IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120208

Docket: 09-5761

Registry:
Victoria

Between:

Christina
Marie Hammond

Plaintiff

And:

Shannon
Joan Meeker

Defendant

Before:
The Honourable Mr. Justice Curtis

Reasons for Judgment

[1]            
Christina Marie Hammond claims damages for injuries she suffered in a
motor vehicle accident February 9, 2008.  The defendant has admitted liability
for the collision.

[2]            
On February 9, 2008, Ms. Hammond was riding as a passenger in a Ford
Explorer being driven by her father with her son Dylan, then four years old, in
the back seat.  They had stopped to make a left turn into her parents’ driveway
at 4282 Happy Valley Road in Metchosin, for about 30 seconds.  Her father
glanced in his rear view mirror, and seeing the defendant’s vehicle coming from
behind and too close to avoid a collision, had time to say “What the …” and no
more as the collision occurred before he could say the next word.  Ms. Hammond
turned to the left to look at her four-year-old sitting in the back seat when
she heard her father’s exclamation.  The impact was substantial — it caused
about $4,000 damage to the Ford Explorer and about $6,000 to the defendant’s
2006 Hyundai.

[3]            
Christina Hammond, who was 28 at the time of the accident, was seven
months pregnant with her second son Joshua.  She was wearing a lap and shoulder
belt.  She immediately felt pain in her neck and tightness in her abdominal
area.  Her first concern was to look after her four-year-old who was crying and
very frightened.  She got out of the car and walked him to her parents’ house. 
Richard Hammond, her father, noticed her holding her neck and asked her if she
wanted him to call an ambulance.  She asked him to do so.  When the ambulance
arrived a neck brace was put on her and she was strapped onto a back board on
her back and told not to move until she had been x-rayed for possible neck
fractures.

[4]            
Being seven months pregnant made it very uncomfortable for Ms. Hammond
to lie, for what turned out to be a long period of time, on her back without
moving.  She was taken to the Victoria General Hospital and kept on her back
for seven hours.  Ms. Hammond was very concerned about the health of her unborn
child — she felt what a nurse told her were contractions and she worried she
might have to have her child early — which because of her own history was
particularly worrisome.  When she was born prematurely her mother was told she
had only a 50/50 chance of surviving.  In the hospital Ms. Hammond was taken
immediately to the maternity ward where stress tests and ultrasound were
administered to check the child’s condition.  When her husband Brett Mason
arrived at the hospital about one hour after her admission, he found her
strapped on the board in a lot of pain and really uncomfortable with the neck
brace on and not being able to move.  She was crying and very worried about
their baby.  Both of them understood she had lost amniotic fluid and that she
had dangerously high blood pressure (the blood pressure turned out to be
unrelated to the collision and her amniotic fluid level was in fact normal). 
Mr. Mason stayed with her overnight which she described as very stressful and
difficult, being in pain, worried about her child, and being poked and prodded
with various tests and staff shift changes.  Eventually, they were told she was
not going to have to have the baby that day and not to worry.  Joshua was in
fact born normally and in good health at full term on March 14, 2008.

[5]            
Ms. Hammond consulted Dr. Newcombe, a family practice resident in the
office of her general practitioner, Dr. G. Christie, on February 12, 2008
complaining of a very stiff neck and feeling stressed.  She was advised to use
Tylenol for pain control and physiotherapy which she started on February 13,
2008, going three times per week.  She subsequently saw Dr. Christie February
21, 2008 concerning tingling in her right arm, neck stiffness and a headache
that ran up the back of her head.  She was seen by Dr. Christie on February 25,
26 and on March 3, 5, 7 and 10 for prenatal visits during which she
continued to complain of headaches.  Her son Joshua was born March 14, 2008. 
On April 2, 2008 she consulted Dr. Christie about numbness in the fingers of
her right hand for which she was sent to Dr. Hrebicek who diagnosed carpel
tunnel syndrome.  On April 13, 2008, Ms. Hammond reported she was still
experiencing headaches and taking Tylenol once a day.  She said she was making
slow improvement.

[6]            
On May 23, 2008, upon Ms. Hammond reporting headaches getting worse
during the day and her neck being sore to palpation, Dr. Christie suggested she
try a different physiotherapist and in particular one with skills in
acupuncture.  She began treatment with Rod Mitchell May 30, 2008.  He treated
her consistently throughout 2008 and 2009 and on four occasions in 2010.

[7]            
Dr. Christie reviewed Ms. Hammond September 2, 2008 and found she had a
decreased motion in her neck and she told him her neck was still sore.  Dr.
Christie also saw her December 1, 2008, June 12, 2009 (when he prescribed
amitriptyline for poor sleep) and August 26, 2009 when he did a complete
medical examination.  At that time, she was complaining of daily headaches and
neck discomfort, but reported some improvement with her sleep.

[8]            
On September 18, 2009, Ms. Hammond and her husband, Brett Mason signed
an application to become foster parents for B.T., the infant son of Ms. Hammond’s
first cousin.  The Ministry of Children and Family Development at that point
had removed B.T. from the care of the mother and father because of physical
abuse by the father, resulting in broken ribs and a broken arm.  There was
great pressure from the extended family to have B.T. cared for by a family
member rather than placed with a stranger and Ms. Hammond and her husband were
the only members of the family who could take him.  Ms. Hammond reluctantly
agreed to take on the responsibility for B.T., but only because of the urging
of other family members and their promise to assist her.  An initial care
agreement with the Ministry signed October 9, 2009 ran to December 31, 2009,
but that agreement was extended on December 1, 2009 to June 30, 2010.  B.T.
left Ms. Hammond’s care in June 2010 after she reported to the Ministry she
could no longer handle his care.

[9]            
In the process of Ms. Hammond applying to foster B.T., she filled out an
application in which she supplied the following information:

6.         a)  Do you have any health problems?  If so, what
are they?

 No.

13.       a)  What do you all do together as a family?

 Swimming,
reading, watching movies, playing games, go on hikes, bike rides, go visit
family or friends, go to the park.

 c)  What activities are you and your children involved in?

 Swimming, skating, soccer

[10]        
In support of the application for foster parenting, Dr. Christie signed
a report dated September 25, 2009, in which he wrote of Ms. Hammond:

Has some minor neck and back pain
due to a 2008 MVA, but I do not think that this will affect ability to be a
foster parent.

[11]        
Ms. Hammond saw Dr. Christie next July 27, 2010 with concern about
headaches and that physiotherapy sometimes made it feel worse.  He suggested
taking gabapentin.  On August 10, 2010 he suggested increasing the strength of gabapentin
and after she mentioned that physiotherapy was not clearing up the problem
suggested going without physiotherapy for a while.  On August 24, 2010 she
reported sleeping a bit better and having fewer headaches.  On November 24,
2010 she reported having headaches about twice a week and decreasing the use of
gabapentin.

[12]        
Her next visit with Dr. Christie was July 5, 2011 at which time she
reported right sided neck pain, discomfort sleeping, difficulties with activities
involving moving her neck and that she was seeing a chiropractor and doing
yoga.

[13]        
In his report of July 15, 2011, Dr. Christie writes:

Mrs. Hammond suffered a musculoligamentous strain to her
right upper back and neck area in the motor vehicle accident of February 9,
2008.  This has caused a persistent pain in the area and headaches.  Discomfort
is present daily and has periods of exacerbation.  It has negatively affected
her life in that she has restricted her activities to avoid worsening the
symptoms.  As mentioned above she has declined to go camping or bike riding. 
She finds things that require holding her head in a steady position such as
writing or reading difficult.

She was previously employed as a chambermaid.  I would expect
that she would have difficulty returning to this type of work.  The bending and
turning and lifting that is involved with chambermaid activities would be
challenging.  I think the way her symptoms are currently they do limit her
employability for the reasons mentioned above regarding activities that
exacerbate the symptoms.

She avoids taking medications.  It is possible that she will
require medications in the future.

I am hopeful that her symptoms will gradually resolve with
time.  She is certainly very diligent about doing her exercises.  She is a
mother with young children and these duties are unavoidable and frequently
uncomfortable.

I do not expect that she will ever need any surgical
treatment. I do believe she will need to have continued exercise program which
would be best served with her attending an exercise facility.  She may periodically
require the assistance of chiropractic or physiotherapy services particularly
during times of exacerbation.

I do not think that his injury
will lead to osteoarthritis.

[14]        
The physiotherapist Rod Mitchell in his report of October 31, 2011
writes:

Christina continues to suffer with pain and headaches
associated with head position, and head and neck movement.  This had not
changed significantly between August 2010 and September 2011 when I did not see
her.  Her neck movements on the 30th September 2011 after I had not seen her
for over a year were very limited and provoked pain very easily.  The quality
of movement at this time may have been worse than a year previously.  Christina
reported that she still feels tingling into the right hand and forearm when she
is pushing a shopping cart.

There was pain on palpation at the right upper neck. 
Elevation at the right shoulder was slightly restricted with discomfort
provoked at the right side of the neck and upper back.  At the right posterior
thoraco-lumbar region there was discomfort with rotation of the trunk.

Christina has fair range of motion at the cervical spine but
this appears to be compromised by injury to the soft tissue at the upper
cervical spine particularly on the right.  Attempts to increase this range may
just increase the pain and possibly damage to the muscles at the upper part of
the neck.  While maintenance of her range is important I believe that it is more
important to first increase her postural strength and awareness, and therefore
her control of the upper back and neck.  Christina will need to be guided
through a postural strengthening program to achieve this.  Relatively gentle
and effective treatments such as acupuncture should also help with the control
of the neck pain and headaches.

This conservative approach should
stabilize her problems and give her some management tools.  I can not predict
how much improvement Christina will make and believe that she will have to live
with some restriction of neck movement and some discomfort.

[15]        
As she had reported to Dr. Christie, Ms. Hammond had been seeing a
chiropractor recommended to her by her aunt and her lawyer whose office is next
door.  She began seeing Dr. Julia Martorana June 14, 2011.

[16]        
Dr. Martorana in her opinion of October 31, 2011 writes:

Diagnosis:  Delayed effects of cervical/thoracic
sprain/strain with intersegmental dysfunction/subluxation.

It has been over three years since the initial injuries from
her motor vehicle accident.  I have treated Mrs. Hammond for less than four
months but am pleased with the outcomes and progress and feel she has benefited
from these treatments.  I feel that she will continue to improve with further
treatments and exercise but feel it is unlikely that she will recover 100%.  It
is my opinion that the cause of Mrs. Hammond’s injuries are from the motor
vehicle accident of February 9, 2008.

It is my opinion that Mrs. Hammond has sustained a permanent
partial disability to the aforementioned areas.  I base this opinion on the
severity of the car accident, the length of time since the accident, the
continued subjective complaints and objective findings and I have reviewed the
records from Dr. Christie, CBI Health Centre, Langford Physiotherapy and All
Care Family Chiropractic.  I also have based my opinions on similarly injured
patients and my education and experience in the health, wellness and fitness
field.

It is also my opinion that her
injuries will continue to affect her with activities of daily living and I do
not see this changing much in the near future.  I feel that this will affect
any decisions regarding future occupational endeavours involving physical labor
and do not see this changing much in the near future.  Mrs. Hammond expressed
wanting to open her own daycare but does not feel that this is an option
anymore, and I agree.

[17]        
Ms. Hammond saw Dr. Martorana from June 14, 2011 to her last visit
January 12, 2012.  The sum of $1,449.60 is claimed as special damages for
the expense of seeing Dr. Martorana.

[18]        
Additionally, when Ms. Hammond saw Dr. Christie on January 13, 2012, in
what he reported in his evidence as a distraught state, he diagnosed her as
being depressed as the result of her persistent headaches, neck pain and sleep
difficulties and prescribed citalopram as an antidepressant.

[19]        
Ms. Hammond has testified that her injuries have prevented her from
doing virtually all of the activities she previously enjoyed such as skiing,
hiking, swimming and bicycling.  She confines her walking to level ground and
participation in yoga.  Because of her sleeping problems her husband Brett
Mason, who has to get up at 2:30 in the morning for his job driving a truck has
had to sleep in the basement.  Mr. Mason has testified that his wife’s
irritability and difficulties caused by her injuries in his words have “used up
all the patience we have got”.  Testimony from Ms. Hammond’s father,
mother and aunt confirms that Ms. Hammond has not been the active, high energy
person she was before her injuries.

General Damages

[20]        
I find on the evidence that the sum of $40,000 is reasonable and fair
compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of
life inflicted upon her by the February 9, 2008 collision.  She has suffered a
soft tissue injury to her neck and upper back, the significant symptoms of
which, particularly headaches and pain and stiffness in the neck, have not
resolved in the four years since the collision, and will likely continue for an
indefinite period of time in the future.  While the injury and symptoms do not
actually prevent any particular activity, they make many activities painful and
not enjoyable to the extent that she does not do them.  This has been
particularly difficult for her given her position as a home maker with two
small children and for a while three with B.T. as a foster child.  On the other
hand, I accept Dr. Christie’s opinion that her injury will not require surgery,
nor will it make osteoarthritis more likely.

[21]        
There is evidence that Ms. Hammond had chronic back pain when she was
admitted to hospital following her motor vehicle injuries.  This was lower back
pain which was caused by an injury suffered while working as a chambermaid at
the Oak Bay Beach Hotel in 2003.  There is no evidence, however, of the
extent that her lower back pain restricted her prior to the accident.  In
assessing damages in this case, I have considered only what has been shown to
have been caused by her motor vehicle injuries.

Past Loss of Income

[22]        
Ms. Hammond claims $23,652.39 for past loss of income on the basis that
she would have earned $3,000 per year from housecleaning for her parents (with
allowance for time off for her pregnancy) and for 19 months for loss of income
as a foster parent for B.T.

[23]        
The evidence is that before the accident, Ms. Hammond regularly worked
for her parents doing six hours of housecleaning at $10 per hour.  Payments
were made in cash.  No one kept records and the income was not disclosed for
income tax purposes.  Ms. Hammond testified that she did the housework every
week; however, when her mother was asked how often, her evidence was most of
the time.  I expect that having B.T. join the household in October 2009 to June
2010 would have made it more difficult to continue the housecleaning with the
same regularity.

[24]        
I accept that there has been a loss of income from housecleaning as a
result of the injuries caused by the February 2008 collision; however, in the
absence of records confirming the regularity of the payments I am not prepared
to accept the 50‑week-a-year estimate.  I award $7,500 for loss of
housekeeping income to date.

[25]        
The evidence is that Ms. Hammond took on the foster care of B.T. only
very reluctantly and as a result of family pressure on her.  Adding an infant
to an existing household of two little boys is a substantial increase in work
and responsibility for a fit person with no injuries.  Ms. Hammond described
herself in her application to foster B.T. as fit to care for him as did her
doctor.  When B.T. was returned to the Ministry in June 2010, it was at the end
of the contract signed December 1, 2009.  B.T.’s brother N.T. had been born by
the time B.T. was given up and Ms. Hammond felt that the brothers should
be together and she could not take both of them.  When the Ministry asked her
if she would like to continue to be a foster parent in September of 2010, she
did not decline to do so on account of her health, but on the basis that she
and her husband were working on some behavioural issues with their six-year-old
at school, that they had a two-year-old at home and that her husband Brett, who
had serious surgery for a non-malignant stomach tumour that February was still
having some issues.  The evidence at trial does not establish a claim for loss
of income from fostering B.T. or other children.

Reduced Earning Capacity

[26]        
Ms. Hammond has given evidence that she planned to start a daycare
business when her son Dylan began Grade 1.  She had not, however, decided on whether
she would run a licensed daycare or an informal one and she had not taken any
steps to put her plan in place.  She and her husband had agreed before the
accident that she would be a stay-at-home mother so that she could raise their
children.  This, of course, could be done while running a small daycare
business.  She has lost some income from housekeeping she was otherwise able to
do.  The restrictions caused by pain from her injuries will last for some
indefinite time in the future, but there remains a significant possibility that
they will resolve with time.  I am satisfied that there is a real and
substantial possibility that Christina Hammond will suffer a loss of income in
the future because of her motor vehicle injuries, but that the loss will be a
modest one having regard to the possibility of her injuries gradually resolving
and her earning potential.  I fix the sum of $10,000 as an appropriate amount
for Ms. Hammond’s claim for reduced capacity to earn income.

Special Damages

[27]        
I award special damages in the sum of $6,528.88 as claimed.  I am
satisfied that the chiropractic treatment by Dr. Martorana was medically
justified and reasonable, and as noted by Dr. Martorana produced improvement in
Ms. Hammond’s condition.  Dr. Christie’s opinion noted that Ms. Hammond
could in future require physiotherapy or chiropractic treatment.  I also find
that her depression was caused by the persistence of her headaches and neck
pain with the ensuing prejudice to her life.

Cost of Future Care

[28]        
I award the $3,000 claimed for cost of future care.  I expect that with
time and further chiropractic or physiotherapy treatments that her condition
will improve and possibly resolve; however, I accept that some treatment and
medication will be necessary in the future.

Summary

[29]        
In summary, I find Christina Hammond entitled to recover damages as
follows:

[30]        
The parties may address any issues arising from this decision, including
costs, should that be necessary.

               “V.
R. Curtis, J.”              

The
Honourable Mr. Justice Curtis