IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110706

Docket: M100793

Registry:
New Westminster

Between:

Jessica Crane

Plaintiff

And

Joo Hyang Lee

Defendant

Subject
to Rule 15-1

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]          
The plaintiff was injured in a motor vehicle accident when the
defendant’s car ran a stop sign, hitting the plaintiff’s car on the passenger
side and causing significant vehicle damage.  The plaintiff says the force of
the collision lifted her off her seat and threw her against the side. 
Liability for the accident is admitted.

[2]          
At trial almost six years later, the plaintiff testified that she still
has daily low back pain that is made worse by activity.  Her family physician
says she will always have pain and discomfort.  The defendant says the
plaintiff suffered only a minor injury in the accident and any present or
ongoing problems are unrelated.  The defendant relies particularly on the fact
the plaintiff sought very little medical care for her injuries.

The Plaintiff’s Evidence

[3]          
At the time of the accident, on February 4, 2005, the plaintiff was on
her way to work at a computer store.  She says she continued on to work, but
stayed for less than half an hour before she realized she was unable to
function.  The accident occurred on a Friday and the plaintiff says she spent
the weekend laying on the couch, feeling pain everywhere, including migraine
headaches and nausea.

[4]          
For the next six months, the plaintiff says she suffered “intense” daily
pain, primarily in the low back but also in the neck and upper back with
associated headaches.  She says that by early 2006, her pain had become less
severe, although it was still present daily.  By the end of the second year she
says there had been further slight improvement that allowed her to increase her
activity, although not to the pre-accident level.

[5]          
The plaintiff says she is able to stand in place for a maximum of one
hour before it becomes painful.  A strenuous day at work will also increase her
pain and she says she has no days that are completely pain free, although the
pain is sometimes minimal if she is not active.  She says the pain sometimes
prevents her from getting to sleep and requires her to take sleeping pills. 
She also takes over the counter pain medication, but has not filled most
prescriptions she has been given for other medication because she does not
believe stronger drugs are the answer.  She says there had been no improvement in
the year before trial.

[6]          
The plaintiff says that, before the accident, she was an avid horseback
rider and her rides usually involved taking the horse through a jumping course.
Although she has returned to riding, it no longer includes jumping, which she
believes would be too painful and too physically demanding.  She now limits
herself to dressage riding on flat ground, but even that causes pain the next
day.  Although she says she knows a day of riding will cause pain, she has made
the choice to do what she can.

[7]          
She says that she regularly snowboarded in the winter and wakeboarded in
summer, but has not attempted either since the accident.  Her prime fitness
activity before the accident, she says, was jogging or running, which she did
once or twice a week.  She says she has tried running occasionally since the
accident, but found it too painful, and now limits herself to walking.  By
about two years after the accident, her walking had increased to its present
level of about 30 or 40 minutes, three or four times a week.

[8]          
The plaintiff says she now finds it difficult to drive.  She says she
often has what feels like a panic attack, complete with sweating, shaking,
shortness of breath and a tight grip on the steering wheel.  On occasions when
she has to drive into Vancouver from her home in White Rock, she says that by
the time she arrives she is “so shaky and sweaty and stressed I don’t want to
do anything.”  She says she finds situations with cross traffic particularly
stressful.  Although counselling has been recommended, she says that after two
telephone sessions with a mental health counsellor she and  the counsellor
concluded that nothing more could be done.

[9]          
The plaintiff suffered a back injury in 1994, but says the pain from
that incident had generally resolved years before the accident at issue.  She
says she would sometimes have soreness with “extreme activities,” such as
several hours of horse jumping.  She also has a congenital curvature of the
spine.

[10]       
The plaintiff’s evidence of her pre-accident lifestyle and current
limitations was supported by Ngaire Afele, who says she has known the plaintiff
for about eight years and describes her as her best friend.  Ms. Afele
described frequent snowboarding and wakeboarding with the plaintiff before the
accident.  Now, she says, the plaintiff sometimes still accompanies her on
snowboarding trips, but stays in the lodge.  She also says the plaintiff has
not joined her in wakeboarding since the accident.

[11]       
Ms. Afele was the plaintiff’s roommate for about two years
following the accident and says she had to do all of the housework because of
the plaintiff’s back difficulties.  She has observed that the plaintiff still cannot
sit for long periods and complains constantly of back pain.  Ms. Afele has
also observed the plaintiff arriving at her home in an apparently agitated
state after driving there and says that when they now travel together the
plaintiff does none of the driving.

The Medical Evidence

[12]       
At the time of the accident, Dr. Charles King was the plaintiff’s
family doctor and had been all her life.  On the day of the accident she saw
another doctor in Dr. King’s office and she saw Dr. King about six
weeks later, on March 17, 2005.  Dr. King recorded complaints of pain in
the neck and upper back and he diagnosed neck and back strain.

[13]       
Dr. King’s records quote the plaintiff as saying her low back had
always hurt since the age of 14, but the plaintiff denies saying that.  She says
she reported low back pain that was similar to what she had experienced from
the earlier injury, not that it had been continuous.  Asked at trial about the
last recorded complaint of back pain in his pre-accident records, Dr. King
identified a note made in 1996.

[14]       
Dr. King saw the plaintiff for the last time on April 13, 2005,
when he again recorded upper back and neck symptoms with “no decreased range of
motion.”  He did not perform a neurological examination.  The plaintiff said
she did not see Dr. King again because she had wanted to find a doctor
closer to where she was living.

[15]       
Although Dr. King testified, he was not tendered as an expert and
he agreed that, not having seen the plaintiff since April, 2005, he would not
have sufficient information on which to base an opinion.

[16]       
The plaintiff first saw her new doctor, Dr. Field, in November of
2006, but did not mention the accident or back pain to him on that visit or on
a subsequent visit in April, 2007.  She reported the accident and her back pain
to Dr. Field for the first time in August 2007, when Dr. Field’s
notes refer to a “flare up” of low back pain.

[17]       
Dr. Field’s examination and testing on that occasion led him to
suspect possible nerve impingement or disc degeneration.  After two more visits
in the fall of 2007, the plaintiff did not see Dr. Field again until March
9, 2009.  Because she still complained of back pain, Dr. Field decided to
request a CT scan.  That scan was obtained in December 2009 and confirmed the
presence of a herniated disc in the low back.

[18]       
Dr. Field’s opinion is that the accident has contributed to the
plaintiff’s low back symptoms which, given the CT scan findings, will not
subside.  He says

She will probably need surgical
intervention in the future.  She can probably manage her current lifestyle with
limitations… but will always be afflicted with pain and daily discomfort.

[19]       
On cross-examination, Dr. Field said he could not rule out the
possibility that the disc herniation occurred sometime after the accident, but
said he can only base his opinion on the history provided by the plaintiff and
his own clinical findings.  Asked if Dr. King’s early assessment of a
grade one sprain was consistent with a disc herniation being present at that
time, Dr. Field said the tests necessary to diagnose a possible disc
herniation would not necessarily be performed in response to initial complaints
of back pain.  Further investigation is done if the pain doesn’t subside after
a few months.  Dr. Field was also asked about the plaintiff’s congenital
spine abnormalities and said he would not expect them to cause the degree of
pain that she has.

[20]       
Questioned about the long gaps in the medical record, the plaintiff said
she knows that the medical system is overburdened and she saw no reason to
complain constantly about a known condition.  Dr. Field testified that the
plaintiff became used to her pain and agreed there was no point in her
repeatedly coming to a doctor for the same complaint.

[21]       
At the opening of the trial, counsel for the plaintiff objected to and sought
a ruling on the admissibility of a medical report that the defendant intended
to rely upon.  The report had not been served within the 84 days required by
Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.  Counsel
for the defendant relied upon rule 11-6 (4), which reads:

(4)        Unless
the court otherwise orders, if a party intends to tender an expert’s report at
trial to respond to an expert witness whose report is served under subrule (3),
the party must serve on every party of record, at least 42 days before the
scheduled trial date,

(a)        the responding report,
and

(b)        notice that the responding
report is being served under this rule.

[22]       
 Rule 11-6 (4) is intended to apply only to evidence that is truly
responsive or in rebuttal to specific opinion evidence tendered by the opposite
party.  It is not intended to provide defendants with a general exemption from
the basic time limit for serving expert reports that is set out in Rule 11-6 (3). 
Defendants who delay obtaining or serving expert evidence until after the
plaintiff’s opinions have been received, then attempt to introduce all of their
expert evidence as response, do so at their peril.

[23]       
In this case, I found that the report was not limited to true responsive
evidence.  It stated the author’s opinion on the nature and cause of the
plaintiff’s injury−the central issue that both sides had to address from
the outset−and was based upon a review of all the medical records,
including some not referred to by Dr. Field in his report.  As such, I
considered it to be a free-standing medical opinion that ought to have been
served pursuant to Rule 11-6 (3).  I ruled the report inadmissible, with the
result that there was no expert evidence before me to contradict Dr. Field’s
opinion.

Credibility

[24]       
The defendant relies on the fact that the plaintiff’s initial
complaints, as recorded in the medical records, appeared to be minor and to
improve over the first two months, after which the plaintiff did not report
back pain to any doctor for more than two years.  Counsel suggests this is
consistent with a minor injury that resolved and the plaintiff’s ongoing
complaints are either exaggerated or due to an unrelated cause.  He also points
out that initial complaints were of upper back and neck pain, while Dr. Field
has dealt primarily with complaints in the low back.

[25]       
An absence of medical records does not, in and of itself, prove an absence
of injury.  In Myers v. Leng, 2006 BCSC 1582, Gropper J. said:

[50]      I am not troubled by
the gap in the plaintiff seeking treatment.  His decision not to continue to
see a doctor about his neck and back complaints was clearly based on a
reasonable conclusion that the doctors could only provide temporary relief from
the pain by prescribing medication and physiotherapy.  The plaintiff did not
consider either to be helpful.  It is a sensible and practical approach to
medical treatment.  If continuous medical treatment can cure you, or make you
feel better, then it is worthwhile to attend on a regular basis.  If it cannot,
there really is no point in taking the doctor’s time.  The purpose of a seeing
a doctor is not to create a chronicle of complaints for the purpose of proving
that you have ongoing pain from an injury arising from a motor-vehicle
accident.  Rather than detract from the accuracy of the plaintiff’s complaint,
I consider the plaintiff’s course of conduct, in not seeing the doctor on a
continuous basis, to enhance his evidence.

[26]       
I made similar comments in Edmondson v. Payer, 2011 BCSC 118 [Edmondson]:

[37]      […] There certainly
may be cases where a plaintiff’s description of his or her symptoms is clearly
inconsistent with a failure to seek medical attention, permitting the court to
draw adverse conclusions about the plaintiff’s credibility.  But a plaintiff
whose condition neither deteriorates nor improves is not obliged to constantly
bother busy doctors with reports that nothing has changed, particularly if the
plaintiff has no reason to expect the doctors will be able to offer any new or
different treatment.  Similarly, a plaintiff who seeks medical attention for
unrelated conditions is not obliged to recount the history of the accident and
resulting injury to a doctor who is not being asked to treat that injury and
has no reason to be interested in it.

[27]       
The facts of this case come close to the first situation referred to in Edmondson. 
While I understand the plaintiff not returning to Dr. King and not initially
seeking other medical advice for treatment of an ongoing condition, I am
troubled by the fact that she waited so long before making her new doctor aware
of that condition and its history.

[28]       
However, that is only one factor to be weighed in the Court’s overall
assessment of the plaintiff’s credibility.  The plaintiff said she did not seek
more medical attention because she did not think there was anything doctors
could offer her.  That was not an unreasonable position, given her prior
experience with a back injury.  Dr. Field testified that he did not
believe further visits to him had been necessary.

[29]       
I found the plaintiff to be a very forthright and credible witness,
whose evidence was unshaken by good, vigorous cross-examination.  Her evidence
of the difficulties and limitations she now experiences was supported and
confirmed by the evidence of her friend, Ms. Afele.  For what it is worth,
I also observed the plaintiff to be in apparent discomfort in the witness box,
changing between standing and sitting positions.

Findings on the Plaintiff’s Injury

[30]       
The uncontradicted opinion of Dr. Field attributes the plaintiff’s
condition to the accident.  In giving that opinion, Dr. Field had reviewed
the records and was fully aware of the nature of the complaints and findings
recorded on the plaintiff’s initial visits to Dr. King’s office.  Of course,
Dr. Field was also fully aware of the time that elapsed before the
plaintiff reported back problems to him.

[31]       
It may be that, prior to the February 2005 accident, the plaintiff
suffered from some recurring back pain related to her previous injury or her
congenital condition, but if such pain was present she had clearly learned to
live with it and ignore it.  The pain that the plaintiff has experienced since
the accident has affected her activities and lifestyle in ways that any
pre-existing pain did not.

[32]       
While Dr. Field agreed that it is possible the plaintiff’s disc
herniation occurred sometime after the accident, there is no evidence of any
other incident or injury to which it can be attributed.  I therefore find that,
on the balance of probabilities, the disc herniation would not have occurred
but for the accident.

[33]       
On review of all the evidence, I find that the accident for which the
defendant has admitted liability caused soft tissue injuries to the plaintiff’s
neck and upper back, which eventually resolved, and a herniated disc in the
lower back that continues to cause pain and limitation.  To the extent that the
accident may have aggravated a pre-existing condition, I find that in the years
immediately preceding the accident that condition was minimally symptomatic and
there is no evidence that it would likely have become worse but for the
accident.  I accept the uncontradicted evidence of Dr. Field that the
plaintiff’s current pain is likely to be permanent.

Income Loss and Loss of Capacity

[34]       
The plaintiff claims damages for past income loss and loss of future
earning capacity.  That claim is supported by the evidence of Katie Barr, an
occupational therapist who performed a physical capacity evaluation in April,
2009.  Ms. Barr noted that the plaintiff was limited in a number of
physical activities and said she will have difficulty in any jobs that require
sustained postures such as sitting, standing, reaching or bending.  She says
the plaintiff is able to perform “light strength” work, but:

…she may require a flexible
employer who would permit her take rest breaks and/or modify her work positions
as required; she may also require assistance from co-workers to help with some
of the heavier or more prolonged job tasks.  Finally, it would be reasonable to
assume that Ms. Crane may have to by-pass work opportunities where job
demands require greater amounts of sitting (such as when travelling for work)
or greater physical demands.

[35]       
At the time of the accident, the plaintiff was working at a computer
store, performing sales and office management duties.  Her job required her to
be on her feet for most of the day and included carrying computers.  She says
that she could perform the physical aspects of her job without difficulty
before the accident, but after the accident she could no longer stand for the
length of time required and was unable to carry computers for customers.  She
says her employer tried to be sympathetic but was frustrated and had to get
extra help to do things she was unable to do.  However, the plaintiff only
missed two days of work following the accident.

[36]       
She has since worked in a series of different jobs, all in the computer
sales field, and says she continued to have difficulty with lifting, carrying
and prolonged standing.  However, her current position as a service adviser
involves fewer of those demands and allows more opportunity to move around and
change positions during the day.

[37]       
The plaintiff’s income has remained at generally the same level as
before the accident, but she says that at one point she was offered a job that
would have increased her income by at least 30 percent.  She said she had to
turn down that job because it would have required her to drive throughout the
lower mainland.

[38]       
The job the plaintiff turned down involved selling electronic products
to retail computer stores.  Most of the income would have been in the form of
commissions, based on new accounts that were opened.  The plaintiff’s estimate
of the income she could have earned assumes that she would have met the sales
quota established by the employer.

[39]       
The plaintiff’s opinion that she would have easily met the sales quota
is the only evidence of what she might have earned.  There is no evidence of
the success, or lack of it, that others have had selling those products, of the
demand for the employer’s products or of the competitive environment in which
the plaintiff would have operated.  There is no evidence of whether the
prospective employer is still in business.

[40]       
The plaintiff’s claim for past loss of income based on what she might
have earned in that job is entirely speculative and, on the balance of
probabilities, I am not persuaded that the plaintiff has suffered a loss of
past income as result of her injuries.

[41]       
However, I am satisfied that there has been a diminution of the
plaintiff’s earning capacity.  In order to establish such a claim, the
plaintiff must prove that there is a real and substantial possibility of income
loss in the future: Perren v. Lalari, 2010 BCCA 140.  The plaintiff has
continued to work in the same field she worked in before the accident, but has
had to find ways to avoid or obtain help with certain activities.  That
limitation has not prevented her from maintaining her income at the
pre-accident level.

[42]       
The plaintiff has changed jobs a number of times since the accident. 
The evidence is unclear as to whether those job changes were related to the
plaintiff’s physical condition or were a normal feature of the industry in
which she works.  I take judicial notice of the fact that small retailers of
the kind the plaintiff has worked for tend to come and go, particularly in a
field involving ever-changing, high technology products.  I find that the
plaintiff’s pattern of relatively frequent job changes, resulting from either
necessity or opportunity, is likely to continue.

[43]       
When that need or opportunity arises, there is a real and substantial
possibility that the plaintiff’s physical limitations may limit her ability to
accept some positions and make her less attractive to some employers.  I make that
finding based on the plaintiff’s own description of her pain and difficulties,
the evidence of Dr. Field, including his opinion of the need for future
surgery, and the capacity evaluation and opinion of Ms. Barr.

[44]       
 The plaintiff is still young and the period over which she might
experience income loss is a long one.  On the other hand, she has so far been
able to maintain her income level through a series of job changes and, for the
moment at least, has been able to find a position that is more suited to her
physical limitations.  Weighing all these factors, I assess her lost earning
capacity at $70,000, which represents roughly two years of income at her
current level.

Non-Pecuniary Damages

[45]       
The injury the plaintiff suffered has had a significant impact on her
enjoyment of life.  She has back pain on a daily basis, fluctuating according
to her activities.  She has lost what was formerly a very active lifestyle,
giving up some activities that she formerly enjoyed, while continuing some
others on a reduced level, accepting the trade-off of increased pain.  The only
medical evidence before me is that this condition is likely to be permanent. She
also suffers severe anxiety while driving, particularly in situations similar
to those that gave rise to the accident, although there is no evidence that this
condition is necessarily permanent.

[46]       
Counsel for the plaintiff relies on cases involving injuries of similar
and in some cases lesser severity in which plaintiffs were awarded
non-pecuniary damages in the $75,000 to $100,000 range.  These cases include Dawson
v. Gee, 2000 BCSC 147; Fox v. Danis, 2005 BCSC 102; Majer v. Beaudry,
2002 BCSC 746; Prince-Wright v. Copeman, 2005 BCSC 1306; and Raun v.
Suran, 2010 BCSC 793.

[47]       
Counsel for the defendant argues for non-pecuniary damages in the $2,000
to $6,000 range, based on minor, short term soft tissue injuries.  That
submission is clearly untenable in view of the factual findings I have made.

[48]       
Counsel for the defendant also argues that, if the plaintiff suffered a
substantial injury, she has failed to mitigate her damages because she has not
pursued physiotherapy, chiropractic treatment or counselling, all of which Dr. Field
has recommended at some point.  When she was asked specifically about
physiotherapy, the plaintiff said she could not afford it and the defendant’s
insurer refused to pay for it.  While it may have been advisable for the
plaintiff to attempt some or all of these treatments, there is no medical
opinion evidence of how effective, if at all, they might have been.  In the
absence of such evidence, I am not prepared to reduce the plaintiff’s damages
for failure to mitigate.

[49]       
Taking into account the effect of the plaintiff’s injuries on her
lifestyle, the permanent nature of her pain and the psychological impact,
including her driving anxiety, and considering the cases cited, I assess the
plaintiff’s non-pecuniary damages at $100,000.

[50]       
I was told that special damages were agreed at $285.  The plaintiff is
entitled to costs at scale B, unless counsel need to speak to matters of which
I am unaware.

“N.
Smith J.”