dr. Martin and Dr. Ng about neck, back, and
shoulder pain, headaches, stress, stiffness, and numbness in her limbs;

e)    in February
2009, Ms. Ducharme sought chiropractic treatment for her self-reported
symptoms, being "left side shoulder and neck, lower back tight, sore,
can’t bend, move well." Her treatments continued throughout 2009 to
December 29, 2009, just before the first accident;

f)      Dr. Ng
continued to treat Ms. Ducharme throughout 2009. Dr. Ng diagnosed post-traumatic
stress disorder (“PTSD”) in June 2009. Ms. Ducharme says that this was a
mis-diagnosis and that she was later diagnosed as bipolar. In July 2009, he
noted "chronic pain, depression, anxiety, claustrophobic, panic attacks
daily." In July 2009, he noted headaches and dizziness and sleeping
difficulties. In October 2009, he noted reading or eye difficulties and
headaches;

g)    in October 2009,
Ms. Ducharme’s leg and back pain was so severe that she attended at the
emergency department of Langley Memorial Hospital; and

h)    in October 2009,
the soreness, aches, dizziness, and anxiety continued. In November 2009, Dr. Ng
specifically noted Ms. Ducharme’s anxiety as a passenger in a car. Finally,
in late December 2009, Ms. Ducharme reported to Dr. Ng that she had experienced
numbness in her hands and leg during the last two weeks.

[27]       
To further summarize, by late 2009, Ms. Ducharme had been dealing
with a host of medical issues arising from her earlier motor vehicle accidents,
including neck, shoulder, back pain, headaches, pain and numbness in her limbs
and left eye pain and problems, in addition to psychological issues such as
depression, PTSD and driving anxiety. The pain symptoms were stated by her
doctors to be chronic at the end of 2009 and they remained symptomatic at that
time.

[28]       
Ms. Ducharme acknowledged that these physical conditions did impact her
personal life in terms of her ability to complete daily tasks, such as cleaning
and yard work.

[29]       
These are the same symptoms that Ms. Ducharme asserts now as
arising from the 2010 accidents. Ms. Ducharme contends that every time she
gets hit in a motor vehicle collision, her condition is inflamed, the pain
"comes back" and it gets worse. She contends that she is in constant
pain now and that she will have to live with it for the rest of her life.

[30]       
Counsel refers to the well-known "but for" test that applies. The
critical inquiry in these complex circumstances of multiple accidents, most of
which are not the subject of this action, is what injuries or what aggravation
of injuries were caused by these 2010 accidents? The further issue that arises,
if causation is proven, is what was the extent of such further injuries or
aggravation of injuries?

[31]       
As I stated above, I consider that Ms. Ducharme’s evidence is
mostly unsatisfactory and unreliable in establishing that any injury or any aggravation
of injury was caused by these accidents, other than some immediate increased
pain for a short while following the January 2010 accident. It also remains a
factor, albeit not determinative, that the second accident in September 2010
was minor and did not cause any physical effects to Ms. Ducharme. That
second accident did, however, as did the January 2010 accident, cause an immediate
increase in her driving anxiety.

[32]       
The other and more important matter is that Ms. Ducharme has
utterly failed to marshal any independent corroborating evidence in support of
her claim which might be consistent with the nature of her alleged further
injuries. Defence counsel has referred to the many authorities that discuss
heightened scrutiny in such situations, such as Price v. Kostryba (1982),
70 B.C.L.R. 397 (S.C.).

[33]       
Of particular importance is that there is no medical evidence in support
of Ms. Ducharme’s claim, either in respect of the causation of injuries
arising from the January and September 2010 accidents or whether pre-existing
conditions were aggravated and, if so, what was the extent of any injuries or any
aggravation of injuries. I agree with the defence that, in these circumstances,
such evidence was necessary on these complex issues: Deo v. Wong, 2008
BCCA 110 at paras. 19-20.

[34]       
No clinical records after December 2009 were in evidence and no medical
professionals testified as to Ms. Ducharme’s reporting of symptoms or
treatment recommendations from that time.

[35]       
In the course of the first day of the trial, and as part of her case, Ms. Ducharme
sought to introduce opinion medical evidence in the form of a letter from Dr. Ng
dated August 1, 2014 and a letter from Dr. Martin dated July 4, 2014. The
defence objected to the admission of such opinion evidence, principally
relating to the fact that these letters were not in the proper form in
accordance with the British Columbia Supreme Court Civil Rules, Rules
11-2 and 11-6. The defence further objected to such evidence since Dr. Ng and Dr.
Martin had not been presented for cross-examination as required by the defence.
These objections were upheld and these letters were not admitted into evidence.

[36]       
The defence did not call any evidence.

[37]       
The onus remains on Ms. Ducharme to establish that her injuries, or
the aggravation of her pre-existing injuries, were caused by these accidents. In
my view, she has failed to meet that onus in these circumstances, save in
relation to immediate increased pain and anxiety after the January 2010
accident, and increased anxiety immediately after the September 2010 accident. I
accept her evidence in that respect as evidence of her injuries or the aggravation
of her pre-existing injuries.

[38]       
In light of my conclusion on causation, it is not necessary to
specifically address the special damages sought in respect of the remainder of
the alleged injuries. All were contested by the defendants. Ms. Ducharme
did not give any detailed evidence concerning those expenses other than to
refer to the list which was marked as an exhibit at trial. No receipts were
produced, despite the defence having requested them some time ago. Again, the
issue would have been whether those treatments arose from the pre-existing
conditions or were attributable to the subject accidents.

[39]       
I would note that the only expense that was temporally connected to the
2010 accidents was the yoga membership. The only evidence in support of this
expense was Dr. Ng’s record of February 3, 2009 which refers to Ms. Ducharme’s
"thinking" of taking up yoga. Ms. Ducharme confirmed in her
evidence that it was her idea and not recommended by Dr. Ng. The
authorities are to the effect that these expenses must be reasonable and
medically justified. Here, no such medical justification can be found in the
evidence for this expense.

Conclusion and Result

[40]       
While I have some sympathy for Ms. Ducharme’s position in that she
has been hampered by her self-representation in these actions for some time,
that fact cannot give rise to a result not founded on the evidence.

[41]       
Ms. Ducharme is awarded the sum of $1,000 in respect of the January
2010 accident and $500 in respect of the September 2010 accident. In my view,
this reflects the minor nature of these proven injuries or the aggravation of
injuries:  see Milanovic v. Bokenfohr, 2003 BCPC 316; Mokanasingham
v. ICBC, 2009 BCPC 251; Vuong v. Wong, 2007 BCPC 172; Seto v. Ng,
2009 BCPC 218.

[42]       
I will now address the matter of costs. Ms. Ducharme, do you have a
submission on costs?

[43]       
LAURA DUCHARME: No. No, Your Honour.

[44]       
THE COURT: Mr. Spinks?

[DEFENCE SUBMISSIONS RE COSTS]

[45]       
THE COURT: In the ordinary course, Ms. Ducharme would have been awarded her
costs in both actions. In accordance with Rule 15-1(15)(b), the costs of this
two day trial would be $9,500 plus disbursements. However, defence counsel has
referred me to previously delivered offers to settle, which I have the
discretion to consider: see Rule 15-1(16).

[46]       
 These actions were commenced in December 2011 and July 2012. Mr. Spinks
has outlined the settlement offers that have been extant for some time. In January
2012, there was an offer in the amount of $21,000; and, in April 2014, there
was an offer in the amount of $40,000. Clearly, those offers substantially exceed
the result in this trial and, in my view, should reasonably have been accepted
by Ms. Ducharme, particularly when it became apparent that she could not or
would not marshal the medical evidence she needed in proving her claims. No
submissions were made on the relative financial circumstances of the parties.

[47]       
I accept the position of the defence in respect of the award of costs. In
the circumstances, I am satisfied that a double costs award is appropriate: Gichuru
v. Pallai, 2013 BCCA 60. Accordingly, costs are awarded in favour of the
defendants in the sum of $19,000 plus reasonable disbursements.

“Fitzpatrick
J.”