IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100129

Docket:
082766

Registry: Victoria

Between:

Amanda Lynn Dutchak

Plaintiff

And

Michael Thomas Fowler and Agnes
Carty

Defendants

Before: The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
The plaintiff Amanda Lynn Dutchak sues for
damages for injuries she suffered in a motor vehicle accident.  The defendants
admit they are fully responsible for the accident.

[2]            
On July 4, 2006, Ms. Dutchak was the driver of a
1998 Ford Taurus station wagon.  She stopped on Wilkinson Road in Victoria behind
an automobile which was turning.  The defendant, Michael Thomas Fowler, was
unable to stop his vehicle in time to prevent it from hitting the rear-end of Ms.
Dutchak’s vehicle.  Ms. Dutchak’s son Brody was in an infant’s seat in the
backseat of her car but was not injured.

[3]            
The impact of the collision caused approximately
$4,000 damage to Ms. Dutchak’s vehicle.  Although there is some uncertainty as
to the specifics of the damage, I am satisfied that the vehicle suffered
extensive damage including a bent frame.

[4]            
At the time of the accident Ms. Dutchak felt
pain in her neck, shoulder and arms.  She was taken to the emergency ward at
Victoria General Hospital and was released the same day.  At the emergency ward
Ms. Dutchak was given Tylenol and Robaxacet.

[5]            
When she went to see her family doctor, Dr.
Lenser, on July 18, 2006.  Ms. Dutchak reported general soreness over much of
her upper body.  She was experiencing some pain in her lower back which
appeared to be radiating from her upper back.  At that time she complained of
neck pain which was worse on the left side than on the right.  Her abdominal
muscles were sore.  In addition, she complained of posterior headaches
radiating from the neck.

[6]            
On July 16, 2006, between the time of the
accident and the first visit to Dr. Lenser, Ms. Dutchak attended a walk-in
clinic where a doctor prescribed Tylenol No. 3 and Flexeril for her pain.  When
she saw Dr. Lenser on July 18 she had been taking up to 5 Tylenol 3’s per day
and two Flexeril tablets at night to help her to sleep.  Dr. Lenser observed
that Ms. Dutchak had a good range of motion of her shoulder, back and arms. 
She also had a 75% normal range of motion of the neck in flexion, extension,
lateral rotation and lateral flexion bilaterally.  Ms. Dutchak reported that
the pain was worse with lateral rotation of the neck.

[7]            
Dr. Lenser diagnosed Ms. Dutchak as having
cervical muscle strain, biceps and muscle forearm strain with upper back pain
secondary to the motor vehicle accident.  Dr. Lenser advised Ms. Dutchak to
continue with Tylenol 3 and Flexeril for comfort.  She also advised massage
therapy and physiotherapy.  Dr. Lenser did not consider it necessary to order
any x-rays or MRI’s.

[8]            
Ms. Dutchak saw Dr. Lenser again on July 25,
2006.  At that time, she reported having on-going pain in her shoulders, neck
and back as well as tension headaches.  By that time her neck range of motion
had increased to 80% of normal although she continued to report general
soreness and tenderness.  Dr. Lenser gave Ms. Dutchak a prescription for
massage therapy and advised her to continue taking Ibuprofin (400 mgs.) three
times a day, and Flexeril and Tylenol 3 as needed.

[9]            
Dutchak saw Dr. Lenser again on August 8, 2006. 
By that time she had gone on three 10 km bicycle rides but was unable to pull
her son along behind her.

[10]        
On August 23, 2006, Ms. Dutchak reported to Dr.
Lenser that her pain had improved overall in her neck and back but that
physical activity aggravated the pain.  She felt that her activity level was
40% of normal but she had gained 12 pounds since the time of the accident due
to inactivity.

[11]        
By the end of August 2006 Ms. Dutchak felt that
her general stiffness had begun to ease.  However, her low back continued to be
sore and she became irritable with Brody and her husband, something which was
very uncharacteristic of her personality.

[12]        
In October or November of 2006, Ms. Dutchak
continued to have on-going headaches, neck and shoulder pain.  She testified
that resumption of her pre-collision activities resulted in a worsening of her
headache and pain and muscle spasms in her neck, shoulder and lower back.  She
reported this pain as being between 7 out of 10, and a 10 out of 10, with 10
being the worse pain imaginable.  She continued to take Ibuprofen, Tylenol 3,
Robaxacet and Naproxen.  She testified that she was limited in her ability to
lift over 10 pounds and do heavy housework such as laundry and vacuuming.  She
was also unable to engage in active physical play with Brody.

[13]        
By early 2007, Ms. Dutchak had begun to make
significant improvement.  Her headaches became less frequent but would continue
to be severe when they came on.  The pain in her neck and shoulders became less
acute but would flare-up with physical activity.

[14]        
Approximately one year after the accident, Ms.
Dutchak felt much better.  She was doing yoga, swimming and running. She
reported persistent headaches only every two weeks and pain in her neck and
shoulders, especially with biking and running on pavement. She continued taking
pain medications regularly and needed sleeping pills about once a month when
her pain prevented her from sleeping.  She tried to keep as active as possible,
even though this resulted in increased pain.

[15]        
Ms. Dutchak enrolled in and attended Camosun
College from April 2007 to May 2008 in the Resident Care Attendant (“RCA”)
Program.  She reported some difficulty in the class looking from her notes to
the blackboard and said that she missed several days during her practicum due
to acute headaches and neck, shoulder and upper back pain flare-ups.  She
obtained her RCA Certificate in May 2008 and commenced work as an RCA at
Saanich Peninsula Hospital (SPH) on June 3, 2008. 

[16]        
As of January 2008, Ms. Dutchak said that her
symptoms had stabilized.  Since that time, she has continued to experience
tightness and stiffness in her neck and shoulders on a daily basis, which
increases to significant pain when she engages in physical activities or stays in
a stationary position for long periods.

[17]        
This pain incapacitates her about every six
weeks for from one to three days. She experiences a severe headaches every 6
weeks with will “flatten her” for one to three days at a time. Her pain wanes
and waxes.  She described it as varying from a 2 out of 10 to a 10 out of 10.  This
pain pattern has not changed for the past two years.

[18]        
Ms. Dutchak continues to take prescription
medication (Naproxen, Tylenol with Codeine, Nortriptyline) and non-prescription
medication (Ibuprofen, Robaxisol) for pain control.  She adheres to a
stretching program provided to her by Dr. McCluskey as well as regular
exercise, as has been advised by her treating physicians. Although her pain
level has not improved, she feels that maintaining her activity is very
important to maintaining who she is and managing the emotional consequences of
her injury and pain.

[19]        
Before the accident Ms. Dutchak was a healthy,
energetic and extremely fit young woman.  She did occasionally seek
chiropractic treatment and did report soreness from time to time.  However
those complaints were neither chronic nor debilitating.  She was married and
had a young son for whom she had primary child care responsibility as a
stay-at-home mother.  Her husband was also very fit and placed a high value on
vigorous physical activity.  He and Ms. Dutchak spent most of their leisure
time participating in activities such as long distance running and cycling. 
Ms. Dutchak regularly participated in long distance running events including
half marathons.  I have no doubt that she derived much of her self-esteem and
enjoyment of life from these activities and the effect that these activities
had on her relationship with her husband.

[20]        
Ms. Dutchak’s evidence is that her life has been
seriously affected by the injuries she suffered in the motor vehicle accident. 
However she is able to engage in physical activities which require strength,
stamina and endurance far beyond that of an average person of her age.

[21]        
Ms. Dutchak’s complaints are largely subjective
in that there is little or no objective clinical evidence of an underlying
organic injury.  It is therefore necessary for me to carefully consider the
reliability of her evidence.  I have concluded that Ms. Dutchak is an honest
witness who is genuinely experiencing the pain and discomfort she reports.  I
heard evidence from a number of doctors in this case.  None of them suggested
that Ms. Dutchak is not genuinely experiencing the pain she reports.  Of course
they, like me, must rely principally on what Ms. Dutchak tells them to support
their opinion.

[22]        
While I accept that Ms. Dutchak has genuine
symptoms, I do have some concerns that she has unrealistic expectations about
the consequences of the physical activities in which she engages.  Ms. Dutchak
runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays
squash three times a week and cycles for long distances on a regular basis. 
These activities undoubtedly cause physiological stresses on her anatomy.

[23]        
It is apparent that engaging in these physical
activities is an important part of Ms. Dutchak’s relationship with her
husband.  Both Ms. Dutchak and her husband continue to place a high level of
importance on physical activity and a good deal of their personal interactions
with one another revolves around physical fitness and exercise activities.  In
addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24]        
I have concluded that Ms. Dutchak is now able to
engage in almost all of the activities she did before the accident, but at a
price.  That price is a much higher level of pain and discomfort than before
the accident.

[25]        
The preponderance of evidence before me
satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely
disappear.  However, I am also of the view that there is a reasonable
possibility that she will experience some continued improvement as she adjusts
to her altered circumstances.

[26]        
In this case, I heard evidence from a number of
physicians, including Dr. Paddy McCluskey, Dr. Rose Lenser, Dr. Gordon Robinson
and Dr. Michael Gilbart.  I need not refer to their evidence in detail in these
reasons.  I think that Dr. Gilbart’s opinion sums up the consensus opinion of
the physicians.  Dr. Gilbart states that there are no objective abnormalities
on physical examination of Ms. Dutchak but she still continues to experience
pain.  His view, which is shared by Dr. McCluskey, is that Ms. Dutchask will
continue to suffer neck pain and headaches for the foreseeable future.

[27]        
When he prepared his medical report in February
2008, Dr. Robinson was somewhat more optimistic about Ms. Dutchak’s long term
prospects for recovery.  At that time he was of the view that Ms. Dutchak would
probably recover completely within 3 to 5 years.  However, at trial he
testified that it is unusual to see significant improvement in cases involving patients
who continue to experience pain more than 2 years after an accident.  In his oral
evidence, he expressed the opinion that Ms. Dutchak should expect to continue
to experience the pain and the symptoms she reported indefinitely.  I take this
evidence to be consistent with that of Drs. McCluskey and Gilbart.

[28]        
In the result, I conclude that Ms. Dutchak has
suffered soft-tissue injuries to her upper back, shoulders and neck which have
resulted in stiffness, pain and headaches, all of which are significantly
aggravated by strenuous physical activity.  She continues to experience those
symptoms.  My conclusion is that there is some prospect of continued improvement
but that in assessing damages in this case, I should proceed on the basis that
Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other
hand, I also conclude that Ms. Dutchak is now able to perform virtually all of
the tasks and activities that she did prior to the accident and, in particular,
is able to engage in vigorous physical activity.  In carrying out these
activities she has no mechanical limitations.  The only restriction on these
activities is the pain which they cause. 

[29]        
I have also concluded that Ms. Dutchak is highly
motivated to continue with these activities and, in fact, is continuing to
perform and engage in them notwithstanding the level of pain and the headaches that
she experiences as a result.

NON-PECUNIARY
DAMAGES

[30]        
Counsel for the plaintiff and defendant referred
me to a number of cases dealing with the issue of non-pecuniary damages.  In my
view, this case is one in which an award of non-pecuniary damages should be at
the lower end of the range for cases involving chronic pain.  I say this
because Ms. Dutchak is able to engage in all of the activities she formerly did
with the assistance of analgesic medicines and in the full knowledge that
engaging in activities will often trigger pain for her.  In all the circumstances
I award Ms. Dutchak $45,000 for non-pecuniary damages.

PAST INCOME LOSS

[31]        
Ms. Dutchak makes a claim for past income loss
from June 2008 to the time of trial.  The claim for past income loss and the
claim for loss of income earning capacity raise similar factual issues in this
case.

[32]        
As outlined above, from 2007-2008 Ms. Dutchak
began and completed a course at Camosun College in the RCA Program.  She
obtained her RCA Certificate in May 2008.

[33]        
Ms. Dutchak’s evidence is that when she began
that program she expected a complete recovery from her injuries.  Despite the
fact that her symptoms did not disappear completely she continued in the course
and applied for and obtained employment as an RCA with the SPH in June 2008. 
She has been employed on a part-time casual basis at that hospital since that
time.

[34]        
Ms. Dutchak states that she has chosen to work
on a part-time casual basis mainly because it suits her present circumstances
and, in particular, accommodates her child care responsibilities.  She testified
that it was her intention to increase her hours once Brody was enrolled
full-time in school.  In her evidence she stated that she would like to work
more shifts than she has worked and is currently working.  She testified that
if she works more than two or three days in a row she is a “write-off” at
home.  By this I take it that she means that she is unable to undertake the
activities she enjoys or is required to undertake as a parent because of
headaches and severe pain in her neck and upper back.

[35]        
The parties are agreed that Ms. Dutchak’s rate
of pay at SPH was $21.37 per hour plus 12.2% in lieu of holidays and statutory
pay from June 3, 2008 to April 30, 2009, and $21.94 plus 12.2% per hour from
May 1, 2009 on.

[36]        
In her submissions, Ms. Dutchak’s counsel
submitted that as a result of the injuries Ms. Dutchak suffered in the motor
vehicle accident she was forced to turn down between one and two shifts per
week which were otherwise available to her.

[37]        
Ms. Dutchak did agree in her evidence that there
were occasions on which she declined work because of parenting responsibilities
or for reasons other than poor health.  She is, therefore, in a somewhat
different position from an employee who has either full or part-time set hours at
which she is expected to be present in the ordinary course.  She is also fortunate
not to be driven by economic necessity to accept shifts where she does not feel
well enough to cope.

[38]        
I am satisfied that Ms. Dutchak has suffered
some loss of past income but for the reasons indicated above it is difficult to
assess that loss with any precision.  The evidence in this case, and in
particular the casual nature of Ms. Dutchak’s employment and her personal circumstances
have led me to conclude that it is inappropriate to adopt an arithmetical or
calculation approach in assessing her damages for past income loss.  Instead, I
think it is appropriate to assess them on a lump sum basis broken down between
the calendar years 2008 and 2009.  In assessing this lump sum I, of course,
have taken into account Ms. Dutchak’s rate of pay and overall work pattern in
that period of time.

[39]        
 In all of the circumstances, I assess Ms.
Dutchak’s past income loss at $7,500.  For the purpose of determining the required
adjustment for income tax I allocate the award on the basis that $3,250 is
attributable to the period June 3, 2008 to December 31, 2008 and $4,250 is
attributable to the period January 1 to December 31, 2009.  If counsel are
unable to agree on the appropriate adjustment for income tax they may make
further submissions.

LOSS OF FUTURE INCOME EARNING CAPACITY

[40]        
To make an award of damages for loss of future
income earning capacity I must be satisfied that Ms. Dutchak has established a
substantial possibility that as a result of the injuries she suffered in the
accident her capacity to earn income has been impaired.  It is not necessary
for Ms. Dutchak to establish that it is probable that she will suffer a loss of
income in the future as a result of her injuries only that there is a
substantial or real possibility that that will be the case. Rosvold v.
Dunlop 2001 BCCA 1.

[41]        
I am satisfied that Ms. Dutchak has established
some minimal impairment of her future earning capacity, particularly in
occupations which require physical strength or endurance.  Ms. Dutchak,
however, did strike me as being an intelligent and capable individual who is
already in the course of considering alternative occupations, such as a
licensed practical nurse, which may in fact be more remunerative than her
present occupation as an RCA.

[42]        
In her submissions, Ms. Sheane presented me with
a scenario for assessing damages for loss of future income earning capacity
based on the cost of Ms. Dutchak upgrading her skills to that of a licenced
practical nurse.  The evidence before me was that the duties of a licenced
practical nurse are less physically demanding than those of a RCA and that Ms.
Dutchak feels she would be better able to cope with those duties.  The wages
earned by a licenced practical nurse are greater than those of a RCA.

[43]        
Ms. Dutchak’s costs to become a licenced
practical nurse, inclusive of lost income while taking that course, would be in
the range of $46,000 to $55,000.  However, I think that there is a substantial
possibility that Ms. Dutchak would have pursued the licensed practical nurse
course even if she had not suffered injuries in the motor vehicle accident.  I
say this because Ms. Dutchak is a young, intelligent and motivated individual
whom I conclude would be anxious to improve her earnings in any event.  Given
the uncertainty of the evidence with respect to the impact of the accident on
Ms. Dutchak’s earning capacity, the reasonable possibility that she would have
upgraded her skills in any event and the evidence that a significant
contributing factor limiting Ms. Dutchak’s employment is the effect it has on
her social and family life outside of work, I conclude that an appropriate
award for loss of future income earning capacity is $25,000.

SPECIAL DAMAGES

[44]        
Ms. Dutchak claims special damages of $8,025.18. 
Mr Farquhar does not dispute that Ms. Dutchak has incurred expenses for
treatment but submits that any medical treatment, medications or therapies
undergone by Ms. Dutchak after December 31, 2008 cannot be causally linked to
the accident and are therefore not compensable.   If I accept this submission
it would result in a reduction of $729.26 in the amount claimed, reducing the damages
to $7,295.18.

[45]        
I do not accept that the special damages should
be cut off arbitrarily at December 31, 2008.  I can see no clear demarcation
line for purposes of deciding when such treatments are reasonably necessary in
this case.  I think it more appropriate to deal with this issue when
considering the question of damages for future care.

[46]        
I therefore assess special damages in the amount
of $8,025.18.

COST OF FUTURE CARE

[47]        
I am not persuaded that Ms. Dutchak has
established a sufficient foundation for an award of damages for future Chiropraxy
or IMS treatments.  I think that the temporary symptomatic relief that Ms.
Dutchak gets from these treatments cannot be linked to the injuries she
suffered in the accident with sufficient certainty to make the defendants
responsible for them.  I am not persuaded that these treatments are medically
necessary or provide anything more than solace for Ms. Dutchak.  In addition, I
do not think that Ms. Dutchak has established that the complaints for which she
will seek these treatments in the future will be related to the accident and
not to the normal wear and tear on her body caused by the physical activities
in which she will continue to engage.

[48]        
However, I have concluded that the claim for
medications should be allowed in the amount sought.  It seems to me that the
pain experienced by Ms. Dutchak is caused by the accident and that the
medication both assists her to cope with the pain and to continue to engage in
her pre accident activities.  I therefore find that an annual expenditure of $105.14
per year for these medications is appropriate. 

[49]        
I did not understand Mr. Farquhar to contest the
present value calculations submitted by Ms. Sheane.  Applying that calculation
to the amount awarded and rounding the result I assess the present value of the
cost of future care at $2,500. If the parties are unable to agree on an
appropriate gross up they may make further submissions.

SUMMARY OF DAMAGES

[50]        
I assess Ms. Dutchak’s damages as follows:

[51]        
I consider this overall award to be appropriate
given the findings I have made above.

[52]        
The statement of claim states that this action
is subject to Rule 66.  Based on that endorsement I award costs to the
plaintiff in the amount of $8,200 to take into account the third day of trial plus
disbursements.  The parties will have liberty to apply to have the costs
assessed on some basis other than Rule 66(29).

“The Honourable Mr. Justice Sewell”