IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120301

Docket: M103035

Registry:
New Westminster

Between:

Andrei
Kartouchine

Plaintiff

And

Valerie
J. Coons and David A. Coons

Defendants

Before:
The Honourable Madam Justice Griffin

Oral Reasons for Judgment – Summary Trial

In
Chambers

[1]            
THE COURT:

Introduction

[2]            
This is a summary trial application brought by the plaintiff for
judgment on a personal injury claim in connection with a motor vehicle accident
on September 21, 2005.  The defendants did not contest liability for the
accident but say that the plaintiff has not met the burden of proof to prove
that he suffered any damages.  Both parties agree that the case is suitable for
trial by summary trial application pursuant to R. 9-7.

[3]            
In support of his application for judgment for damages, the plaintiff
filed only one affidavit, his own, sworn October 5, 2011.  He attached as
exhibits some untranslated documents in the Bulgarian, Russian, and Lithuanian
languages.  In response to the defendants’ objections, the plaintiff filed a
second affidavit today attaching translations of those foreign language
documents.

[4]            
The nature of the plaintiff’s alleged injuries can best be described as
whiplash-type or soft tissue injuries to his neck and back following a low
impact accident.  The plaintiff, who is 31 years old, claims non-pecuniary
damages in the range of $50,000 to $75,000, cost of future care in the amount
of $2,615 to $4,915, and special damages of $1,090.35.

Circumstances of the Collision

[5]            
There is not much evidence from the plaintiff describing the
circumstances of the collision.  The plaintiff simply says that he was
"rear-ended" when stopped in traffic during rush hour.  He does not
describe the impact as violent or high-speed or causing any extensive property
damage or movement of his body.

[6]            
The defendant Valerie Coons was driving the other vehicle.  The defence
evidence from Valerie Coons, an eyewitness, and two ICBC estimators suggests
that the accident was at most a very minor rear-end collision.  However, even
minor accidents may sometimes cause injuries as noted in Gordon v. Palmer (1993),
78 B.C.L.R. (2d) 236 at 237 (S.C.).

[7]            
I find as a fact that a collision did occur due to the fault of the
defendant on September 21, 2005.  The defence evidence regarding the minor
nature of the collision does not prove that the mechanism of the collision
could not have caused some type of whiplash injury.  It remains to be proven by
the plaintiff on a balance of probabilities that the accident did in fact cause
injuries to the plaintiff, the nature of those injuries, and any entitlement to
damages flowing as a result.

Plaintiff’s Claim for Non-Pecuniary Damages

[8]            
The largest aspect of the plaintiff’s claim is the non-pecuniary damages
claim and so I will turn to that first.

[9]            
Mr. Justice Voith in Lahkani v. Elliott, 2009 BCSC 1058 at para. 104
cited the factors that influence an award of non-pecuniary damages including
age of the plaintiff, nature of the injury, severity and duration of pain,
disability, emotional suffering, loss or impairment of life, impairment of
family, marital, and social relationships, impairment of physical and mental
abilities, loss of lifestyle, and the plaintiff’s stoicism.

[10]        
In argument, plaintiff’s counsel said at para. 83 of her written
submission that the injuries have been "chronic and intermittent since the
collision with relatively pain-free periods interspersed with periods of pain
and stiffness of variable severity".  In other places in argument
plaintiff’s counsel submits that the injury "while it is improved still
has flare-ups and has continued on this roller coaster path since the
collision".

[11]        
To this, I ask the question:  where is the evidence that supports these
conclusions?

[12]        
As for the evidence of the plaintiff’s injuries following the accident,
the plaintiff relies on his own description at paras. 8-9 of his
affidavit:

8.         As a result of the Accident, I suffered numerous
injuries, including injuries to my neck, throat, ribs, back, headaches and
numbness and tingling in right hand and fingers.  My most serious injuries were
to my neck, upper back and shoulders.

9.         Immediately after the Accident
I felt a sensation of shock.  I drove to work and about one hour later I
started to experience numbness and tingling in my right hand and fingers as
well as pain on the left side of my neck and left shoulder.  I completed my day
of work and noticed that the pain and numbness got worse throughout the day.

[13]        
As noted, the motor vehicle accident was in September of 2005.  Other
than the above description, the plaintiff’s affidavit simply asserts as a fact
that he received physiotherapy, massage therapy, acupuncture and spa treatments
in Europe "for his injuries" in the years that followed.  He then
asserts at paras. 39-46 of his affidavit as follows:

39.       To date, I am still suffering from neck stiffness
and pain, upper back and shoulder pain.

40.       I still experience episodes, a few times per year,
when the pain and stiffness is so severe that I am unable to move my neck to
the side or down.  These episodes usually last two to three days.  When the
episodes occur, I take strong painkillers to get me through the day.

41.       Since the Accident occurred, my mother, whom I live
with, has continued to massage my neck and shoulder area with anti-inflammatory
gel and oregano oil a few times per week.

42.       I am afraid that the injuries I sustained will make
me more susceptible to further injury in the future.

43.       My Accident-related injuries have adversely
affected my social activities.  Prior to the Accident, I enjoyed tennis,
bicycle riding, skiing and soccer.  I have returned to some tennis, bicycle
riding and gentle skiing.  I have not returned to soccer since the Accident,
due to pain in my neck and shoulders.

44.       As a result of the injuries I sustained in the
accident, I am able to perform most essential domestic chores such as cooking,
cleaning, and laundry; however, performing heavier cleaning and vacuuming
aggravates my neck and shoulder pain.

45.       When I experience the bad episodes, I am unable to
do many of the social activities or domestic chores that I usually do.  During
these times, I have assistance from my mother.

46.       As a result of the
injuries I sustained in the Accident, I developed some depression, sleeping
difficulties when the pain is very intense, and anxiety when I drive through
the area where the Accident occurred.

[14]        
The mere assertion by the plaintiff that almost seven years after the
motor vehicle accident in September 2005 he has episodes of pain and stiffness
is not enough to satisfy me on a balance of probabilities of the truth of the
fact.  This is the kind of fact that while it may be inherently subjective due
to the nature of the injuries, it can be, to some extent, corroborated if it is
true by observations of medical doctors, family members, friends, or
employers.  As well, providing details of the plaintiff’s lifestyle before and
after the motor vehicle accident can assist the Court in determining the
truthfulness of these allegations.  With respect, these details are absent from
the plaintiff’s affidavit evidence.

[15]        
Just turning for a moment to his description of his activities, the
plaintiff describes being able to enjoy tennis, bicycle riding, and gentle
skiing, but no longer soccer.  I do not understand how he could enjoy active
activities such as tennis, bicycle riding, and skiing yet not enjoy soccer, and
how that somehow relates to the accident.

[16]        
Also starkly absent is what happened between the accident and the date
of his affidavit of October 5, 2011.  Has he always had these periodic episodes
of pain?  How often are they?  How is his lifestyle impacted?  How active is he
day-to-day?  How do we know something else in his life or job has not occurred
to cause these episodes?

[17]        
In short, the evidence of the plaintiff is so vague that it does not
permit me to draw any conclusions in respect of the duration or severity of
ongoing injuries.  He has not supplied sufficient detail to enable me to assess
the probability that what he asserts is true.  His affidavit is an outline only
which is not coloured in.

[18]        
Plaintiff’s counsel submits at para. 127 of the written submission:

127.     The medical expert
reports document the plaintiff’s injuries showing several years of pain and
stiffness which is intermittent but at times quite severe.  The affidavit of
the plaintiff documents a continuing struggle over six-and-a-half years and his
efforts at mitigation.

[19]        
I must take these submissions as rhetorical hyperbole rather than
evidence‑based.

[20]        
The medical evidence such as it is, does not support the plaintiff’s
submissions.  The plaintiff does attach clinical records to his affidavit but
these are largely illegible.  Nowhere in his affidavit does he say that the
records accurately record his visits to doctors or his complaints made to the
doctors.  There is no evidence that the clinical records accurately record
observations made by the physicians either.  Simply appending them to his
affidavit does not establish the truth of their contents.  I find them to be
completely useless to support his case.

[21]        
It is the case that the plaintiff has filed as exhibits to his affidavit
two letters from medical doctors:  a letter from Dr. Hershler dated March
31, 2008, and a letter from Dr. Lazowski dated October 14, 2008.  It has
been pointed out that these opinions do not meet the form required by the Supreme
Court Civil Rules for independent opinion evidence.  Counsel for the
plaintiff points out that this is because the letters were prepared before the
current Rules were brought into force.  She advises the Court that one
of the doctors, Dr. Lazowski, has since retired and may have moved back to
Poland.

[22]        
Leaving aside the issue of the form of these letters, even if they were
admitted into evidence in their current form, I would be unable to give them
much if any weight.  They are entirely unpersuasive because the underlying
facts of the opinions have not been proven in evidence and the content of the
letters is simply too vague to persuade me of their conclusions.

[23]        
I will start with the report of Dr. Lazowski since he was the
family physician for the plaintiff.  He refers to the fact that he examined the
plaintiff in the afternoon of the day of the motor vehicle accident, September
21, 2005.  Other than the patient’s reports of headache, neck pain, muscle
pain, difficulties in swallowing and anxiety, the doctor himself found no symptoms
on examination.  He noted that the patient had full range of motion, no
numbness, and no weakness.  This is contrary to the plaintiff’s affidavit
evidence that he had numbness and tingling in his right hand and fingers.

[24]        
There is a comment in the report that states "tenderness both
lateral ribs and lower cervical spine" but it is unclear what this means. 
The doctor does state in his report: "Impression: cervical sprain
(whiplash or soft tissue injury)".  His report is too brief to provide the
logical support for this conclusion other than the patient’s own reports. 
Accepting as true that the plaintiff did report having some symptoms on the day
of the accident consistent with whiplash, the severity of the whiplash and
long-term prognosis are unanswered.

[25]        
Dr. Lazowski goes on to state that the patient continued to come in
to see him and another doctor until May 29, 2008, and continued to report pain
in the neck and shoulders that prevented him from work in the period from September
21, 2005 to January 11, 2006.

[26]        
The plaintiff did not say in his affidavit that his problems were so
severe that they prevented him from working for more than three months.  There
is a notable absence of evidence supporting this factual assumption relied upon
by the doctor.

[27]        
Given that the physician had to rely a great deal on the patient’s own
history, I would expect that Dr. Lazowski gave considerable significance
to the patient’s reports of being unable to work and that this must have
influenced the doctor’s opinion, especially since the doctor saw fit to mention
it.

[28]        
The fact that the plaintiff did not provide evidence under oath in
support of the assumption that he took more than three months off work due to
pain significantly undermines the factual basis for Dr. Lazowski’s opinion
and hence the weight of the opinion.

[29]        
I was advised orally in submissions that the plaintiff lost a job for
unrelated reasons due to layoffs.

[30]        
Dr. Lazowski concludes his report as follows:

My diagnosis of Mr. Kartouchine’s condition as neck sprain
was based on:

– mechanism of injury (low impact
accident)

– symptoms reported to me on the
day of accident visit

– physical examination

[31]        
With respect, this does not provide enough information to be
persuasive.  Furthermore, once I ignore Dr. Lazowski’s reliance on the
factual assumption that the plaintiff missed three months of work due to his
injuries, I have no idea from Dr. Lazowski’s letter how it is that the
plaintiff’s purported neck strain interfered with his daily life such that it
would support an award for non-pecuniary damages.

[32]        
In short, Dr. Lazowski’s letter is simply too vague to persuade me
it is based on any application of medical expertise or proven facts as opposed
to being based simply on what the patient told him about having some pain and
missing work.

[33]        
Since Dr. Lazowski’s opinion relies on these subjective complaints but
the plaintiff did not explain or prove these complaints in his own affidavit, I
find that his opinion is unproven.

[34]        
As for Dr. Hershler’s opinion dated March 31, 2008, this was based
on a single visit with the plaintiff on March 31, 2008.  He relies on a number
of facts as reported to him by the plaintiff as set out in his report, many of
which are not proven by the plaintiff in his own affidavit evidence.  For
example, like Dr. Lazowski, Dr. Hershler relies on the plaintiff’s
report that due to the accident he could not continue working.  He also recites
facts as apparently told to him by the plaintiff about neck stiffness, days off
work, and problems shoulder checking while driving, which problems the
plaintiff did not set out in his own affidavit, and thus these assumed facts on
which the opinion is based are unproven.

[35]        
Dr. Hershler notes that on physical examination of the plaintiff he
noted an acute pain response in the upper left trapezius to palpation.  He also
noted a loss of range of motion in the neck.  However, it is striking that this
was not reported by Dr. Lazowski in his report.  As well, there was no
logical explanation as to how this might relate to the accident other than the
patient’s own history.

[36]        
As I mentioned, the soreness on palpation and the limited range of
motion was not noted earlier by Dr. Lazowski who apparently followed this
patient from the day of the accident until May 2008.  This is a significant
inconsistency which is not explained.  If anyone should have detected soreness
from palpation in the left shoulder trapezius or limited range of motion due to
the accident, one would have thought it would be Dr. Lazowski who had seen
the patient for approximately three years since the accident.

[37]        
Again, I note that Dr. Hershler makes it clear that his opinions
are based in part on the history given by the patient.  Given that much of the
history he recites in his report is unproven, combined with the inconsistency
between his medical findings and that of Dr. Lazowski, I am unable to give
his opinions any weight.

[38]        
I also note that Dr. Hershler’s assessment of the plaintiff was
some time after the plaintiff apparently hurt his neck lifting a 300-pound
table as reported to Dr. Lazowski in the clinical records as of January
2006.

[39]        
While the defence points this out in submissions, I note that the
plaintiff’s counsel did not take any position that it was untrue.  Rather, the
plaintiff simply says "the medical evidence does not support treating me
lifting up the 300-pound table as an intervening event."  That may be so,
but nevertheless I wonder why it is that the plaintiff, sometime prior to
January 2006, thought he could lift a 300-pound table.  It does not seem like
behaviour of someone suffering ongoing injuries.

[40]        
The plaintiff says I should read the clinical records of Dr. Lazowski
to draw conclusions regarding how lifting the table interacted with the ongoing
injuries from the motor vehicle accident.  I do not consider this appropriate. 
I cannot rely on my interpretation of the rather illegible medical records to
draw conclusions as to medical opinions where there is no supporting medical
opinion report.  No mention is made in Dr. Hershler’s opinion of the
problem with lifting the 300-pound table in January 2006 and I have no idea
whether he even knew about it.

[41]        
I also find it significant that Dr. Hershler recommended only
moderate treatment.  At p. 43 of the plaintiff’s affidavit, which is the
last page of Dr. Hershler’s report, he recommended massage therapy of one
treatment weekly for six months and daily application of heat and stretching. 
He then wrote that a reassessment in 18 months following such treatment would
enable him to be clearer in regard to his long-term prognosis.  There is no
evidence of any such reassessment and no evidence that the plaintiff followed
the recommended treatment.

[42]        
In conclusion, I do not find there to be sufficient medical evidence to
persuade me that the collision caused the plaintiff to suffer long-term
injuries causing him continued pain and suffering and the loss of enjoyment of
life.

[43]        
Considering the factors influencing an award of non-pecuniary damages, I
find that the evidence only supports the conclusion that the plaintiff suffered
some minor inconvenience and discomfort as of the date of the accident when he
felt it necessary to see his medical doctor.  I therefore award him $2,000 in
non-pecuniary damages.

Cost of Future Care

[44]        
As for cost of future care, the plaintiff argued at para. 132 of
the written submission:

Inherent in the ongoing condition
of the plaintiff is the need for pain management modalities and funds to assist
the plaintiff to live a life that is as close to his pre-accident levels as
possible.  A sum should be awarded to allow the plaintiff to continue to seek
pain relief even if this relief is temporary.

[45]        
This claim seems entirely fanciful.  That medical evidence is necessary
to support a claim for damages for cost of future care is trite law: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 83-84 (S.C.), cited by the
plaintiff in argument.

[46]        
The plaintiff says the cost of future care claim is supported by the
evidence of Dr. Hershler.  I have already pointed out that I am
unpersuaded by Dr. Hershler’s opinion.  In any event, his recommendations
were made back in March 2008 following which he recommended a reassessment. 
Four years have elapsed since then.  Not only has there been no reassessment or
at least no evidence of any reassessment, there is no medical evidence to
suggest that in 2012 and going forward the plaintiff will need future care.

Special Damages

[47]        
As for special damages, the plaintiff acknowledges that in order to
recover his special damages expenses have to be incurred on the recommendation
of medically qualified persons.

[48]        
At para. 19 of the written submission, the plaintiff argues as
follows:

19.       The plaintiff also
attended for various treatments including massage therapy, physiotherapy, hot
steam, mud and shower treatments, electric therapy and other such treatments to
assist with managing his pain symptoms from his collision related injuries. 
The plaintiff attended at the Hissar Spa in Bulgaria, the Tselebny Narzan Spa
in Russia and the Grand Spa Lietuva in Lithuania for the above treatments. 
Because the plaintiff is Russian and he occasionally visits Russia and
surrounding countries, he uses this time to take advantage of the cheaper
treatment rates in these countries while he was visiting.  The plaintiff paid
for the treatments out-of-pocket and is not claiming reimbursement for
non-treatment related expenses such as hotel stays or meals.

[49]        
There is no medical evidence that supports the claimed spa treatments in
Eastern Europe.  I must say these treatments simply raise questions for me such
as why is it that the plaintiff is able to take long flights to Eastern Europe;
in what activities does he engage in these trips; and what kind of life does he
lead day-to-day?  I cannot be satisfied given the lack of detail or supporting
evidence that the spa treatments are related to his injuries instead of simply
recreational.  I do not accept that these treatments were medically necessary
or related to his injuries and the evidence falls short of proving this.

[50]        
As for the remaining special expenses, they are claims for expenses
which occurred in 2008, some three years after the motor vehicle accident.  This
includes two massage treatments in 2008, a massage treatment in 2010, and a
massage treatment in 2011, as well as over-the-counter pain medications.  I
have already stated that I did not find persuasive Dr. Hershler’s
opinion.  I am not satisfied that these expenses are related to the motor
vehicle accident some three years or more earlier.

Conclusion

[51]        
In conclusion, in this claim for damages the plaintiff’s evidence has
fallen well short of proving that the collision caused him damages other than
nominal inconvenience which would fall into the category of non-pecuniary
damages and which I value at $2,000.

[52]        
That concludes my judgment.  If the parties wish to speak to costs now
you may.  We can take a quick break or we can set another date if necessary or
you can try to resolve it between you and then let the Court know.  We will
take a 15 minute break.

[COURT ADJOURNED AT 3:34:32 P.M.]
[COURT RECONVENED AT 3:54:22 P.M.]
[DISCUSSIONS WITH COUNSEL]

[53]        
MS. SOVANI: I spoke with my friend and we have agreed to
the defendants paying the plaintiff’s disbursements, to be agreed or assessed.

[54]        
THE COURT: Okay.  All right then.  That will be the order of
costs.  I will ask the plaintiff to draw up the order just so there is one on
the file.  Thank you.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin