IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111212

Docket: M085541

Registry:
Vancouver

Between:

David Pearlman

Plaintiff

And

Phelps Leasing
Ltd. and Thanh Hoang Phan

Defendants

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
The plaintiff, Mr. Pearlman, is a 77-year-old retired lawyer who
represented himself on this claim for injuries allegedly suffered by him in a
motor vehicle accident on February 9, 2007 (the “2007 Accident”). The
defendants admit liability, but submit that the collision was minor in nature,
and any injuries of which the plaintiff complains pre-existed the 2007 Accident.

[2]            
In addition to the 2007 Accident, the plaintiff was involved in a prior motor
vehicle accident on November 25, 2004 (the “2004 Accident”) and more
recently, the plaintiff was involved in a motor vehicle accident in December
2010 (the “2010 Accident”). Accordingly, the issue in the case before me is
primarily one of causation; that is, what damages, if any, suffered by the
plaintiff were caused by the 2007 Accident.

Credibility

[3]            
The plaintiff’s credibility from the onset of the trial before me
through to its conclusion dissipated like aspirin in a glass of water until all
that remained was a murky, cloud-like substance. Amongst his many
inconsistencies and exaggerations, the most shocking was that the testimony of
his injuries in the trial before me was nearly identical to the testimony he
gave at the 2008 trial, in which he blamed the 2004 Accident for all the
problems he was experiencing in 2008.

[4]            
The only reliable evidence of the plaintiff’s injuries came from the
medical evidence. The only reliable evidence of the extent of impact of the
collision and damage to his vehicle came from the adjusters’ testimony. I do
not wholly discredit the defendant’s testimony, but he did show an inclination
towards self-preservation in failing to report to ICBC that the plaintiff complained
of injury at the accident site.

The Accident of February 9, 2007

[5]            
The plaintiff testified that he was driving alone in his 1993 Lincoln
automobile at about 11:00 p.m. on February 9, 2007. He stopped at a red light
at the intersection of 49th Avenue and Elliot Street in Vancouver. There were
three or four cars stopped ahead of him. He was looking forward when the
defendants’ Chevrolet Malibu suddenly “crashed” into him from behind. He felt a
sharp, wincing pain in his thoracic spine.

[6]            
The plaintiff said the Lincoln “conked out” and he had to restart it to
pull over and park. The defendant driver, Thang Hoang Phan, got out of his
vehicle and gave the plaintiff his driving licence information.

[7]            
The plaintiff testified that the defendant offered to show the plaintiff
the damage to the Malibu, but the plaintiff said he did not care as he was in
too much pain.

[8]            
On cross-examination, the plaintiff admitted that his vehicle was not
moved by the impact of the collision.

[9]            
The defendant testified that he was driving on 49th Avenue and came to a
stop behind four or five cars that had stopped at the intersection at Elliot
Street. The light turned green, and the cars proceeded, including the
defendant’s. The plaintiff, who was driving the car directly in front of the
defendant, came to a sudden stop and the defendant could not avoid bumping the
plaintiff’s bumper. The defendant said he braked immediately and “barely
touched the plaintiff.” The defendant said that the impact was so minor and the
plaintiff’s vehicle had so much previous damage on it, he could not see where
he had hit the plaintiff’s vehicle. Nothing in the defendant’s car had moved
about. The licence plate on the Malibu had a slight dent. They both got out of
their cars and exchanged information.

[10]        
The defendant testified that the incident was so minor that he did not
report it to the police or ICBC. He made an incident report for Budget Rental, who
was the registered owner of the Malibu. He recalled that the plaintiff
complained of back pain immediately after the accident, but the defendant did
not tell this to the adjuster because the plaintiff did not look injured.

[11]        
The adjuster’s evidence was that there were a few blue scuff marks on
the bumper of the plaintiff’s vehicle where the paint from the defendant’s
licence plate had transferred. There was a slight indentation on the
defendant’s licence plate.

[12]        
Based on the evidence of the parties, and the photographs and estimate of
minimal damage to the vehicles, I conclude that it is more likely than not that
this collision was minor in nature. The forces to the plaintiff’s body were
most likely minimal. The extent of the plaintiff’s injuries and complaints must
be viewed in this context (Cahoon v. Brideaux, 2010 BCCA 228).

Injuries

[13]        
The plaintiff testified that after the 2007 Accident he had sharp pain
in his lumbar area. He had trouble walking, sleeping and getting out of bed. He
had tremendous pain in his lower spine, neck and both legs. He also had
problems with his right shoulder. He testified that now he cannot hold his head
straight and he has plantar fasciitis and a calcaneal spur in his right heel.

[14]        
He did not go to the hospital after the accident. He did not see a
doctor for three days. He was prescribed painkillers but stopped taking them
because of side effects. He was prescribed physiotherapy but never attended any
physiotherapist.

[15]        
The plaintiff testified that after attending Dr. Hawk’s office on May
11, 2011, for an independent medical examination arranged by defendant’s
counsel, he felt much worse. In fact, he blamed Dr. Hawk for his current
problems which he self-diagnosed as sciatica, claiming at one point that Dr.
Hawk “crippled me in both legs.” He said that he has pain down both legs, but
especially the left, from buttocks to calf to toes, as he sits. He said he drags
his left leg when he walks and the pain worsens as the day goes on. He said he
had similar pain in both legs after the 2007 Accident, but that it had cleared
up. Now he is suffering the pain again since his visit to Dr. Hawk in May.

[16]        
In cross-examination he admitted to having suffered “significant
injuries” to his neck and back in the 2004 Accident for which he claimed
permanent physical impairment. The 2004 Accident claim was tried by jury in
2008 and dismissed. The plaintiff appealed unsuccessfully and was denied leave
to appeal to the Supreme Court of Canada. He also admitted having suffered
injury to his left knee and writing off his vehicle as a total loss as a result
of the 2010 Accident.

[17]        
The plaintiff testified that he used to be a champion speed skater,
whistler and dancer, but now he cannot partake in any of those activities. He said
after the 2007 Accident he could still skate recreationally and play hockey,
but since his visit to Dr. Hawk he cannot do any of those things. He has
trouble swallowing, walking and holding his head straight.

Employment

[18]        
As stated earlier, the plaintiff is a retired lawyer. He stopped
practising law in Manitoba in 1988 or 1989. Since then, until the 2007 Accident,
his only paid work involved looking after a dying friend for six months in lieu
of room and board. He received Manulife disability benefits from 1989 to 2002.
When Manulife terminated his benefits in 2002, he sued the company alleging
that he was permanently disabled from practising law.

[19]        
Since 2006, he has worked sporadically for his daughter who is a
property manager. At trial he produced invoices dated before, but mostly after,
the 2007 Accident. Most notably, it appeared that he was vacuuming hallways and
cutting lawns within days after the 2007 Accident through to August 2008, when
his daughter no longer needed his services.

Causation

[20]        
The plaintiff claims general damages for pain and suffering, cost of
future care at $5,000 per month (representing the fees of the Louis Briar
Seniors Home where the plaintiff would like to reside), loss of ability to earn
income in the future, and punitive damages due to Dr. Hawk’s maltreatment of
him.

[21]        
The plaintiff seemed unable to comprehend that by insisting that Dr. Hawk
was the cause of his current disability, he was exonerating the defendants of
liability for any injury of a permanent nature. By claiming damages in this
action for the same injuries as he claimed to have suffered in the 2004
Accident, he was once again exonerating these defendants as being the cause of
those injuries.

[22]        
The plaintiff’s simplistic position is that because his claim arising
from the 2004 Accident was dismissed, his injuries must be attributed to the
2007 Accident. This is not tenable. The failure to prove to the jury in 2008,
on a balance of probabilities, that he had suffered any damages due to injuries
sustained in the 2004 Accident, does not equate to proving that he suffered
those same damages as a result of the 2007 Accident. My task is to determine
what was his pre-2007 accident state, not what caused it, and what, if any,
damages were caused by the 2007 Accident.

Medical Evidence

[23]        
Even the plaintiff’s medical evidence was fraught with difficulty. The
defendants refused to pay for medical-legal reports, so he tried to rely on the
defendants’ expert reports without making these experts available for
cross-examination. In the end, the plaintiff called Dr. Hawk, an orthopaedic
surgeon, and the defendants called Dr. Keyes, a neurologist. In addition, the
defendants consented to the plaintiff filing late a report by Dr. Baird,
his general physician, without calling Dr. Baird for cross-examination, but
without prejudice to the defendants’ right to object to portions of the report
as being argumentative and not supported by the evidence.

Dr. Hawk

[24]        
Dr. Hawk examined the plaintiff on May 11, 2011, at the request of the
defendants’ counsel. He prepared a report dated June 20, 2011, in which he opined
that:

a)    the plaintiff
had mechanical neck pain secondary to his degenerative disc disease and
arthritis of his cervical spine; and

b)    the plaintiff
had mechanical back pain with no objective evidence of lumbar spinal nerve root
impairment.

[25]        
Dr. Hawk based his opinion in large part on the results of a series of
x-rays, CAT scans and MRI images that had been conducted on the plaintiff over
the years, together with the opinion of Dr. Robert Keyes.

[26]        
X-rays of the plaintiff’s lumbar spine taken in December 1998 showed
that he had mild diffuse osteopenia of the lumbar spine but otherwise the
lumbar spine was normally aligned and the disc spaces well maintained.

[27]        
In January 2002, x-rays of the plaintiff’s cervical spine showed
“degenerative disc disease involving the C3-4 and C5-6 disc spaces with
advanced degenerative changes with encroachment of the intervertebral foraminer
and some posterior osteophytes. There was also early degenerative disc disease
at the C6-7 level. He also had complaints of sciatica in 2000.”

[28]        
After the 2004 Accident, further x-rays of the plaintiff’s whole spine
showed “degenerative disc disease at C3-4, C5-6 and to a lesser degree at
C6-7.” There was “compromise of the neural foramina at the C3-4 and C5-6
levels.” There was no significant change from 1998 in his thoracic and lumbar
spine.

[29]        
On January 22, 2007, just three weeks before the 2007 Accident, the
plaintiff was examined by Dr. Keyes. Dr. Keyes diagnosed the plaintiff with “cervical
spondylosis,” “lumbosacral spondylosis with nerve root irritation involving his
right lower extremity,” and “inflammation of his right rotator cuff region or
adhesive capsulitis.” Dr. Keyes ordered a CAT scan that reported disc
herniations in the right side of L2-3 and L3-4, a broad-based disc bulge at
L4-5 and significant degenerative disease in the plaintiff’s cervical spine.

[30]        
Dr. Keyes’ opinion was that the plaintiff had mechanical neuropathic
neck and lower back pain, and mechanical right hip and right shoulder pain.

[31]        
Following the February 2007 Accident, the plaintiff has had multiple
x-rays and MRI examinations of his spine. According to Dr. Hawk, these show “he
has mid-cervical degenerative disc disease with moderate stenosis at the C5-6
level. He has multiple level invertebral foramina stenosis of the cervical
spine.” He also has a “L4‑5 disc bulge at this level without significant
mass effect. Mild bilateral facet osteoarthritus is noted.”

[32]        
Nowhere in his report did Dr. Hawk connect any of the plaintiff’s
medical problems to the 2007 Accident, or in fact, to any accident. At the risk
of over-simplification, it is fair to say that Dr. Hawk attributed the
plaintiff’s symptoms to what a lay person might call “arthritis of the neck and
spine and all the usual complications that entails.”

[33]        
In his oral testimony, Dr. Hawk vehemently denied that the plaintiff had
exhibited any signs of sciatica before, during or after his examination on May
11, despite the plaintiff’s insistence that he had done so. However, Dr. Hawk
did admit to the following:

1)    He expected that
the 2007 Accident caused the plaintiff pain as compared to someone without the
plaintiff’s medical issues.

2)    It was
reasonable that the plaintiff suffered mechanical neck pain with inflammation
from both the 2004 and 2007 Accidents.

3)    It was probable
that the trauma of the 2007 Accident aggravated the plaintiff’s already
existing condition of degeneration of the neck and spine and caused increased
pain for a time.

4)    Given the
plaintiff’s symptoms and condition before and after the 2007 Accident, the
aggravation caused by the 2007 Accident was probably slight, and probably would
have lasted no more than three months.

5)    Given the
plaintiff’s condition before the 2007 Accident, it was reasonable to expect
that he would have continued to experience pain without the trauma of the
accident.

Dr. Keyes

[34]        
As mentioned above, Dr. Hawk relied upon Dr. Keyes’ diagnosis in January
2007. On June 11, 2007, Dr. Keyes wrote to Dr. Baird describing the plaintiff’s
condition as “cervical degenerative disc disease with moderate central stenosis
at C5-6 … multiple exit foraminal stenosis at [this and] other levels
throughout the cervical spine … diffuse disc and an osteoarthritic bulge at L-5
arthropathy of the right acromial clavicular joint.” Also in this letter, Dr.
Keyes stated: “I think this patient’s symptomatology is probably related to
degenerative disease in the cervical spine. He also has some degenerative
disease in the low back and some neuropathic and mechanical neck [and low back]
pain.”

[35]        
Dr. Keyes testified that when he wrote the June 11, 2007 letter to Dr.
Baird, he did not know about the 2007 Accident. He had relied on his
investigation and conclusions of the plaintiff’s condition back in January
2007. He said based on his findings in January 2007, it would not be unexpected
for the plaintiff to experience an increase in symptoms over the years until
now, without any trauma intervening. The symptoms would vary where and when
depending on the pathology, but Dr. Keyes expected the plaintiff’s
symptoms would increase and his overall level of function would decrease.

[36]        
When asked by the plaintiff whether the plaintiff’s condition made him
more susceptible to injury and pain, Dr. Keyes said it would depend on the
nature of the injury. He described the plaintiff’s symptoms before the 2007
Accident as including: forward flexion of the head, tilted slightly right; neck
pain and stiffness; limited range of movement all over; pain in lower back,
hips and buttocks; and altered sensation in both feet, left more than right. In
other words, Dr. Keyes described the plaintiff as suffering from the same
symptoms before the 2007 Accident as those from which the plaintiff currently
suffers.

Dr. Baird

[37]        
Dr. Baird became the plaintiff’s general physician in September 2006. In
his letter to defence counsel of January 2008, Dr. Baird wrote that on November 27,
2006, the plaintiff first made mention to him of problems with lower back,
neck, right shoulder girdle and right leg sciatica. The plaintiff mentioned
lumbar spine and sciatica problems in the past, but his right shoulder injury
was new since the 2004 Accident. He also suffered some significant injuries to
his teeth in the 2004 Accident.

[38]        
Dr. Baird’s working diagnosis in November 2006 was “likely widespread
new fibre tear injuries, and exacerbation of underlying degenerative cervical
and lumbar spine disease caused by the accident” and “damage … causing broken
teeth.”

[39]        
Further, in his January 2008 letter to defence counsel, Dr. Baird wrote
that “some interval changes of deterioration caused by the accident and the
passage of our [sic] time might be present but how I cannot comment.”
Based on his clinical experience, Dr. Baird opined that his prognosis for the
plaintiff “would not be very optimistic … with regard to his symptoms that he
suffers with over the years since his November 2004 accident.” Dr. Baird
commented that it was unfortunate that the plaintiff went on to have another
accident in February 2007, but made no mention of this latter accident having
played a role in the plaintiff’s symptoms.

[40]        
In September 2011, just before trial, Dr. Baird provided the plaintiff
with an updated or supplemental report dealing with the 2007 Accident. Although
it purported to be a medical-legal opinion, it smacked of argument.
Unfortunately, Dr. Baird was out of the country during the trial and
therefore unable to appear in person and testify. I accept some of his
comments, but unfortunately can give little weight to his argumentative
opinions.

[41]        
Besides being argumentative, there were other problems with Dr. Baird’s
report. He appeared to be under the impression that the plaintiff had banged
his head in the 2007 Accident, which is contrary to the plaintiff’s own
evidence. Dr. Baird referred to the plethora of consultations he has had with
the plaintiff, but only one of these consultations pre-existed the 2007
Accident. Therefore, Dr. Baird’s knowledge of the plaintiff’s pre-existing
condition was limited to what he described in his January 2008 letter.

[42]        
Dr. Baird stated in his September 2011 letter that there is no way to
objectively measure this type of damage, pain, suffering and disability except
through listening to the patient. He believed that causality was most logically
determined with detailed recorded observations and listening to descriptions of
symptoms from the plaintiff, rather than over-reliance on imaging to get the
answers. This means that his opinion is largely predicated on what he has been
told by the plaintiff, whom I have found to be an unreliable witness.

[43]        
Despite his philosophy of relying on patient complaints over
radiography, Dr. Baird did not disagree with Dr. Hawk’s or Dr. Keyes’
diagnoses. However, based on the plaintiff’s complaints to him, Dr. Baird opined
that the intensity and extent of the plaintiff’s complaints had significantly
augmented subsequent to the 2007 trauma and that he was significantly worse off
following the 2007 Accident. Dr. Baird also stated that the plaintiff had
suffered from a further aggravation of his pre-existing condition and new fibre
tear whiplash-related injuries from the December 2010 Accident. Finally, he
believed that the plaintiff would continue to have these “quite significant
residual symptoms, as well as a propensity to periodic flare-ups” indefinitely.

[44]        
After having reviewed all of the exhibited medical records and reports,
and after considering all of the viva voce testimony, it seems fair to
conclude, on a balance of probabilities, that it is more likely than not that
the plaintiff experienced from the 2007 Accident an exacerbation of his
pre-existing symptoms. However, it appears to have been minor and not long in
duration. The plaintiff developed no new symptoms. He was back doing physical
labour within a few days, and his complaints from that time to the present
would likely have continued, regardless of the 2007 Accident. His pre-existing
condition was well described by Dr. Baird and Dr. Keyes and there was no
reliable, positive evidence to indicate that he developed some further injury
of a permanent nature as a result of the 2007 Accident. It is telling, indeed,
that the plaintiff’s statement of claim with respect to the 2004 Accident is
almost identical to his statement of claim respecting the 2007 Accident.

[45]        
The defendants submit that the plaintiff has not proved any of his
damages were caused by the 2007 Accident, or alternatively, that the plaintiff
suffered only minor non-pecuniary damages and nothing else. I agree with the
defendant’s latter submission and find that the plaintiff suffered a slight
aggravation of a chronic, symptomatic, disabling, pre-existing condition.

[46]        
There was no reliable evidence of wage loss, in the past or in the
future, or the need for future care. There was no evidence of special damages.

[47]        
The case law indicates that a reasonable award of non-pecuniary damages
for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough
v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is
interesting to note that in both these other cases, the plaintiff was found to
be lacking credibility and the Court was obliged to rely on the medical
evidence to determine the cause of the plaintiff’s claims of injury. I find
myself in a similar position, and on the evidence before me, I award the plaintiff
$20,000 in total damages arising from the 2007 Accident.

“Kloegman
J.”