IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130315

Docket: M134294

Registry:
New Westminster

Between:

Kaela Rae Lessey

Plaintiff

And

Amy Canuel and
Elaine Canuel

Defendants

Before:
The Honourable Mr. Justice K. Ball

Reasons for Judgment

I.                
Introduction

[1]            
This case concerns a claim for damages by the Plaintiff, Kaela Rae
Lessey (“Ms. Lessey”), arising out of a low velocity rear end motor vehicle
accident which took place on the 17^th day of August, 2005 at or near
the intersection 76^th Avenue and 152^nd Street in the City
of Surrey, British Columbia. Ms. Lessey was a passenger in a vehicle then
driven by her mother which was struck from the rear by a vehicle driven by Amy
Canuel and owned by Elaine Canuel. Liability for the accident has been admitted
by the Defendants.

[2]            
The issue in this case is the quantum of damages suffered by the
Plaintiff. The Court must assess (a) non-pecuniary damages for pain, suffering
and loss of enjoyment of life and daily activities; (b) special damages; (c) Court
Order Interest; and, (d) Costs.

II.              
The Facts

[3]            
Ms. Lessey, born in 1992, was 13 years old at the time of the accident. She
was then a high school student. Ms. Lessey, her mother and her grandmother were
travelling to a scheduled event at a restaurant when the accident occurred. She
was sitting in the rear passenger seat of her mother’s vehicle which was
stopped facing the red traffic control light at the corner of 152^nd
Street and 76^th Avenue in Surrey. At the time of the accident, Ms.
Lessey was wearing a seat belt.

[4]            
Mrs. Lessey intended to turn onto 152^nd Street. She waited
until the light turned green and was still waiting for a vehicle immediately in
front of her to move when her vehicle was struck from behind by the vehicle
driven by Amy Canuel. The two drivers exited their vehicles and had a brief
discussion. Everyone got out of the Lessey vehicle at the time of the accident.
The vehicles were blocking traffic.

[5]            
After the accident, the drivers of the two vehicles agreed to move to
the video rental store nearby, where Ms. Canuel worked, for the purpose of exchanging
driver and insurance information. After the exchange of information, the Lessey
vehicle continued on to the restaurant.

[6]            
Ms. Lessey found that immediately after the accident her back stiffened
and became uncomfortable. She also felt dizzy. She reported these symptoms to
those present with her. After dinner at the restaurant, Mrs. Lessey drove her
mother home and then drove with Ms. Lessey to her home where Ms. Lessey went to
bed.

[7]            
The next morning, Ms. Lessey’s back and neck were stiff and felt sore. With
her mother as company, she went to see a doctor at the King’s Cross walk-in
medical clinic near her home. Both Ms. Lessey and her mother spoke to the
doctor at the clinic. The medical clinic was closer to her home than the
Lessey’s family doctor, Dr. McKenzie, whose practice was located in Richmond.

[8]            
Ms. Lessey reported that the dizziness went away the day following the
accident.

[9]            
The doctor at the clinic referred Ms. Lessey to a physiotherapist. . The
doctor did not prescribe medication. Consistent with the doctor’s referral, Ms.
Lessey made an appointment to see a physiotherapist a few days later. The physiotherapist,
Moez Dhanji, examined Ms. Lessey noting areas of pain reported in the lumbosacral
region with decreased range of motion and strength. He also noted reported pain
in the interscapular region of the upper back. He initially diagnosed low back
strain on September 1, 2005. He then administered physiotherapy treatment
including electromassage. Mr. Danji prescribed a regimen of exercises, as part
of an active rehabilitation program, exercises which Ms. Lessey performed on a
regular basis thereafter including leg raising to chest level, hip rotations,
and back stretching movements. The exercises were recommended to be performed
three times each day for about ten minutes. Ms. Lessy performed the exercises
as prescribed for some period of time.

[10]        
On a second visit to the physiotherapist, treatment including electromassage
was conducted on her neck and back. Ms. Lessey continued to perform the
exercises as prescribed, that is, and I quote “I did exercises three times a
day for ten minutes. I did the exercises for a period of time.”   She was also
prescribed a regimen of stretching exercises which she performed several times
a day after long periods of sitting in high school classes. During the period
of physiotherapy appointments, three in total, Ms. Lessey reported that the
stiffness in her neck was gradually reduced and improving as she continued to
do the prescribed exercises. . On the third appointment, apart from stretching
and exercises, Mr. Dhanji also prescribed riding a stationary bicycle for at
least ten minutes each day.

[11]        
Ms. Lessey continued to have some pain in her neck and back but was
encouraged to continue to be physically active as a rehabilitative measure. Her
mother was involved professionally in exercise programming and encouraged her
daughter to continue with an active rehabilitation program which included
exercise, stretching, and on several occasions Yoga movements performed in
heated rooms. She was physically active during her high school years; playing both
soccer and rugby. She found that at times the pain in her back prevented her
from playing these sports. Her coaches, she reported, were aware of her
condition and would allow her to sit out games, or portions of games or
practices, when her back was too painful. Despite an active rehabilitative
program of exercise, bouts of lower back pain persisted for Ms. Lessey.

[12]        
In a consultant’s report dated November 17, 2009, prepared by Dr. G.
Slobogean for Dr. F. Miyanji, at the Orthopedic Clinic Children’s and Women’s
Health Centre, the attendance of Ms. Lessey at the Scoliosis Clinic was noted
and the following comments were recorded at that time:

She reports that three years ago
she was involved in a low speed motor vehicle collision. Since then, she has
had low back pain. The pain comes approximately three times a week and is
mechanical in nature. It does not bother her during sleep. She has no
neurological symptoms. She is actively involved in hot yoga and rugby in
school. During her physiotherapy sessions for low back pain, it is noticed that
there was some pelvic asymmetry. This prompted an x-ray of her spine and a
diagnosis of scoliotic curve.

The report continued in its
final paragraph:

We have educated her regarding
maintaining an active lifestyle and healthy back.

[13]        
The same clinic examined Ms. Lessey on November 18, 2010. At that point
in time, it was reported by Dr. Dhawale for Dr. Miyanji:

At present Kaela has no
complaints. She does not have any back pain and has not noticed any progression
in her back curvature. She is involved in running and some yoga exercises in
terms of physical activity.

[14]        
On examination, it was reported at the clinic on that date that she had
no tenderness in her back . Ms. Lessey was also seen by her medical doctor, Dr.
Robert McKenzie, whose expert report was filed in these proceedings dated
January 9, 2010. Following the accident referred to above she was first seen on
May 13, 2008. Ms. Lessey reported the circumstances of the accident to Dr.
McKenzie “the pain in her back had persisted through the years until I saw her
on May 13, 2008. She reported at that time low back pain after activity. She said
she would tough it out”. Examination by the doctor showed tenderness of the
lower lumbar spine with a normal range of motion. The  x-ray of her lower back showed
scoliosis convex to the left. Dr. McKenzie knew Ms. Lessey was attending hot
yoga three times per week and playing rugby. She was carrying out her normal
activities and sleep was not disturbed by pain. . Ms. Lessey was encouraged to
continue her exercise and an x-ray was ordered to determine the extent of the
scoliosis. . She was asked to follow up with Dr. McKenzie after the x-ray.

[15]        
She reported to Dr. McKenzie that following her appointment with Dr.
Schweigel, an orthopedic surgeon, and the x-ray, that the scoliosis was not
significant enough to require operative treatment but that Dr. Schweigel had
encouraged her to stay active. Ms. Lessey attended Dr. McKenzie’s office again
on January 9, 2010 where she reported persistent back pain with increased
activity and some stiffness in her lower back in the early mornings.

[16]        
She reported that she found relief through the hot or Bikram yoga which
she was attending. On examination she showed mild tenderness to palpation in
the lower lumbar spine with a normal range of motion. Dr. McKenzie’s opinion
was as follows:

Based on my clinical history provided Kaela Lessey and based
on my physical examination, it is my view that Kaela suffered a soft tissue
injury as a result of a motor vehicle accident. It is significant that she had
no pain prior to the motor vehicle accident. Treatment to this date as
consisted of physiotherapy and massage therapy on a few occasions and she is
active in sports and attends hot yoga which is helpful.

Her symptoms are persisting
nearly five years after her accident and for this reason it would be unclear if
they would resolve totally. It seems that her scoliosis was not a factor prior
to her motor vehicle accident. The motor vehicle accident is clearly not the
cause of the scoliosis. . Though she has experienced pain, it has not caused
her to miss school or interfere with her normal activities. I feel there is
still room for further improvement.

[17]        
The doctor recommended an active rehabilitation program which might
improve her symptoms to near baseline. On April 28, 2011 Dr. McKenzie provided
an addendum to his previous medical-legal opinion dated January 9, 2010. Ms.
Lessey had attended Dr. McKenzie’s office on April 19, 2011 and he noted:

At that time she reported intermittent
discomfort in the left thoracolumbar, soft tissue with heavy physical activity
or if she slept in an awkward position.” Symptoms however would resolve quickly
and have not interfered with work or social activities. Exam on that day was
normal.

[18]        
Ms. Lessey also reported to Dr. McKenzie on that date that she was
attending the gym twice per week using an elliptical machine and treadmill as
well as lifting weights. Dr. McKenzie recommended a referral to a personal
trainer or kinesiologist with a three month gym pass to set up a proper
exercise program.

III.            
Positions of the Parties

[19]        
Counsel for the plaintiff submits that the plaintiff suffered an injury
in the motor vehicle accident. That injury has been supported by the evidence
of Ms. Lessey, her mother and her grandmother as well as the evidence of both
her physiotherapist and her medical doctor, Dr. McKenzie. While this is not the
most serious injury which might have occurred, she is entitled to compensation for
the injury which did occur.

[20]        
The defence position is that initially the accident was of such a minor
nature that no injury was caused to the plaintiff. Alternatively, if the
accident caused an injury to the plaintiff, it was of such a minor nature that
it did not reach the threshold necessary to claim for damages.

[21]        
In the further alternative, the defendant says that if the injury caused
by the accident is found by the Court to meet the threshold for damages then
the injury was only a minor soft tissue strain to the plaintiff’s back.

[22]        
In the circumstances of this case, which I will discuss further below, I
am unable to give effect to the first two positions taken by the defence. I
found the evidence of Dr. McKenzie particularly helpful. He gave his evidence
in a clear style which was designed to assist the Court in coming to a
conclusion; not as an advocate for a party but an examiner of the facts, both
reported and observed in his medical care and examination of Ms. Lessey.

[23]        
I am satisfied on a balance of probabilities considering the whole of
the evidence that Ms. Lessey was injured by the accident and that that injury
has caused an amount of pain, discomfort and suffering which entitles her to
damages.

IV.           
ISSUE

[24]        
The real issue in this case is what is the appropriate quantum of
damages?

V.             
ANalysis

[25]        
Counsel for the defendant encouraged the Court to examine the well known
case of Price v. Kostryba et al. (1982), 70 B.C.L.R. 397 (restated in Hrnic
v. Fast, 2004 BCSC 1411):

Perhaps no injury has been the
subject of so much judicial consideration as the whiplash. Human experience
tells us that these injuries normally resolve themselves within six months to a
year or so. Yet every physician knows some patients whose complaint continues
for years, and some apparently never recover. For this reason, it is necessary
for a court to exercise caution and to examine all the evidence carefully so as
to arrive at fair and reasonable compensation.

[26]        
Defence counsel also cites Hall v. Day, 2006 BCSC 874 and Maslen
v. Rubenstein, (1993), 83 B.C.L.R. (2d) 131, which I have reviewed.

[27]        
There is in this case a pattern beginning at the time of the accident of
stiffness and pain in Ms. Lessey’s low back which initially included some
dizziness or nausea. The dizziness or nausea resolved within days of the accident.
In this case, Ms. Lessey consistently reported stiffness and pain with some
improvement initially but regretfully experienced a low level of pain and
stiffness persisting over a period of years becoming intermittent in 2011.
Clearly Ms. Lessey is not a malingerer. She has worked with exercise and vigorous
activity encouraged by her physiotherapist and two doctors but has been unable
to get complete resolution of the back pain caused by the accident. I am
satisfied that from the evidence which I accept in this case, there is a
convincing body of evidence which overcomes the improbability that pain will
continue in the absence of objective findings well beyond a “normal recovery
period.” In this case, Ms. Lessey suffered an injury which despite the best
efforts of all involved did not heal within a “normal recovery period”.

[28]        
Ms. Lessey described her experiences with pain and stiffness following
the accident in clear and simple language. The evidence was consistent she had
no back pain symptoms prior to the accident. I find she did not embellish nor
exaggerate her description of the lower back pain which she experienced. It
would have been difficult for her as a participant in team sports to ask
coaches to remove her from games and no doubt an embarrassing experience with
other players. That said, she was a model of mitigation; she took no time off
work and substantially continued an active exercise program including yoga
activities and strenuous effort to reduce the pain which she experienced in her
lower back and to rehabilitate herself. I find her to be a credible reporter
and historian of her injury.

[29]        
I found her to be a credible witness whose evidence was significantly tested
in a persistent cross-examination but was no less credible in the result. Her
evidence of back pain was also supported by evidence of her mother, who
participated in exercise programs with Ms. Lessey. This was a case where the
quantity of medical-legal reporting was less than some other cases but, as I
noted above, I found Dr. McKenzie to be a particularly helpful reporter of the
circumstances and diagnosis in this case. In this circumstance, his single well-considered
report was helpful.

VI.           
QUANTUM OF DAMAGES

[30]        
Counsel have conflicting views on the quantum of non-pecuniary damages.
The plaintiff seeks non-pecuniary damages in the range between $15,000 and
$25,000. Defence counsel submits the appropriate range for non-pecuniary loss
is between $3,500 and $7,000. A number of the cases cited by defence counsel
involve plaintiffs who were found not to be credible. Such as Jezdic v. Danielisz,
2008 BCSC 1863 and Wells v. Basanta et al., 2005 BCSC 132. That is not
the case before this Court. As noted above, I found the plaintiff to be a
credible witness. As a result, cases where the plaintiff’s evidence is
challenged are distinguishable from the case at bar.

[31]        
Defence counsel also cited Stapley v. Hejslet, 2006 BCCA 34 which
provides at para. 46 a non-exhaustive list of factors to be considered when
assessing an award of non-pecuniary damages. Applying those factors to the case
at bar:

(a)      The plaintiff
was thirteen years old at the time of the accident and was 20 years old at the
time of trial;

(b)      The
injury caused by the accident was a soft tissue injury, a lower back strain,
which persistently caused pain and discomfort ;

(c)      The
pain was never reported to be severe but was persistent, in varying degrees
with some improvement from the date of the accident until it became
intermittent in 2011. It is not completely resolved;

(d)      Ms.
Lessey was, from her first medical appointment and first physiotherapy
treatment, involved in an active rehabilitative program which was centred
around vigorous exercise, stretching and Yoga therapies. She experienced
periods of disability where back pain prevented her from participating in active
team sports including soccer and rugby;

(e)      Ms.
Lessey is a positive individual whose emotional life was not significantly
affected by her injury;

(f)       Except
for considerable time expended by Ms. Lessey in therapeutic exercise, and the
periods of disability noted in para. (d) above, the overall impairment caused
by this accident has been limited but longstanding; and,

(g)      I also
find that Ms. Lessey was not a person who complained much about circumstances,
particularly nagging back pain, which she could not quickly change. . In this
regard, she was stoic in her approach to this injury and her life. (Giang v.
Clayton, Liang and Zheng, 2005 BCCA 54)

[32]        
I am satisfied on a balance of probabilities that this is one of those
cases where there has been ongoing pain for a period of years although that
pain has been at a level which was tolerable to a good deal of activity by Ms.
Lessey. In the circumstances, and having reviewed all of the cases cited by
counsel, I assess the non-pecuniary damages in the amount of $16,500. The
plaintiff will also be entitled to special damages as claimed in the amount of
$575.00 for Yoga participation which was recommended as part of the active
rehabilitation program.

[33]        
The costs will follow the event with liberty to apply. Court order
interest will be fixed at Registrar’s rates.

“K. Ball, J.”