IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150928

Docket: M156133

Registry:
New Westminster

Between:

John Willis also
known as Marz Willis

Plaintiff

And

Daniel Lalancette,
Brian Vandokkumburg
and Paccar Financial Services

Defendants

Before:
The Honourable Mr. Justice Wong

Oral Reasons for Judgment

Introduction

[1]            
THE COURT: The plaintiff, John Willis, was involved in a motor
vehicle accident on May 1, 2012, when he was rear‑ended by a heavy
truck trailer. The plaintiff subjectively experienced a number of symptoms,
including pain and spasms in his neck, right arm, back, and hip, numbness and
tingling in his extremities, headaches, and anxiety. His main ongoing concern
relates to his mid and low back pain complaints.

[2]            
The defence contention is that they accept that the plaintiff sustained
an injury to his soft tissues as a result of a modest accident, but note that
they were superimposed upon a significant pre‑existing injury. On that
basis, the defendants say that the accident injuries temporarily aggravated the
plaintiff’s actively symptomatic neck pain and caused minor mid and low back
pain. All of these injuries resolved or returned to their baseline within a
relatively short period of time following the accident, and most certainly by
August 24, 2012.

The Background

[3]            
The plaintiff, Mr. Willis, described the accident as follows: He
was driving a 1998 Toyota Tercel. His vehicle was moving slowly forward to
approach a left‑turn signal. There was a long line of traffic and there
had been considerable light changes without much forward movement. He was alone.
The weather was clear. Mr. Willis said he was struck from behind by a semi‑trailer
vehicle. He said he was struck four times. He believed it to be intentional.

[4]            
In the course of being hit from behind, he was pushed forward into
traffic and then pushed forward up onto the median. There apparently was no
front contact. Mr. Willis reported that he was in shock and he was
concerned about his personal safety. He does not know how much damage there was
to his vehicle. He remained in his vehicle and called the police, and police
came to the scene. He said the other motorist was out of his vehicle and was
screaming at Mr. Willis.

[5]            
While remaining in his car, Mr. Willis experienced shortness of
breath. He had no prior history of chest pain or cardiac conditions. An
ambulance arrived at the scene and paramedics transferred Mr. Willis to
Abbotsford Regional Hospital. In the emergency department of the hospital, a
physician carried out a history and physical examination. At the time,
Mr. Willis was complaining of pain in his right arm, neck, hips, back, and
right knee. He was discharged later from the emergency department.

[6]            
Mr. Willis also testified he had a work‑related incident two
months before. He was vacuuming at his job as a school custodian when part of
the vacuum became stuck, and he pulled hard with his right arm. In doing so, he
experienced a bolt of electricity down his right arm. He reported this to
WorkSafe and was off work. While attending a physiotherapist, a diagnosis of pinched
nerve was made.

[7]            
Mr. Willis was referred to Dr. Sahjpaul, neurosurgeon. In 2014,
for this condition, an anterior body fusion was carried out by Dr. Sahjpaul.
There was apparently immediate relief of pain in his neck and right arm.

[8]            
Mr. Willis is of the opinion that the road traffic accident of May 1,
2012, aggravated the pre‑existing condition in his neck and right arm. He
said, as a result of the impacts, he experienced increased neck pain and
increased right‑arm pain. The assessment by Dr. Sahjpaul was made
before the motor vehicle accident. He reported he had seen Dr. Sahjpaul
twice before the road traffic accident for evaluation of neck and right arm
pain. He advised further that before the motor vehicle collision, surgery was
recommended and planned.

[9]            
Mr. Willis said that WorkSafeBC denied his claim for injury on the
job. Mr. Willis said he was employed by the school board as a custodian. At
the time of the motor vehicle accident on May 1, 2012, he was off work on
disability for the work‑related injury to his neck and right arm. Mr. Willis
said the claim was then denied. He cannot recall how long he was off work
before surgery. The operation was carried out on April 25, 2014.

[10]        
Mr. Willis related the following accident related symptoms:

1.    
Headache

[11]        
Mr. Willis said as a result of the collision on May 1, 2012,
he is experiencing a new migraine. He said he experiences one migraine every
two months. He said these migraines are associated with nausea and vomiting,
something he never experienced before. He said the headache lasts about six to
eight hours, during which time he avoids light, noise, and heat.

2.    
Neck

[12]        
Mr. Willis advised that his neck is sore, but much less compared to
before the motor vehicle accident. He now has experienced some pain‑free
days. He is uncertain as to the level of aggravation.

3.    
Right arm

[13]        
Mr. Willis advised that he recently had a Vancouver General
Hospital EMG study six months previously. He was advised the results of the
study were good. The nerve changes seen before the operation were improving. He
said the power is good, the sensation is satisfactory; however, he has
difficulty exercising the arm due to back pain.

4.    
Back

[14]        
Mr. Willis said, as a result of the event on May 1, 2012, he
is experiencing low back pain and mid back pain which he never had before. In
doing so, he points to the lumbar area in the thoracolumbar junction. This is
on a daily basis and he has no pain‑free days.

5.    
Right and left legs

[15]        
Mr. Willis said he never had pain in his legs before. He said he is
now experiencing, since May 1, 2012, pain in his right leg down to the
knee. He said he is experiencing occasional pins and needles in his foot. He
has never had an EMG test for the nerve pain in the legs. He said coughing and
sneezing aggravates the pain in the right leg. He thinks he has decreased power
in the right and, to a lesser degree, the left.

6.    
Right knee

[16]        
In 2007, he had a previous injury to the right knee where a ligament was
lost. He made a squat and noticed a pop in the right knee. There was a plan to
have surgery performed in Burnaby but it never got done. Mr. Willis is of
the opinion that the event on May 1, 2012, aggravated the condition in his
right knee. He attributes the aggravation to hitting the brake pedal.

7.    
Right groin

[17]        
Mr. Willis said that the right groin is painful. He thinks it is
related to the back pain.

[18]        
Mr. Willis is now 49 years of age and single. Beginning the year
2000, he was employed by the school board in Langley. He began working as a
groundskeeper, but then advanced to becoming an indoor custodian. He worked
steadily until he injured his neck on the job. He stated that he was fired from
his school job for failure to show up for a medical assessment examination. He
said he missed the appointment due to stress after the motor vehicle accident.

[19]        
Mr. Willis also stated that he has experienced anxiety and
depression since the event of May 1, 2012. He has a feeling of inadequacy.
He has lost direction. He has lost all his friends. He feels socially isolated.
His physician works in Vancouver and he has no means of transportation to see
his physician. He received his pension payout from the school board and paid
the money back to the friends that he owed.

[20]        
Mr. Willis also related the following barriers to his future
employment: back pain, hip pain, leg pain, no strength. He also said any
exercise makes all of the described conditions worse.

[21]        
Dr. McGraw, the examining orthopedic surgeon for the defence,
stated that the plaintiff did not exhibit non‑organic activity or pain
magnification behaviour.

[22]        
There is some conflict with respect to the motor vehicle accident
circumstances of May 1, 2012. Mr. Willis said he was hit from behind,
pushed forward into traffic, and then pushed forward up onto the median. He
said the vehicle that struck him was a semi‑trailer and that he was
struck four times. He thought the collisions were intentional. The records of
Abbotsford Regional Hospital triage department on May 1, 2012, indicate
that Mr. Willis was stopped at an intersection and was bumped slightly
from behind. There was no damage to his vehicle and he began to feel very
anxious. The records indicate a history of anxiety attack 15 years earlier. The
single physical finding reported was tenderness on the anterior ribs which led
to a diagnosis of possible chest wall injury. A subsequent radiograph of the
chest was normal.

[23]        
In the British Columbia Ambulance report it stated that Mr. Willis
felt like he was having anxiety. It went on to state that Mr. Willis was
rear‑ended at an intersection at low speed, no damage. They concluded
that “the patient feels like he is having an adrenaline rush”.

[24]        
I have concluded that Mr. Willis is not an accurate or reliable historian
of the motor vehicle event. His trial recollection is at odds with what he
related to the ambulance paramedics and to the emergency triage staff at the
hospital. Photographs of his vehicle only show a single visible pushed-in dent
on the upper‑left portion of the vehicle rear trunk. Accordingly, the
force of the rear‑end impact was likely not considerable.

The Medical Assessments

Dr. Grover

[25]        
Dr. Grover is an orthopedic surgeon. He examined Mr. Willis on
January 18, 2014, after which he provided a medical legal report based on
his review of the medical records, his own examination of Mr. Willis, and
Mr. Willis’ self‑report. Dr. Grover’s diagnosis is that the
accident caused the following: soft tissue injuries on Mr. Willis’ neck
and low back, aggravation of pre‑existing neck, right arm, and mid‑back
condition, new onset of right low‑back radiculopathy, chronic pain
syndrome, probably anxiety and depression.

[26]        
Dr. Grover opined that Mr. Willis would likely require surgery
to his neck, which did happen. However, his prognosis is that Mr. Willis
will very likely have permanent pain and that his employability has also been
permanently affected.

Dr. McGraw

[27]        
Dr. McGraw reported, as mentioned previously, that Mr. Willis
did not exhibit any non‑organic activity or pain magnification behaviour.
He concludes that Mr. Willis suffered soft tissue injuries to his cervical
and thoracolumbar spine, which is the neck and mid to low back. He also
concludes that the May 1, 2012 motor vehicle accident, as described, did not
likely result in any significant lumbar spine injury and is not the basis for
any current low-back complaint.

Dr. Horner

[28]        
Dr. Horner is Mr. Willis’ family doctor. He has been
Mr. Willis’ family doctor for over 25 years. He also has had the most time
to monitor Mr. Willis’s condition since both the work accident and the car
accident. Dr. Horner has provided a medical legal report based on his
longstanding history with his patient, his own examinations of his patient, and
his patient’s self‑reporting. Dr. Horner’s opinion is as follows: headaches,
depression, and post-traumatic stress disorder, soft tissue injury to the neck,
mid back, and low back, aggravation of pre‑existing neck and right‑arm
condition, chronic pain.

[29]        
His prognosis is as follows: the mid‑back and groin pain, as well
as depression and post-traumatic stress disorder are expected to improve. However,
his back pain is expected to continue and he is at risk for longer term
depression due to chronic pain.

[30]        
Dr. Horner’s prognosis is that Mr. Willis will require
retraining to perform a job with light duties, as his custodial job likely
cannot accommodate limited sitting, bending, and twisting, and reduced hours.

[31]        
In cross-examination, Dr. Horner was asked about his recollection
that Mr. Willis first told him about the accident on July 9, 2012. As
he explained it, Mr. Willis mentioned it, but he did not want to talk
about it, and respecting his patient’s request, he did not write it down. But
then Dr. Horner thought about it and wanted to give guidance to
Mr. Willis about the treatment of the accident at the next visit.

[32]        
Dr. Horner is not an orthopedic surgeon. However, he is the best‑placed
expert to comment on causation of injuries from the car accident, given that he
has personally treated Mr. Willis before and after both the work accident
and the car accident.

[33]        
On balance, I prefer the assessment and the opinions of Drs. Grover and
Horner. Mr. Willis has clearly demonstrated a history of chronic pain,
anxiety, depression, and adjustment difficulties. He is overweight and
deconditioned. However, he has experienced some improvements from
physiotherapy, acupuncture, and start of a reconditioning gym program suggested
by a physical trainer.

Damages

1. Non‑pecuniary

[34]        
There has been curtailment in Mr. Willis’ social and recreational
activities since the May 1, 2012 motor vehicle accident. Had he pursued
more vigorously the recommended surgical procedure later performed by Dr. Sahjpaul
in April 2014, the extent of his pain and suffering and loss of amenities time,
attributable to his neck and right arm, would have been shortened. That
constitutes a failure to mitigate. Accordingly, I assess what would otherwise
be an appropriate award at $25,000 to be reduced by $5,000, and therefore, fix
the amount at $20,000.

2. Loss of earning capacity

[35]        
In closing submissions, plaintiff’s counsel abandoned the plaintiff’s
original claim of past earning capacity loss. With respect to future loss of
earning capacity, Dr. Horner’s opinion is, and I quote:

Were it not for the motor vehicle
accident Mr. Willis would likely have been able to resume his occupation
as a custodian. The motor vehicle accident caused him to be off work to the
present with the limiting factors being mid and low back pain. He is not able
to perform an occupation in the future that involves heavy lifting or
repetitive bending or twisting. He will not be able to return full time to his
custodial work. The expected duties he would be able to perform would probably
be light duties only and for reduced hours such as four hours per day. The
career limitations caused by the motor vehicle accident will probably be
permanent.

[36]        
Dr. Grover’s opinion is, and I quote:

The [car] accident has very
severely impaired his employment prospects. He used to work as a Janitor in a School
District. By way of education and training, physically demanding jobs are all
he can do. With his present state of chronic pain, it is exceedingly unlikely
that he will be able to return back to that kind of work for the foreseeable
future. It is therefore my opinion that his employability has been affected
permanently by the stated accident.

[37]        
Utilizing a diminished capital asset approach, with consideration of
factors such as whether the plaintiff has been rendered less capable overall of
earning income from all types of employment, is less marketable or attractive
as a potential employee, has lost the ability to take advantage of all job
opportunities that might otherwise have been open, and is less valuable to
himself as a person capable of earning income in a competitive labour market, I
think the appropriate measure of loss should be fixed by an award equivalent to
the plaintiff’s last full year employment income amount of $30,000.

3. Special damages

[38]        
Mr. Willis has paid $585 for physiotherapy sessions and I would fix
that amount for reimbursement.

4. Future care costs

[39]        
Mr. Willis testified that he would like to continue physiotherapy
sessions which he found to be beneficial. Dr. Horner also recommended
counselling and vocational retraining. Plaintiff’s counsel suggested $5,000 and
I agree that amount is reasonable.

Conclusion

[40]        
Mr. Willis is awarded the following:

              
1.         
Non‑pecuniary damages, $20,000

              
2.         
Future loss of earning capacity, $30,000

              
3.         
Special damages, $585

              
4.         
Future care costs, $5,000

Total, $55,585

[41]        
The plaintiff is also entitled to court order interest on applicable
items.

[42]        
Is there an issue as to costs?

[43]        
UNIDENTIFIED COUNSEL:  No, My Lord.

[44]        
THE COURT:  In that case, costs will follow the event.

[45]        
UNIDENTIFIED COUNSEL:  My Lord, this is a Rule 15 matter, so they
are fixed, as per the rules.

[46]        
THE COURT: All right.

“Wong
J.”