IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Guzman Gonzalez v. Dueck, |
| 2012 BCSC 792 |
Date: 20120531
Docket: M106072
Registry:
Vancouver
Between:
Jose Vicente
Guzman Gonzalez
Plaintiff
And
Dawson Peter Dueck
and Warren Lyle Dueck
Defendants
Before: The Honourable Mr.
Justice Burnyeat
Reasons for Judgment
Counsel for Plaintiff: | M.J. Neathway |
Counsel for Defendants: | M.R. Parkes |
Place and Date of Trial: | Vancouver, B.C. May 9-11 and 15, 2012 |
Place and Date of Judgment: | Vancouver, B.C. May 31, 2012 |
[1]
On May 26, 2009, a vehicle driven by Mr. Dawson Dueck collided with
the rear of a vehicle being driven by Mr. Guzman Gonzalez while the
vehicle of the Plaintiff was stopped in traffic. It is the submission of Mr. Guzman
Gonzalez that he sustained injuries as a result of the negligence of
Mr. Dueck and that some of those injuries continue to cause him pain and
suffering.
[2]
While Mr. Dueck admits that his negligence caused the collision, he
submits that Mr. Guzman Gonzalez sustained no injuries as a result of the
collision or, in the alternative, that any injuries sustained in the collision
did not cause pain and suffering beyond about six months after the collision. Mr. Dueck
described the speed of his vehicle as being about one kilometres per hour, and
he described the impact as being a little love tap.
BACKGROUND
[3]
At the time of the collision, Mr. Guzman Gonzalez was working at
Kamatsu International (Canada) Inc. filling stock orders, was being paid $18.34
per hour and $27.50 for overtime, was lifting stock that weighed between one
pound and fifty pounds, was moving other stock by forklift truck, and was
working considerable overtime, including one or two times a month on Saturdays.
[4]
At the time of the collision, Mr. Guzman Gonzalez was living with
his girlfriend and his nephew and was active playing soccer several times a
week, playing basketball two days a week and sometimes on weekends, learning to
play golf, playing tennis virtually every day when the weather was good, and
going to dances and listening to music most weekends.
[5]
I find that, at the time of the collision, Mr. Guzman Gonzalez was
wearing his seat belt, that his vehicle was stopped and had been stopped for
approximately 15‑20 seconds, and that he was totally relaxed.
Mr. Guzman Gonzalez stated at Trial that his body went forward and then
back at the time of the collision, that he did not hit his head, and that he
pushed hard on the brake so that his vehicle did not hit the vehicle in front
of his vehicle. Mr. Guzman Gonzalez states that he did not feel pain
after the accident so that he advised Mr. Dueck that he was okay.
[6]
The damage to the respective vehicles was $1,270.80 to the vehicle of Mr. Guzman
Gonzalez and $1,001.52 to the vehicle of Mr. Dueck. Mr. Dueck
described the damage to his vehicle as being a little damage to the front-end
bumper, it got pushed down. I do not accept the evidence of Mr. Dueck
that his vehicle was only going one kilometre per hour and that the collision
only involved a little love tap. Although the damage to the vehicles was not
extensive and although I can conclude that this was a low impact
collision, I cannot reach the conclusion that the respective damage to the
vehicles could have been caused by the collision described by Mr. Dueck.
[7]
Mr. Guzman Gonzalez testified that he started to feel pain in his
neck approximately 20-30 minutes after the collision and, by the next morning,
he felt pain in his back and in his shoulder on the left side. He also testified
that he began to have headaches so that he had trouble sleeping the night after
the accident.
[8]
Mr. Guzman Gonzalez visited his family doctor the next day. In his
medical-legal report, Dr. Kevin Tong stated that Mr. Guzman Gonzalez said
that he was experiencing neck stiffness in his left shoulder and back pain. At
this May 27, 2009 appointment, Dr. Tong recorded the following range
of motions: anterior flexion of 30 degrees; extension of 20; bilateral
rotation of 65; bilateral flexion of 20 degrees. Dr. Tong also noted:
On palpation, there was bilateral
neck musculo-ligament tenderness and tension as well as musculo-ligament
tenderness in the low back. Left shoulder exhibited decreased external
rotation and abduction. There was tenderness on the anterior aspect. Right
shoulder range of motions was normal.
[9]
Mr. Guzman Gonzalez was referred to a physiotherapy clinic and
prescribed diclofenac SR 100 mg. In addition to physiotherapy,
Dr. Tong advised Mr. Guzman Gonzalez to do stretching and
strengthening exercises on his own. Mr. Guzman Gonzalez was also provided
with a note to excuse him for work for one week. Mr. Guzman Gonzalez took
two days off from work but was paid by his employer during this absence.
[10]
Mr. Guzman Gonzalez saw Dr. Tong on July 24, 2009 and
advised that his low back pain had improved but that his left neck pain
persisted. Dr. Tong noted the following range of motions: Anterior
flexion of 30 degrees; extension of 20; bilateral rotation of 64;
bilateral flexion of 20 degrees. Dr. Tong also noted:
On palpation, there was bilateral
neck musculo-ligament tenderness and tension as well as mild musculo-ligament
tenderness in the low back. Left shoulder showed decreased external rotation
and abduction. There was tenderness in the anterior aspect.
[11]
Mr. Guzman Gonzalez was seen by Dr. Tong on October 21,
2009 and was still complaining of left neck and shoulder pain. Range of motion
in the neck was recorded by Dr. Tong as follows: anterior flexion of
40 degrees; extension of 30; bilateral rotation of 75; bilateral flexion
of 20 degrees. Dr. Tong also noted:
On palpation, there was bilateral
neck musculo-ligament tenderness but no tension, as well as mild
musculo-ligament tenderness in the low back. Left shoulder exhibited decreased
external rotation and abduction with anterior aspect tenderness.
[12]
Mr. Guzman Gonzalez saw Dr. Tong on November 30, 2009. Dr. Tong
recorded the following range of motion of the neck: anterior flexion of
40 degrees; extension of 40; bilateral rotation of 75; bilateral flexion
of 25 degrees. Dr. Tong also noted:
On palpation, there was residual
neck musculo-ligament tenderness, as well as mild musculo-ligament tenderness
in the low back. Left shoulder exhibited decreased abduction with anterior aspect
tenderness.
[13]
Dr. Tong had referred Mr. Guzman Gonzalez for an x-ray and
ultrasound on the left shoulder.
[14]
Mr. Guzman Gonzalez saw Dr. Tong again on December 5,
2009 and stated that there was occasional flareup of his neck and back pain
associated with tightening up of the muscles. The x-ray showed moderate
osteoarthritis of the acromio-clavicular joint which may cause impingement.
The ultrasound of the left shoulder was described by Dr. Tong as entirely
normal. Mr. Guzman Gonzalez was again referred to a
physiotherapist/massage therapist.
[15]
Between December 5, 2009 and February 20, 2012,
Mr. Guzman Gonzalez did not see Dr. Tong for collision-related
issues.
[16]
On February 20, 2012, Mr. Guzman Gonzalez saw Dr. Tong so
that Dr. Tong could get an update and so that Dr. Tong could provide
the March 4, 2012 medical-legal report which was in evidence. On February 20,
2012, the range of motions of the neck showed: anterior flexion of 50 degrees;
extension of 40; bilateral rotation of 75; and bilateral flexion of
30 degrees. Dr. Tong also noted the following:
On palpation, there was neither
residual neck musculo-ligament tenderness nor low back tenderness. Left
shoulder exhibited slight decreased external rotation and abduction. There was
no tenderness on the anterior aspect of the left shoulder.
[17]
In the conclusion in his March 4, 2012 medical-legal report,
Dr. Tong stated: At the end of this visit, I concluded that
Mr. Guzman Gonzalezs neck and low back musculo-ligament strain has
resolved.
PHYSIOTHERAPY
[18]
While he was authorized to have twelve visits with a physiotherapist,
Mr. Guzman Gonzalez only visited his physiotherapist five times:
May 29, June 3, June 5, June 10 and June 25, 2009.
The physiotherapist, Mr. Snip, testified at Trial.
[19]
At the first visit, Mr. Snip found that the neck of Mr. Guzman
Gonzalez was tender on palpation, there was soft tissue tension, and there
was limitation of movement in all directions. He recommended the use of ice
and an exercise program. Subsequent visits reaffirmed the initial observations
of Mr. Snip. Mr. Snip was of the opinion that, by June 25, 2009,
there was nearly full range of motion, although still a restriction on left
rotation and left side flexion.
[20]
Under cross-examination, Mr. Guzman Gonzalez confirmed that he had
stopped the sessions because he did not want them to interfere in his job, he
did not want to ask his employer for time off, he could only attend
physiotherapy sessions in the morning and this would result in driving in
extensive rush-hour traffic, and he assumed that Mr. Snip would merely
recommend the same exercise program that he was already undertaking. In this
regard, Mr. Guzman Gonzalez stated that he was undertaking the exercises
as recommended by Mr. Snip. I accept the evidence of Mr. Guzman
Gonzalez that he has consistently undertaken the exercise program which had
been recommended by Mr. Snip.
[21]
While there was extensive cross-examination of Mr. Snip and
Mr. Guzman Gonzalez about whether further physiotherapy might have further
assisted the recovery of Mr. Guzman Gonzalez, there is no medical or
professional evidence before the Court that this would be the case.
MEDICAL LEGAL REPORT OF DR. RUSSELL OCONNOR
[22]
At the request of counsel for Mr. Guzman Gonzalez, Dr. Russell
OConnor saw Mr. Guzman Gonzalez. The December 16, 2011 medical-legal
opinion of Dr. OConnor was in evidence and Dr. OConnor was
qualified to provide an opinion as an expert in physical medicine and
rehabilitation and as a physiatrist. At the time of the examination of
Mr. Guzman Gonzalez, Dr. OConnor had the records of Dr. Tong.
[23]
Under the heading Physical Examination, Dr. OConnor noted:
His neck mobility actively was
reduced to 20° to the
left and 30° to the
right with some mild discomfort on both sides. He had normal range of motion
passively at 50° of lateral flexion, 80° of rotation symmetrically, and full flexion. … He was
complaining with lateral flexion to the right of a pulling sensation over the
left trapezius area. He was tender over the trapezius and levator scapulae,
much worse on the left than the right, as well as over the paraspinal muscles
on the left more so than the right. He was tender over the midline at C3, C4,
C5 and C6, but worse at the C3-C4 level in the neck and worse on the left than
the right. … He had a bony prominence over the AC joint with degenerative
changes that could be seen and felt under the left AC joint. He was tender
over the left AC joint and non-tender on the right. Stressing of the AC joint
produced some mild discomfort … shoulder mobility was full and pain-free. He
has 170° of forward flexion and abduction
bilaterally, but pain at end range of forward flexion on the left that
localized over the AC joint. Crossed or scarf test for the AC joint was tender
mildly, and he was tender over the AC joint on the left compared to the right.
Rotator cuff was non-tender. …
[24]
In his medical-legal opinion, Dr. OConnor indicated that the
problems of low back pain and headache had resolved over several months, the
neck pain and left shoulder pain had persisted and, while the neck pain and
left shoulder pain was about 50% better, the pain still bothered
Mr. Guzman Gonzalez. Dr. OConnor provided the following opinion:
It is my opinion that the neck
pain was initially triggered by musculoligamentous strain to the neck and
likely aggravation of the cervical facet joints at the mid-cervical spine. He
is tender maximally at C4 but is tender through the neck facet joints from C2
to C5 bilaterally, worse on the left. He also has myofascial pain involving
the neck extensors and paraspinal muscles, trapezius and levator scapulae
particularly on the left. This is contributing to a lot of his pain
presently. He also has a posture where he has a rounded thoracic kyphosis that
is correctable and is posture-related that leads him to be hyperextended at the
upper cervical spine, and this is likely contributing to some of his symptoms
as well.
[25]
Dr. OConnor was of the opinion that neck pain and left shoulder
pain of Mr. Guzman Gonzalez would limit him to a mild degree in his
future employment. Dr. OConnor provided that the following prognosis
and recommendations:
Prognosis
No surgeries are going to be required of the neck. There is
a small chance that a left AC joint resection could provide some symptomatic
relief but for most patients this is not required. It is a nuisance that
causes pain particularly if they have to do repetitive overhead reaching or
lifting, but otherwise it should continue to remain at its present level to
mostly a mild degree for the foreseeable future.
He is at increased risk of injury or aggravation of the left
shoulder or neck as a result of having to do heavy lifting or overhead reaching
or carrying because of the chronicity of his symptoms and the neck and AC joint
conditions. To date, he has been managing at work and I would estimate this
risk to be small but still present, and this is as a result of the motor
vehicle accident. He may well have had some degenerative condition in the AC
joint in the past but he does not have any recollection of having pain in this
area. The seatbelt and compression to this area at the time of the accident
more likely than not is what triggered this, in my opinion
Recommendations
1. I
would recommend a strength and conditioning program for the neck and shoulder
girdle mostly for the neck paraspinal and periscapular muscles.
2. A trial of a steroid injection
into the AC joint could be done if he is still really suffering from pain in
this area. However, I think it is mild enough now that he probably would not
go ahead with this.
NON-PECUNIARY DAMAGES
[26]
In support of the submission that the non-pecuniary damages of
Mr. Guzman Gonzalez should be in the range of $30,000 to $35,000, the
following decisions are said to compensate the plaintiffs for similar durations
of similar pain and suffering:
(a)
Dhaliwal v. Vail, [2007] B.C.J. No. 2971 (S.C.) (40-year-old
injured in an accident causing less than $2,000 in damage to each of the
vehicles involved, diagnosis of mild-to-moderate strain of the neck, back and
shoulders, massage and chiropractic treatment, conversion to light duties at
work, pain and suffering largely resolved within a year) ($25,000);
(b)
Meyers v. Leng, [2006] B.C.J. No. 2801 (S.C.) (neck and shoulder
pain, physiotherapy prescribed, constant pain for about six months, pain
sporadic after a year, occasional pain in the neck and shoulder with more
strenuous physical tasks) ($25,000);
(c)
Orrell v. Lynch, [2008] B.C.J. No. 2394 (S.C.) (low velocity rear
impact collision, chiropractic treatment and physiotherapy, pronounced pain for
approximately six months, some debilitation even up to the point of trial,
impact on physically demanding activities such as running, going to the gym,
gardening, ordinary household tasks, and interaction with her son) ($30,000);
(d)
Hauer v. Clendenning, [2010] B.C.J. No. 497 (S.C.) (42-year-old
with pain in chest, neck, back and shoulder, which was diagnosed as muscle
strain, prescribed pain medication and antiinflammatories, off work for several
weeks, shoulder range of motion markedly reduced. After six months, shoulder
pain still affecting employment and recreational activities) ($35,000); and
(e)
King v. Horth, [2009] B.C.J. No. 1634 (soft tissue injury to neck
and shoulder which produced headaches, discomfort with job and recreation
activities. Did not significantly interfere with ability of the plaintiff to
perform at his work as a gardener and phone solicitor) ($35,000).
[27]
The alternative position taken by the Defendants is that, if
non-pecuniary damages are to be awarded, the amount ordered should be in the
range of $4,000 to $5,000 and that any amount awarded should be reduced because
of the failure of Mr. Guzman Gonzalez to mitigate his damages. In
reliance on the submission that $4,000 to $5,000 is appropriate for
non-pecuniary damages, the Defendants rely on the following decisions which are
said to compensate the plaintiffs for similar durations of similar pain and
suffering:
(a)
Brar v. Kaur, [2010] B.C.J. No. 1708 (S.C.) (after minor motor
vehicle accident, suffered approximately six months with soft tissue injury to
neck and back, was off work for one month, and had fully recovered within five
to six months) ($4,000);
(b)
Prasad v. Nyari, [2007] B.C.J. No. 101 (S.C.) (off work for three
months, experienced tension headaches and left shoulder pain, range of motion
in the neck region was 40% of normal and in shoulder area was 60% of normal,
injury affected sleep and resulted in an inability to take evening walks,
assist with his childrens homework, or carry out household tasks which could formerly
be performed) ($4,200); and
(c)
Mohammed v. Rai, [2005] B.C.J. No. 3166 (S.C.) (ten days off
work, headaches and soft tissue injuries to neck and back, muscle stiffness and
tenderness in paraspinal regions of back and neck, as well as diminished
rotation of cervical spine bilaterally, light duties at work, anti-inflammatory
medication prescribed, physiotherapy undertaken, substantial recovery within
about eight months) ($5,000).
[28]
On the basis of the testimony of Mr. Guzman Gonzalez, the expert
opinions of Drs. Tong and OConnor, and the testimony and reports of
Mr. Snip, I can conclude as follows regarding the extent and the duration
of the pain and suffering of Mr. Guzman Gonzalez caused by the accident:
(a)
Regarding the low back pain experienced by Mr. Guzman Gonzalez,
I conclude that he had fairly constant pain for the first month or so, but
that his complaints had resolved by the time Mr. Guzman Gonzalez saw
Dr. Tong on October 21, 2009.
(b)
Regarding the headaches suffered by Mr. Guzman Gonzalez, while
Mr. Guzman Gonzalez testified at his Discovery that he had his last
headache in December 2010, I am satisfied on the basis of the medical legal
opinion of Dr. OConnor that any headaches associated with the accident were
common daily for the first three months, but had largely resolved within three
to four months so that Mr. Guzman Gonzalez now only experiences headaches
every so often.
(c)
Regarding the pain experienced in his shoulder, Mr. Guzman Gonzalez
confirmed that there is only pain when he lifts his arm above his head or when
he sleeps on that particular shoulder. I take into account the following
evidence to come to the conclusion that the neck and shoulder pain caused by
the accident lasted in the neighbourhood of six to eight months, although it
was particularly acute during the first two months after the accident: (i) by
December 5, 2009, Mr. Guzman Gonzalez was reporting to Dr. Tong
that there was only occasional flareup associated with the tightening up of
the muscles; (ii) the clinical notes of Dr. Tong did not record any
complaint by Mr. Guzman Gonzalez about neck and shoulder pain for the
December 5, 2009 through February 20, 2012 visits; (iii) in his
February 20, 2012 medical legal opinion, Dr. Tong noted that there
was neither residual neck musculo-ligament tenderness on palpation, that the
left shoulder exhibited slight decreased external rotation and abduction, and
that there was no tenderness on the anterior aspect of the left shoulder; (iv) neck
pain and left shoulder pain was described by Dr. OConnor in his
December 16, 2011 legal opinion as being about 50% better; and (v) in
his December 16, 2011 opinion, Dr. OConnor states that the neck pain
was initially triggered by musculoligamentous strain to the neck, and likely
aggravation of the cervical facet joints at the mid-cervical spine.
[29]
The x-ray arranged by Dr. Tong in late 2009 indicated moderate
osteoarthritis of the acromio-clavicular joint and that this may cause
impingement. There is no medical evidence which would allow me to conclude
that the accident caused an acceleration of the osteoarthritis or that this
would not have developed but for the accident. In the circumstances, I find
that the condition described by Dr. OConnor was the result of a
degenerative condition in the AC joint which had previously not caused pain to
Mr. Guzman Gonzalez but is presently causing pain during or after what
Dr. OConnor described as overhead reaching. The prognosis of
Dr. OConnor is that there is an increased risk of injury or aggravation
of the left shoulder with any heavy lifting or overhead reaching or carrying
required in the occupation of Mr. Guzman Gonzalez. I find that this
ongoing problem is attributable to the osteoarthritis and not to injuries
caused by the negligence of Mr. Dueck.
[30]
As a result of the injuries caused by the negligence of Mr. Dueck,
I find that Mr. Guzman Gonzalez was not able to play tennis for about six
months, that he had limited ability to play soccer, that he was less active on
the dance floor for six to eight months, but that, after about eight months, he
was fully able to carry on with all of his previous recreational activities. I
find that any further limitations regarding his recreational activities can be
attributed to a problem that Mr. Guzman Gonzalez has with his knee which
is in no way associated with the results of the injuries he suffered as a
result of the accident.
[31]
Taking into account the injuries suffered by Mr. Guzman Gonzalez as
a result of the accident and the duration of the pain and suffering of
Mr. Guzman Gonzalez, I assess the non-pecuniary damages of Mr. Guzman
Gonzalez at $27,500.
[32]
It was the submission of the Defendants that Mr. Guzman Gonzalez
had not fulfilled his duty to mitigate his losses. In this regard, the
Defendants point out that Mr. Guzman Gonzalez was referred to twelve
sessions of physiotherapy, but only attended five sessions, he was spending
money on cigarettes rather than on physiotherapy, and that he had not changed
his exercise program despite the fact that he claimed that he still had some
symptoms arising out of the accident.
[33]
Despite the cross-examination of Mr. Guzman Gonzalez,
Mr. Snip, and Dr. OConnor, the Defendants presented no evidence that
additional sessions of physiotherapy would have benefitted Mr. Guzman
Gonzalez or would have lessened his pain and suffering or the duration of it.
Mere theories advanced by counsel for the Defendants are not enough to meet the
obligation that rests on the Defendants to show on a balance of probabilities
that Mr. Guzman Gonzalez has failed to mitigate his losses. Accordingly,
the amount awarded for pain and suffering of Mr. Guzman Gonzalez is not in
any way reduced by the theory advanced by the Defendants that Mr. Guzman
Gonzalez failed to mitigate his losses.
PAST WAGE LOSS
[34]
It was the submission of Mr. Guzman Gonzalez that overtime was lost
to him as a result of the accident. When Mr. Guzman Gonzalez returned to
work, he was transferred to an area that had less physical demands on him. Mr. Guzman
Gonzalez testified that there was less overtime available to him in that new
area and that he lost overtime income as a result.
[35]
In evidence was a chart listing the overtime that was available to Mr. Guzman
Gonzalez both before and after the accident. In the four pay periods prior to
the collision, overtime averaged 14.25 hours whereas in the four pay periods immediately
after the accident, the average was 31 hours. Similarly, in the eight pay
periods prior to the accident, the average was 28.5 hours, whereas in the eight
pay periods after the accident, it was 29 hours. In the twelve pay periods
before the accident the average overtime was 35.75 hours per pay period and in
the twelve pay periods after the accident, the average was 29.5 hours. There
appears to be no appreciable difference between the figures arising between the
average overtime available to Mr. Guzman Gonzalez in the six months prior
to the accident and the six months after the accident. It is not until the
figures for one year before the accident and one after the accident are
compared that there is any appreciable difference.
[36]
I cannot conclude that there was any reduction of overtime or that any
reduction of overtime after the accident can be attributed to the new work that
was being undertaken by Mr. Guzman Gonzalez. Without knowing what
overtime might have been available to other employees that would ordinarily
have been made available to Mr. Guzman Gonzalez, I cannot conclude that
there was a loss of overtime after the accident such that Mr. Guzman
Gonzalez should be compensated for that loss. As well, it is not clear to me
that the reduced overtime was not related to the eventual closure of the
business of his employer in March 2010. Accordingly, no award is made to
Mr. Guzman Gonzalez for any past wage loss.
[37]
While Mr. Guzman Gonzalez was originally claiming diminished
capacity and future wage loss, that claim was abandoned at Trial. In any
event, I could not make such a finding.
FUTURE CARE COSTS
[38]
A claim is made for $500 in order to reflect this cost of a personal trainer
or a kinesiologist. However, there was no evidence about the potential cost.
In any event, I cannot conclude that Mr. Guzman Gonzalez will undertake
such treatment in view of the fact that he has not undertaken such services although
Dr. OConnor recommended them in December 2011 and although he was
referred to a physiotherapy/massage therapist on December 5, 2009 by
Dr. Tong. Accordingly, I make no order relating to future care
costs.
SPECIAL DAMAGES
[39]
Special damages of $1,417 are claimed, made up of special damages of
$133 to cover user fees at the physiotherapist, mileage to and from those
appointments, and the cost of a cleaning lady at $8 per hour for three hours
per week over one year, ($1,284). There is cogent evidence available regarding
what was paid to the cleaning lady, as well as how long it was paid and the
duration of the payment.
[40]
Under the circumstances, an award for special damages is made for $133
plus any part of the $1,270.80 damage done to the vehicle being driven by
Mr. Guzman Gonzalez if that amount has not already been paid.
SUMMARY
[41]
Damages of Mr. Guzman Gonzalez will be $27,500 non-pecuniary
damages, plus the special damages noted above. The parties are at liberty to
speak to the question of costs.
_____________ Burnyeat J.______________
Burnyeat J.