IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121018

Docket: S20324

Registry: Chilliwack

Between:

Anna Helen Macdonald

Plaintiff

And:

Daniel Hazel

Defendant

Before: The Honourable Madam Justice Stromberg-Stein

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: This action arises from a motor
vehicle accident that occurred July 31, 2008.  The plaintiff was driving her
1998 GMC Safari minivan, travelling in a T-intersection, when the defendant
entered the intersection on a red light and collided with the plaintiff’s
vehicle on the driver’s side.  There was $3,643.06 damage to the plaintiff’s
vehicle.  Liability is admitted.  At issue is what injuries the plaintiff
suffered in the accident, the impact of these injuries on the plaintiff, and
quantum of damages.

[2]            
The plaintiff’s
claim is for non-pecuniary damages in the range of $80,000 to $100,000; loss of
housekeeping services in the amount of $15,000; loss of future earning capacity
in the amount of $76,500, which is based on an inability to supplement her CPP
disability at a rate of $4,500 a year until age 65; future care for chiropractic
care in the amount of $8,000; and special damages originally claimed and
presented in court as $12,363.70, but by agreement of both parties, reduced to
$10,661.38.

[3]            
It is the position
of the defendant that the award for non-pecuniary damages for should be in the
range of $40,000 to $60,000; special damages are agreed in the amount of
$10,661.38; and there should be a lower amount for cost of future care.  With
respect to the other heads of damages, the position of the defendant is they
are not warranted.

[4]            
Prior to the
accident, the plaintiff suffered from an undiagnosed pituitary tumour and
undiagnosed panhypopituitarism.  She was off work while her medical condition
was being investigated.  At the time, she kept a home that was described as
immaculate.  She was with her husband.  She is an avid gardener, a passionate
pianist, she loved cooking and socializing and hosting family gatherings.  She
was very active in terms of hiking and biking.

[5]            
She claims that
the accident changed her life; her life came to a standstill and the motor vehicle
accident consumed her.

[6]            
The motor vehicle
accident injuries that the plaintiff said she sustained are headache,
left-sided neck pain, left-hand wrist sprain, left-sided low back pain, SI
joint pain, trochanteric bursitis of the left hip, labral tear of the left hip,
and jaw pain.

[7]            
Pre-motor vehicle
accident, the plaintiff’s medical history included not only the hormonal
imbalances, but evidence of knee surgery, following which she developed Complex
Regional Pain Syndrome.  As well, there was evidence of complaints through the
years of left hip stiffness, left SI joint pain, lower back stiffness, and left
neck pain and stiffness and headaches which were often experienced together.  In
addition there is evidence of degeneration of the lumbar spine, mainly
osteoarthritis.

[8]            
Turning to the
claim for non-pecuniary damages, it is the position of the plaintiff that she
had a pre-existing vulnerability due to her hormone problems, and that despite
having hip surgery for the labral tear that she says she suffered in the motor
vehicle accident, she continues to live with pain and capacity issues, both
from her hip and from her wrist mainly, which has affected her enjoyment of
life and ability to carry on day-to-day tasks.

[9]            
As both counsel
have identified, the key issue is causation, with respect particularly to the
hip labral tear.  The plaintiff says that the accident caused the tear.  The
defendant’s position is the accident did not cause the tear, but that it was a
pre-existing problem.  However, in my view, however one looks at it, based on
the medical evidence before me, which I accept, the condition with respect to
the left hip, if not caused by the accident, it was certainly asymptomatic
prior to the motor vehicle accident, and the motor vehicle accident made it
symptomatic.  I will have more to say on this.

[10]        
The other
significant problem that the plaintiff has suffered is a ligament sprain to her
left wrist, which she reports being symptomatic.  There is nothing that can be
done about it according to the doctors, and the last doctor she saw seems to
think it will get better with time, although there is other medical evidence it
is likely to be permanent and she may have to wear a wrist splint for the rest
of her life.

[11]        
In addition, the
plaintiff complains of increased neck pain associated with headaches which she
says is much worse following the accident than it was pre-accident.

[12]        
Dr. Hambleton,
the family doctor, testified that the plaintiff’s injuries were imposed on an
already vulnerable woman, because the plaintiff suffered from her undiagnosed
hormone condition.  Dr. Hambleton explained that the plaintiff’s body did
not properly regulate her various hormones, particularly the hormone cortisol,
which is primarily responsible for assisting the body to deal with stress. 
Cortisol plays an anti-inflammatory function, meaning that it helps reduce
swelling, helps reduce pain, and helps the body to recover from injury. 
Further, when cortisol levels are not in balance, the doctor said the body’s
nerves are more sensitive to pain.

[13]        
Pre-accident the
plaintiff’s cortisol levels were too high due to a pituitary tumour.  Once that
tumour was removed, there was an issue of the plaintiff under-producing
hormones.  Through the years, there has been medical difficulty balancing these
hormones, which has resulted in weight gain and weight loss, in addition to all
of the other problems.  In any event, the plaintiff submits that this condition
meant that her pain threshold was and remains lower and her recovery has been
limited or slowed by the absence of the hormone cortisol.

[14]        
Dr. Hambleton
provided two medical reports. These are set out at tabs 3 and 4 of Exhibit
1, and summarized – and I am just borrowing from both counsels’ submissions – Dr. Hambleton
concluded that the plaintiff suffered various injuries in the accident, being a
full thickness labral tear in her left hip, greater trochanteric bursitis in
her left hip, Grade 2 soft tissue injuries in her neck and upper back,
left-sided headaches, most likely related to the neck injury, soft tissue
injury to the left wrist, the scapholunate ligament, and possible
post-concussive syndrome and Grade 1 soft tissue injuries to her lower back.

[15]        
I will just make a
comment that there has really been nothing said about post-concussive syndrome,
other than just simply the records, for that reference.

[16]        
With respect to Dr. Hambleton’s
evidence, as pointed out by defendant’s counsel, the medical-legal report that
he filed, dated December 23, 2009, indicates that the plaintiff told him that
she had no previous history with respect to the regions injured in the motor
vehicle accident, and Dr. Hambleton did not know about the plaintiff’s
chiropractic history.

[17]        
He testified that
having reviewed the chiropractor, Dr. Porter’s, records, there was nothing
materially significant in that for the plaintiff to have brought to his
attention.  I find that evidence a bit troubling, because there were many
significant things in that record that Dr. Hambleton should have known
about, and may have affected his report, notwithstanding the fact that he says
it did not.

[18]        
Of note, with
respect to Dr. Hambleton, is tthat he plaintiff first mentioned the left
hip problem about eight months after the motor vehicle accident,  on March 20,
2009.  The doctor had said it was February 21, 2009.  That clinical record was
not before the court, so that evidence is a bit puzzling.

[19]        
With respect to
the left wrist pain, the first note recorded by Dr. Hambleton was November
22, 2008, approximately four months after the accident.

[20]        
Dr. Hambleton
maintained had he been informed of the plaintiff’s true medical history prior
to the accident, he would have worded his report to say that the accident
aggravated, not caused, some of the plaintiff’s injuries.  He agreed soft
tissue injuries come from subjective reporting of the plaintiff.

[21]        
Dr. Hambleton
filled out the disability forms for the plaintiff, and indicated the plaintiff’s
disability pension was based primarily on hormonal issues.

[22]        
The plaintiff was
referred to Dr. Gilbart, an orthopaedic surgeon.  His medical-legal report
is at tab 7 of Exhibit 1.

[23]        
To Dr. Gilbart,
the plaintiff denied any pre-existing pain in the regions affected by the motor
vehicle accident.  He admitted that although he had Dr. Porter’s chiropractic
report, he did not cross-reference what the plaintiff reported to him when he
concluded there were not pre-existing injuries as told to him by the
plaintiff.  He said had he cross-referenced, this would not have provided
inconsistencies with the plaintiff’s self-reported history.  However, he did
say he would have reworded his diagnosis to say that the motor vehicle accident
contributed to, but did not cause, some of the pre-existing injuries.  He also
admitted that the plaintiff likely had greater trochanteric bursitis of the
left hip prior to the accident.  He opined that the labral tear was caused by
the motor vehicle accident, as well as the soft tissue injury to the wrist.  He
also acknowledged the plaintiff’s degenerative changes to her lumbar spine
predated the accident, but these were asymptomatic.  In his view, however, he
did not know about the chiropractor’s report of symptoms.  He also indicated
the plaintiff’s headaches were more temporally related to a pituitary tumour. 
With respect to the labral tear, on surgery he found a mild fraying.  Further,
he indicated that the plaintiff was not at increased risk of degeneration or
osteoarthritis as a result of injuries sustained in the accident.

[24]        
Following the
accident, Dr. Gilbart diagnosed  the anterior superior labral tear of the
left hip, greater trochanteric bursitis of the left hip, musculoligamentous
cervical neck and lumbar strain, and ligament strain of the left wrist.  He
indicated that based on the temporal relationship between the accident and the
complaints, and in the absence of any trauma,  they were related to the motor
vehicle accident.

[25]        
There was also an
issue of a subchondral cyst in the plaintiff’s groin.  He said that is likely a
degenerative condition that the accident rendered symptomatic.

[26]        
Despite the
surgery  he performed May 6, 2011, the plaintiff continued to have pain,
particularly with sitting, bending, and stressing the hip.  Dr. Gilbart
indicated there was probably inflammation of the hip joint with some outside
the joint.

[27]        
He indicated that Dr. Porter’s
records, upon review, did not change his opinion because he  there was no
mention of pain in the anterior or front of the groin or hip.  With respect to
the tear, which was a fraying, he said that is neither indicative of trauma nor
degeneration.

[28]        
Dr. Yu was called
by the defendant.  His medical-legal report is at Exhibit 1, tab 9.  His
evidence, and that of Dr. Hambleton and Dr. Gilbart, is consistent,
with the exception of causation for the labral tear.  He described Dr. Porter’s
records as demonstrating evidence of left hip pathology prior to the accident. 
However, as pointed out by plaintiff’s counsel, I do not think Dr. Porter’s
records can go that far.  The records do not mention any specific hip joint
complaints.

[29]        
The defendant
points out with respect to Dr. Yu’s evidence, the neck and back soft
tissue injuries were pre-existing.  Tenderness in the plaintiff’s left wrist
could be, Dr. Yu  said, from the motor vehicle accident.  There is
certainly no evidence of any pre-existing wrist complaints.  Dr. Yu  said the
left hip labral tear can occur without a history of trauma.  He said where the
tear is frayed, as it was in this case, it is less likely to be as a result of
trauma.  It is more suggestive of degenerative changes.  He said the
plaintiff’s pre-motor vehicle history of left hip pathology, and likely the labral
tear, predate the motor vehicle accident, but he said both the tear and
bursitis, if pre-existing the accident, were made symptomatic by the accident.

[30]        
Dr. Porter
was the plaintiff’s chiropractor from June 21, 2007.  He did not testify as an
expert.  He was called to interpret or read his records.  He indicated the
plaintiff never had any groin complaints prior to the accident.  She had some
minor hip complaints on her first visit.  She was treated over ten months,
related to neck, headache and low back complaints, including the SI joint.  He
was never directed to a hip issue or complaint.  He was not specifically
treating the plaintiff’s hip.  He was treating the plaintiff’s hip flexor, not
the hip joint per se.  There were multiple references to bilateral hip
stretches, which he said would relate to the muscles that stabilize the lumbar
spine, and he would have used those stretches to treat the SI joint or back
pain.  He only tested for hip stiffness.  He never assessed the hip joint; nor
did he ever perform any hip impingement tests.  He did say that following the
accident there was a marked difference in the plaintiff’s symptoms, as well as
some various new symptoms.

[31]        
As pointed out by
defendant’s counsel, the plaintiff’s chiropractic history dates from June 21,
2007.

[32]        
I note the
plaintiff did see other chiropractors.  We do not know how many, or who.  There
are no other records before the court.

[33]        
In any event, in Dr. Porter’s
notes, the plaintiff was complaining of chronic headache, neck and shoulder
pain from a skiing accident in 2001.  That was when he first saw her.  This was
aggravated when she did physical work, such as gardening.  She also listed on a
form part of her problems being severe frequent  headaches, frequent neck pain
and lower back problem.

[34]        
Dr. Porter
saw her a number of times for stiffness and soreness in her neck, lower back
and some occasional left hip.  On some occasions, there was a note that the
plaintiff would say no pinching in her left hip.  On one occasion she said her
left hip was sore and that it hurt when she lay on her side.  Counsel’s
argument says left side, but I think it was right side.

[35]        
Prior to the
accident, the plaintiff reported stabbing pain in her left SI joint,
significant enough that she went to the hospital.  She also reported pinching
on the left side of her lower back.  She further reported soreness to her left
hip and a sharp pain in her left SI joint.

[36]        
After the
accident, the plaintiff first saw Dr. Porter on August 15, 2008, and at
that time she did not immediately complain of left hip pain or her left wrist.

[37]        
Prior to the
accident Dr. Porter treated the plaintiff for headache, accompanied with
left-sided neck pain, left lower back, left SI joint, and left hip.  He said
these are the same areas after the accident, but there were some differences in
presentation of the headache and the left lower back.  He said the hip was now
hurting when she lay on her right side.

[38]        
It is also the
evidence of Dr. Thai that the plaintiff had continuing complaints of hip
and groin pain.  He was the chiropractor who performed certain tests that led
to the diagnosis of a labral tear.  He recommended follow-up with Dr. Hambleton. 
Dr. Porter had never performed these same tests.

[39]        
Turning then to
the position of the parties,  the position of the plaintiff with respect to
non-pecuniary damages, is that she was bright, energetic, and fun-loving in the
time leading up to the accident, including in the year before the accident. 
Despite her hormone issues, which did impact her energy levels, she was able to
remain very active with her yard work, housework, playing piano, cooking,
socializing and she was basically full of energy in the months before the
accident.

[40]        
Following the
accident, the plaintiff says that she has suffered pain in many areas of her
body that essentially in the initial months incapacitated her.  She continues
to find many activities very painful, and she does have other limitations,
namely fatigue due to her hormone problems, but she says the pain plays a key
role in her limitations such that she can no longer do many of the things that
she enjoyed, particularly gardening and playing her piano.

[41]        
It is the position
of the plaintiff that she was a vulnerable person prior to the accident, the
classic thin skull plaintiff, and that because she was unable to regulate her
hormones properly, she was unable to regulate pain, stress and her body’s
anti-inflammatory response; therefore the accident made it difficult for her to
regulate the stress, the pain and to properly heal.

[42]        
The position of
the plaintiff is that the defendant is responsible for her injuries, even if
her injuries are unexpectedly severe, owing to her pre-existing condition. 
Plaintiff’s counsel is correct, that at law it is true the defendant is not
responsible for placing the plaintiff in a better position than she was prior
to the accident.  However, her pre-existing hormone imbalance was not causing
her any undue pain.  She was able to go about her daily life, being productive,
and she was at no risk of developing the permanent and disabling pain that she
says she now experiences in her hip and left wrist post-accident.

[43]        
The position of
the defendant is that the plaintiff had pre-existing injuries; namely chronic
headaches, left-sided neck pain, left lower back, SI joint and left hip
problems, that required more than merely visiting the chiropractor for
maintenance every one or two months.  In fact, on occasion, the plaintiff was
in so much pain, she had to attend hospital with respect to one injury to the
SI joint.

[44]        
The position of
the defendant is that the motor vehicle accident had some impact on the
pre-existing condition, but submits that the plaintiff’s current state with
regard to headache, left-sided neck pain and lower back SI joint issues, is as
prior to the accident.

[45]        
The defendant has
pinpointed certain areas where counsel says that the plaintiff has tended to
exaggerate at times, or minimize at times, or compartmentalize her medical
history, suggesting that this impacts the weight to be given to her subjective
reports of continued disability due to pain.

[46]        
I will just note
that there are some inconsistencies in the plaintiff’s evidence, but like the
doctors, I find her to be pleasant, cooperative, and straightforward about what
she says.  It is very difficult to go back a number of years and try to
remember your medical history in any detail without running into some issues.

[47]        
The position of
the defendant with respect to the left wrist is that it is questionable it was
caused by the accident.  It was not initially reported to the chiropractors. 
It was only reported to the general practitioner a number of months after the
accident.  Further, the plaintiff has seen Dr. Axelrod, who has indicated it
will get better with time, and Dr. Gilbart is of the view she should not
be using the wrist splint full time but only as needed to function.

[48]        
Finally, with
respect to the labral tear, I have dealt with the defendant’s position, that is
more likely than not that given the mild frayed tear, it was not caused by a
traumatic event, such as the motor vehicle accident.  I have already indicated
that whether caused or not, it was asymptomatic and probably pre-existing, and
made symptomatic by the accident.

[49]        
Turning to the
amount of non-pecuniary damages, both counsel have referred to a number of
cases and provided casebooks in support.  The plaintiff’s range is $80,000 to
$100,000; the defendant’s range is $40,000 to $60,000.  Counsel has referred me
to all the relevant law and the factors that have to be assessed, and I have
considered all of that.  Despite the plaintiff’s disability before the
accident, I conclude that she was active in various ways, and that her
activities have been significantly restricted due to the accident.

[50]        
In terms of her
prognosis, Dr. Hambleton describes it as guarded because of her hormonal
condition.

[51]        
Dr. Gilbart
says she is poor for any significant clinical improvement, describes permanent
partial disability restricting her ability to work and perform daily activities
without pain, but he indicates there is no mechanical reason why she could not return
to a sedentary occupation.  There is no reason with a wrist splint why she
could not do some work, although not repetitive heavy lifting.  He indicated
that she is not at increased risk for degenerative osteoarthritis due to the
motor vehicle injuries.

[52]        
Dr. Thai
opined that she was unable to work because of headaches and low back.  He said
that the motor vehicle accident, combined with pituitary issues, likely is a
cause of her symptoms.  The motor vehicle accident alone is not the sole cause.

[53]        
Dr. Yu indicated
that return to employment was uncertain for many reasons,  not the least of
which she has been out of work for seven years, she has ongoing neck and back symptoms
and headaches, and her age.

[54]        
Based on all of
the evidence that I have referred to and have heard and considered in this
case, in my view the general damages for pain and suffering and loss of
enjoyment of life is in the amount of $80,000.

[55]        
Turning to the
issue of loss of capacity.  The plaintiff’s claim is for loss of opportunity to
supplement her disability benefits.  The plaintiff acknowledges her
non-accident disability, and thus she is not claiming for past income loss. 
She is claiming the amount of $4,500 a year for the next 15 years.  The
plaintiff relies on a number of cases, but one in particular I will cite, Viner-Smith
v. Kiing, 2009 BCSC 1387, in support of the proposition that a person
already receiving disability benefits is entitled to an award for loss of
capacity.  Even if the accident injuries give rise to only a minimal change to
the plaintiff’s pre-accident earning capacity, the plaintiff submits that she
is disabled due to her panhypopituitarism but that her injuries, specifically
her wrist and hip complaints, have robbed her of the ability or opportunity to supplement
her CPP benefits.

[56]        
In response, the
defendant relies on Perren v. Lalari, 2010 BCCA 140.  In that case, the
Court of Appeal concluded that the plaintiff must always prove that there is a
real unsubstantial possibility of a future event leading to an income loss,
prior to looking at any forms of quantification.  Once established, then the
plaintiff’s loss can be quantified by either of two methods, an earnings
approach or a capital asset approach.  The defendant submits that there is no
real and substantial possibility the plaintiff will incur an income loss, given
that the plaintiff was unemployed at the time of the accident and remains
unemployed, primarily because of her hormonal issues.  She is on CPP disability
and is likely to continue on that disability.  She claimed that she may have
been able to obtain a job with a veterinarian, or teaching piano.  The claim
with respect to the veterinarian job is vague and uncertain and certainly
unsubstantiated, and I agree with defendant’s counsel  it was more of a hope
than a reasonable expectation.

[57]        
I do not see any
reason why she could not actually teach piano, as defendant’s counsel pointed
out.  In any event, should she choose to return to her job as an administrative
assistant, the medical evidence supports that she should be able to do such a
job, but she has indicated she has made no efforts to find any job.  In my
view, it is the non-motor vehicle-related hormonal problems that are preventing
her from finding work.  It is unlikely that she would have a working life of 15
years, or at all, and I award nothing for loss of future earning capacity.

[58]        
In terms of loss
of housekeeping services, the plaintiff seeks $15,000, and that is mainly due
to the increased assistance provided by her husband.  In my view, the evidence
simply does not support this claim.

[59]        
In terms of future
care, the test for establishing such a claim is medical justification for the
cost of future care, and the claim must be reasonable.  In this case there is
medical justification for the claim of cost of future care for chiropractic
care, and in my view it is reasonable. The plaintiff is seeking a modest amount,
$8,000, and I will award her that amount.

[60]        
In terms of
special damages, that was reduced by one-third for chiropractic user fees
because of evidence that the plaintiff’s husband gave that she was probably
going two-thirds more to the chiropractor now than she was before the
accident.  So special damages are agreed at $10,661.38, and that attracts
court-ordered interest.

[61]        
I think that that
covers everything.

[62]        
MR. HIBBERT: 
Yes, My Lady.

[63]        
THE COURT:  The
issue of costs.

[64]        
MR. MORGAN: 
Just there is one small cost, this, the award for — I do not know what the
interest would be, but I think we are around about just under a hundred
thousand dollars for the amount of the award, I just would like to say that I
would submit that the costs should be just regular costs and not pursuant to
Rule 15-1, that are some…

[65]        
THE COURT:  Oh
were you here pursuant to Rule 15-1?

[66]        
MR. MORGAN: 
No.

[67]        
THE COURT:  Oh.

[68]        
MR. HIBBERT: 
Well, I think what happened, My Lady, is that we — it was under Rule 66, that was
not actually changed.

[69]        
THE COURT:  She is
entitled to her costs.  There is no reason why she should not get her costs,
unless there is an offer that I do not know anything about.

[70]        
MR. HIBBERT: 
Right.

[71]        
MR. MORGAN: 
Well, there is offers, but I do not think —

[72]        
THE COURT: 
Nothing that —

[73]        
MR. MORGAN: 
— that they triggered, I do not think either of them are triggered, so it is
just a matter of I am just asking the costs be, you know, regular scale —

[74]        
THE COURT:  Right.

[75]        
MR. MORGAN: 
— and not as if pursuant to Rule 15-1.

[76]        
THE COURT:  I do
not see any reason why not.

[77]        
MR. HIBBERT: 
I will take what My Lady says —

[78]        
THE COURT:  Okay.

[79]        
MR. HIBBERT: 
— because I have no instructions.

[80]        
THE COURT:  Costs
are regular costs in the ordinary course.

"STROMBERG-STEIN
J."