IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Hendry v. Ellis, |
| 2015 BCSC 1186 |
Date: 20150605
Docket: M153088
Registry:
New Westminster
Between:
Christina Hendry
Plaintiff
And
Brett Ellis
Defendant
Before:
The Honourable Mr. Justice Jenkins
Oral Reasons for Judgment
Counsel for the Plaintiff: | S.D. Ballard V. Cheung |
Counsel for the Defendant: | Y.H.A. Ng |
Place and Dates of Trial: | New Westminster, B.C. June 3, 4, 5, 2015 |
Place and Date of Judgment: | New Westminster, B.C. June 5, 2015 |
[1]
THE COURT: Firstly, if these reasons are published, as usual I
reserve the right to edit and expand upon these reasons for clarification and
otherwise if necessary, however, if it is published the decision will not
change in any way as a result of the published reasons.
[2]
Ms. Hendry claims damages as a result of injuries suffered when her
vehicle was struck from behind by the vehicle owned and operated by the
defendant while on the Gaglardi Way off-ramp of Highway 1 in Burnaby, B.C. The
date of the motor vehicle accident was May 8, 2012 and the defendant admits
liability.
[3]
The plaintiff was 26 years old at the time of the accident, she is now
29 years old. Prior to the accident the evidence is clear that the plaintiff
was an active, energetic, athletic young woman carrying on a very busy
lifestyle, both in her work and personal life. She was very active in many
sports over her life and was quite competitive, being involved in snowboarding,
autocross, back-country hiking, camping, trail biking, and driving of a four
by four vehicle in back country.
[4]
The plaintiff had a B.Sc. degree from Simon Fraser in physical geology
and earth science. At the time of the accident she worked as a hydrogeologist
with SNC Lavalin which involved much field work including lifting, hiking, walking
over rough and rural terrain, often lengthy travel to and from work sites and
often working overtime hours. She enjoyed her job and had no physical
limitations on the job which would curtail her performance.
[5]
I found the plaintiff to be most credible, frank, thoughtful and
comprehensive in her answers. As of May 8, 2012 she was clearly intending to
stay in her line of work and had no limitations on her ability to do so. The
job paid well, in the range of $80,000 per annum, a good salary for a recent
graduate with a university degree at that period of time.
[6]
Also, before the accident Ms. Hendry was living in a common law
relationship with Adam McCausland in a house in Cloverdale purchased by them
together with his parents. She and Mr. McCausland enjoyed many of the
activities described above which was a major part of their relationship. They
also shared household responsibilities.
[7]
As for her health prior to the accident, Ms. Hendry had been diagnosed
with Crohn’s disease in 2010 but after experimentation with various medicines,
the Crohn’s was under control. It had no impact on her ability to work nor on
her personal activities once the medicine was regularized, but she had missed
the odd day of work previously.
[8]
Also, prior to the accident she had been diagnosed with chronic
depression for which she started receiving medicine in 2005. Between 2005 and
the accident, her depression was generally controlled with medication.
The Accident
[9]
Immediately before the impact of the defendant’s vehicle, which from the
evidence of the plaintiff was significant, she was looking to merge into one
line on the off-ramp and looking out for traffic beside her trying to determine
how the vehicles were to merge. She was accordingly leaning forward and looking
out to her side, I believe to the side of the window, when her vehicle was
struck which likely would have caused a twisting motion. She had previously
seen the defendant’s vehicle in her rear view mirror.
[10]
Upon impact, she testified that her head flew back and hit the headrest
and then bounced forward again. This likely occurred from having been in a bent
forward position and turned to one side before the impact. In
cross-examination, she said that her head "bounced off the headrest at a
decent force." It is not clear at all how fast the defendant was
travelling prior to impact but it is clear the impact was significant and even
the defendant testified he felt a jolt. I do not believe that speed was
particularly relevant in this case and anyway, I cannot determine from the
evidence the speed of the defendants vehicle.
[11]
Immediately following the accident, the plaintiff got out, was dizzy,
confused, exchanged information with the defendant, but also refused
assistance, wanting to get to work. She said she was not thinking carefully. She
decided she wanted to be checked by a doctor and called work to advise she
would be late due to the accident which resulted in three work mates driving
out to meet her who ended up driving her to a walk-in clinic. She continued to be
dizzy, confused, weak, felt pain in the left side of her neck and her left
shoulder, shooting pain down her left arm, and tingling in her left hand, all
before her work mates had arrived.
[12]
The next morning she felt stiff all over, throbbing around and ringing
in her ears, a sore and tender spot above her left temple, jaw soreness, neck
and shoulder pain, as well as low back pain. She experienced shooting pains
down her arms from her hip to her legs and knee. I heard extensive evidence
from the plaintiff as to her condition both before and after the accident, the
first few weeks after the accident, the progress after one month, six months
post-accident up to May 2013, and again up to the date of trial.
[13]
Evidence was tendered through the plaintiff, her common law partner at
the time, Mr. McCausland, her mother, and her brother, all of whom were
consistent in describing the pain expressed by the plaintiff, their
observations of her limitations following the accident and her activities both
before and after, both socially and in connection with her household activities.
Her mother and Mr. McCausland provided help in driving her to appointments,
shopping, getting dressed, getting her in and out of vehicles, doing yard and
housework and much more.
[14]
It is clear from the evidence that Ms. Hendry was not a malingerer and
was having considerable difficulty when she attempted to return to work, no
longer being able to lift heavy items containing samples, walking over uneven
and sloped terrain, bending or otherwise trying to perform her work duties.
[15]
As a result, she tried to return to work on May 17, 2012 on her doctor’s
advice. She could not focus on her work, was in pain, and was eventually driven
home by a co-worker. She returned to work on May 28, 2012, again on the advice
of her doctor, but struggled and was tired, sore, and had difficulty getting
through work days. She performed some office work, however, sitting for more
than 30 minutes caused more pain. Physical work aggravated her injuries and she
went on leave on June 24, 2012 until October 2, 2012 when she began a gradual
return to work for one month. I find her attempts to return to work when she
was following and not contesting the advice of her doctor showed her sincere
efforts to try to resume her former work.
[16]
Most of her physical injuries improved over time. One year after the
accident, she was still experiencing symptoms, taking active rehab, and continued
on her medicines. Her strength for work improved although she was adjusting her
movements in order to avoid aggravating the injuries. Her lower back pain
persisted. Her jaw pain had also returned to prior levels, her anxiety,
emotional outbursts, concentration and memory which had been significant
problems for her during the first year had essentially subsided within a year. Also
her back pain in particular continued.
[17]
Ms. Hendry has maintained an active rehabilitation plan, has received
physiotherapy, chiropractic treatments, has seen a physiatrist, Dr. Watson, for
prolotherapy injections and some minor adjustments and she has also attended an
acupuncture treatment.
[18]
Ms. Hendry is on a strict diet and is vegetarian. The medicines had been
prescribed to her following the accident conflicted with her Crohn’s which
caused bowel pain and forced her to cut down on the pain medicine and to look
to other areas to manage the pain for Crohn’s.
[19]
As at the date of trial, she experienced minor neck pain but was
basically back to her pre-accident level of pain. The jaw pain was similar to
what she had before the accident, she had occasional right shoulder pain, but
still experienced decent low back pain. She testified the back pain is always
there and is aggravated by sitting or standing, bending, carrying heavy items,
wearing a backpack and walking on uneven terrain. She continues to bear with
the pain and has adjusted her activities as a result. She takes Tylenol when
needed and exercises regularly.
[20]
She now lives with her father who helps her with cooking, chores and
basic housework whereas after the accident she was unable to perform any active
household chores.
[21]
The accident and chronic pain resulting has also had a significant
impact on the plaintiff’s depression. Several witnesses described her as
becoming irritable including her mother who stated, with a smile, that at one
point in time she wanted to put her up for adoption due to her irritability.
[22]
Approximately one year after the accident, Ms. Hendry attended an
autocross competition in Washington state and attempted to compete. She made
three 40-second runs which involved jerking motions and she ended up in
considerable pain causing her to retire to where she could rest in the
afternoon.
[23]
The defence has suggested this activity was evidence of her being over
her symptoms, however, I do not agree. She clearly wanted to get back to some
of her earlier activities, especially those she shared with her common law
partner whose relationship with her was becoming strained due to her
irritability, her inability to assist at home, and the fact they were no longer
sharing activities. I take her actions in this respect as only an attempt to
return to prior activities and more an act of stoicism than anything else and
that she was frustrated at not being able to enjoy her former activities and
likely wanted to show her family and friends that she was trying. I have no
hesitation in accepting the evidence of the plaintiff that such activities
continue to cause her significant pain.
[24]
Also in 2013, the plaintiff left SNC Lavalin and joined another
environmental firm to work as hydrogeologist which she continues to do with
some difficulty, using heat pads and a lumbar support. She is not working
full-time at present as she has been attending courses at Simon Fraser to
pursue a teaching career. She is undecided as to whether she will continue to
work as a hydrogeologist depending, I suspect, upon levels of pain, or to go
into teaching. A starting teacher would earn approximately $40,000 per year
which would be almost half of what she had earned in her current occupation. However,
she finds teaching work to be less physically demanding.
[25]
Ms. Hendry is optimistic by nature and continues therapy and exercise to
attempt to return her former self. It is clear, however, based upon the medical
evidence submitted by both the plaintiff and defence that since her pain has
persisted for three years the pain is chronic and she is likely to continue to
have pain for the rest of her life.
[26]
Expert evidence tendered at trial was that the duration of soft tissue
pain is considered to be 12 to 16 weeks and if pain is experienced after that
time, it is due to some other mechanism. As Ms. Hendry had no back pain prior
to the accident, it is clear that some other mechanism from the accident is the
cause or contributing to her current pain.
[27]
I will not review in detail the medical evidence which is lengthy. However,
I can safely say that I accept the opinion of Dr. Sawhney, the plaintiffs
doctor, and do not find the evidence of the defence expert, Dr. Bishop, to be
particularly helpful. I have no doubt about Dr. Bishop’s qualifications,
however, there were significant inconsistencies in his evidence provided in an
earlier case, the transcript of which was tendered at trial. At trial he agreed
the absence of an objective basis for pain does not invalidate pain but he did
not say so in his report.
[28]
At trial, Dr. Bishop admitted that the plaintiff continues to suffer
pain and if the motor vehicle accident did not occur, she would not have
experienced the soft tissue injury caused by the motor vehicle accident that
initiated acute pain, and he also stated that pain triggers a psychiatric
reaction that can lead to chronic pain which is what Ms. Hendry is experiencing.
However, once again he did not say so in his report. Dr. Bishop also admitted
most chronic pain patients at three years after the accident will likely not
make considerable progress or at least he agreed that the chances of
significant progress are low.
[29]
I will just refer as well to the notes just to save time in the written
submissions of the plaintiff in paras. 48 through 53 which I accept those
references in the written submissions of the plaintiff regarding the evidence
of Dr. Bishop. These submissions were:
48. He [i.e.
Dr. Bishop] admitted Ms. Hendry had no prior history of low back pain.
49. He
admitted that numerous medical studies have been published, put that put that
3-15% of people continue to have pain after a soft tissue injury and that by
definition, Ms. Hendry is in that percentage of people.
50. In a
previous case he had admitted that there is a leading medical theory that
explains why people have pain after 12-16 weeks: central nervous system
hypersensitivity theory, but in the case at bar he denied it was a leading
theory, even though he accepted it.
51. He
admitted that he did not advise the court in either of his report that 3-15% of
people continue to have pain after a soft tissue injury even though he knew he
was writing his second report specifically for the purpose of an imminent
trial.
52. It is
respectfully submitted that Dr. Bishop did not meet the requirement of an
expert in their duty to assist the court and to candidly disclose alternate
theories that could account for the plaintiffs pain. At best, it was careless,
at worst, it was deceptive by omission.
53. He finally admitted that MVA
injuries were the only reason that started the plaintiff down the path of
chronic pain. When asked if the car accident initiated the process, he finally
admitted that yes it had. He said that he did not put this in his report
because Im bound by the questions I was asked. With respect, this is an
irresponsible attitude for an expert to hold.
[30]
Dr. Bishop also stated many times he does not know the objective cause
of her pain as no bone scans have been performed and she has not seen a
psychiatrist for testing. I find that the cause of the pain has been the soft
tissue injuries and other injuries, some of which may not now be identified as
per Dr. Bishop and that her pain is chronic in nature and most likely to
continue.
Non-pecuniary Damages
[31]
The plaintiff seeks an award for non-pecuniary damages of between
$60,000 and $75,000. The defence submits the appropriate award for
non-pecuniary damages would be between $20,000 and $30,000.
[32]
I have reviewed several of the authorities provided to me and find the
damages assessed in those cases submitted by the plaintiff to be far more
within the realm of earlier cases for similar injuries. Each case must consider
the particular circumstances of each plaintiff and how the injuries affect that
person.
[33]
I find here that the injuries have had a severe and lasting effect on
the lifestyle of the plaintiff and that $75,000 is a fair assessment of the
non-pecuniary damages to which she is entitled. I am adding to this the sum of
$5,000 for a loss of housekeeping capacity on a lump sum basis.
[34]
Contrary to the submissions of the defence, I do not draw an adverse
inference from the plaintiff not calling Dr. Van Aardt whose clinical notes
were available to Dr. Sawhney so as to allow Dr. Sawhney to be able to
establish her prior health.
[35]
I agree with the comments in particular of Mr. Justice Butler in Ng
v. Sarkaria, 2011 BCSC 1643 where Mr. Justice Butler stated:
[34]
They rely on Barker v. McQuahe (1964), 49
W.W.R. 685 at 689 (B.C.C.A.), for the proposition stated by Davey J.A. at para.
13:
In my opinion, a plaintiff who
seeks damages for personal injuries ought to call all doctors who attended him
in respect of any important aspect of the matters that are in dispute or
explain why he does not do so.
[35] In the circumstances
of this case, I see no reason to draw an adverse inference. As noted in Barker,
witnesses should be called in relation to important aspects of the matters in
dispute. There is no requirement to call every physician who treats a claimant.
To do so would often be a waste of court time, not to mention the time of the
doctors involved. Here, Mr. Ng produced all of his medical records including
the consult reports of all of the doctors in question. The information relating
to their diagnoses and recommendations are before the court. Drs. Tai and
Milton Wong were involved with Mr. Ng after the Herniations were diagnosed.
They provided opinions as to whether surgery was required. The defendants take
no issue with their recommendations in favour of surgery. In these
circumstances, there was no reason for the plaintiff to call their evidence,
nor the evidence of Dr. Lee who performed the surgery.
[36]
Also the defence would have been able to call Dr. Van Aardt but did not
do so. The clinical notes of Dr. Van Aardt available to Dr. Sawhney included:
17 May 2012 3:45 pm, Jan Van Aardt
(Sprains & strains other parts back)
Subjective:
26 year old female with
#severe neck and jaw pain
fees its radiating down spin
not coping well, too much pain,
feels pain over hips
Objective:
obs n, apyrexial
gen: -jacol
very emotional, ++ crying, too much
stress and pain
feels she cannot function at work
no depression sx, only pain and stress
sx
does not want any extra meds, already
on naproxen/felx/tylenol
spine: still bilat neck spasm, mild
tenderness lower back, nv intact, no neuro fallout
Assessment:
neck and back strain
Plan:
sick note extended until 25
may/2012
14 May 2012 12:06 pm, Jan Van
Aardt
(Cervicalgia neck pain)
Subjective:
26 year old female with
#driver, +seatbelt, -airbags
may 08/12
rear ended
c/o neck pain and upper back pain,
also lower back and hip pain
also headache L side, no head injury
was seen at ER = all XR normal
Objective:
obs n, apyrexial
gen: -jaccol
c-spine = n rom, no tenderness
palpated over spine but ++ neck spasm bilat, no neuro fallout
Assessment:
neck strain
Plan:
sick note
pristiq 100 mg x 100
Those injuries described the plaintiffs pain as recorded by
Dr. Van Aardt shortly after the motor vehicle accident. Everything there is
consistent with the complaints of the plaintiff which led to the long-lasting
injuries which she has suffered.
Past Wage Loss
[37]
The evidence supports the claim for past wage loss rounded after deducting
income tax to $16,240. I take no exception to the calculations for overtime
included in that amount which is a fair average of the overtime she had been
working and would have worked but for the accident.
Future Earning Capacity
[38]
I refer to records and to Dr. Sawhney’s report where he said:
With respect to her employment,
her future employment opportunities will be limited to light duty and low
stress positions. She will not be a suitable candidate for a hard labour
position due to her ongoing chronic pain and stiffness. Therefore, this will
limit the positions she can find in the future if she decides to do so. I
believe she will have to work with pain on a long term basis.
[39]
There is clearly a large uncertainty insofar as what the plaintiff will
be able to do in the future in that respect.
[40]
Considering her young age, her attempts to find another career less
painful which may pay less, her prior energy and drive, and her wish to
continue to be a productive member of society, counsel for the plaintiff submitted
that his estimate for loss of earning capacity, which I believe he stated it is
modest, and I agree, that his claim for $40,000 is tempered and I so award that
amount.
Special Damages
[41]
The claim for special damages at $12,622.62. There has been no evidence
proffered by the defence to reduce these in spite of the allegations that they
have been exaggerated. The sum $12,622.62 is hereby awarded for special
damages.
Future Care
[42]
Future care costs sought at $5,000 is also described by counsel to be
modest, and the plaintiff is entitled to that amount for medicine,
rehabilitation, including exercise, and chiropractor and other treatment.
[43]
I believe that covers the heads of damage. Essentially, I accept the
evidence and submissions of the plaintiff.
Costs
[44]
Insofar as costs are concerned, I think it is fairly obvious who is
going to be entitled to costs on this matter. Obviously, I would not know what
offers may have been made. If you wish to discuss costs at this point in time
we can do so.
[45]
MR. BALLARD: Yes, My Lord. I’ve had this experience before. There
was a formal offer delivered by the plaintiff on May 13th of this year in the
amount of $65,000 and the only issue is this is a Rule 15-1 case
[46]
THE COURT: Oh yes. I forgot about that.
[47]
MR. BALLARD: — and so the double costs for the trial portion
would be $4,500 on top of the regular costs. I have some authorities here on
double costs. One is the Bowen v. Martinez case and one is one of my own
cases in front of Mr. Justice Butler and I think the decision of Mr. Justice
Butler is illustrative of an approach that Your Lordship could follow in this
case. If you turn to the last page of that case essentially what happens is
there was a two-day trial so double costs for that two days with an extra
$3,000 on top of the normal $3,000. Rule 15-1 you get $1,500 in costs for each
day of trial so Mr. Justice Butler doubled that for the two days of trial and
then in that case he set out a portion of costs and doubled them for an
additional $2,500 that he doubled for $5,000 and he took the $6,500 that was
available to the plaintiff for pre-trial procedures and said look the timing of
that formal offer in that case and said I find that you know essentially $4,000
would be costs occurred before the offer was made and $2,500 occurred after
that offer was made so he doubled that as well. Now in that case it doesn’t say
in the reasons but obviously I know when the timing of that offer was and it
was five months before trial so that’s significantly different than this case. This
offer was just delivered to me before trial, so I would say that in addition to
the double costs for trial that a fair award would be an extra $1,000 doubled
so
[48]
THE COURT: I think that is more than fair.
[49]
MR. NG: So the submission is $6,500 for the regular preparation,
but $1,000 of the
[50]
THE COURT: Doubled.
[51]
MR. BALLARD: $5,500 in costs for pre-trial procedures, plus
$2,000 in costs that is double of $1,000, plus $9,000 in costs for the trial.
[52]
MR. NG: Three days of costs for the trial.
[53]
MR. BALLARD: Yeah. So $3,000 plus $2,000 plus $5,500,
that’s $16,500. That’s my submission, My Lord.
[54]
THE COURT: I think that is right.
[55]
MR. BALLARD: Plus taxes.
[56]
THE COURT: Yes and disbursements. Mr. Ng?
[57]
MR. NG: Yeah, really, I don’t have any submissions in response
to that. It’s a rough and ready breakdown of $1,000 in addition for pre-trial
preparation doubled to account for the two weeks in time.
[58]
MR. BALLARD: Is that Your Lordship’s ruling then?
[59]
THE COURT: Pardon me?
[60]
MR. BALLARD : Is that Your Lordship’s ruling then?
[61]
THE COURT: Yes.
[62]
MR. BALLARD: It’ll be $16,500 plus
[63]
THE COURT: So it comes to yeah, I thought I had said
[64]
MR. BALLARD: Plus tax, plus disbursements on it.
[65]
THE COURT: Yes. Thank you very much.
[66]
MR. BALLARD: I should advise the Court I will be ordering
reasons.
Jenkins
J.