IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140602

Docket: SM91039

Registry:
Kelowna

Between:

Nichole Huntley

Plaintiff

And

Vanessa Daley and
Michael Anthony Daley

Defendants

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
This is an assessment of the damages arising out
of a motor vehicle accident. The accident happened four years ago. The
plaintiff sustained soft tissue injuries in the accident. The plaintiff
maintains that in addition to pain in her upper back, pain in her neck, and
headaches – complaints that are now essentially resolved – she has also
suffered a permanent loss of function owing to chronic pain that manifests in
her lower back.

[2]            
The defence maintains that the plaintiff’s low
back symptoms developed so long after the collision that they cannot be
attributed to it. The defence is content to pay moderate damages to the
plaintiff for the relatively minor symptoms it says can be attributed to the
collision.

[3]            
The main issue in this case is, therefore,
causation and the central question is this: did the accident cause the
plaintiff’s low back pain?

The Facts

[4]            
The plaintiff is now 32 years old. She was 28
when the accident happened. Then, as now, she was involved in a romantic
relationship with her partner Mark West. She and her son by an earlier
relationship lived with Mr. West in his townhouse in West Kelowna. On
April 9, 2010, the plaintiff was driving her son, then aged 10, to school and
herself to work. En route, her vehicle was hit from the rear by the defendant’s
vehicle. The severity of the collision was not described in the evidence. The
defendants have admitted liability for the collision.

[5]            
At the time of the collision, the plaintiff was
employed as an education assistant at a private catholic school in Kelowna. She
worked five hours per day and earned $17.92 per hour. Her job required her to
provide one-to-one assistance to elementary grade students at the school. The
students in her care had learning disabilities or physical ailments that
required special support and attention.

[6]            
The plaintiff did not carry on to work after the
accident. Instead, she went home and had a nap. Approximately three hours after
the collision, the plaintiff attended at a walk-in clinic. She told the
physician who saw her there that her neck was sore and that she had a headache.

[7]            
Ten days later, on April 19, 2010, the plaintiff
saw her family physician Dr. Hickman. The plaintiff acknowledged that she
knew that for Dr. Hickman to help her, she had to give him an accurate and
complete history of her symptoms and complains. The plaintiff testified that
when she visited Dr. Hickman, she did, in fact, tell him all that was
bothering her. The plaintiff testified that she complained to Dr. Hickman
that since the accident, she had been suffering from headaches, a sore neck,
and soreness in her lower back. When she was referred to Dr. Hickman’s
clinical records, the plaintiff changed her testimony and acknowledged that she
told Dr. Hickman that only her neck was sore and that she had headaches.
She made no complaint to him of low back pain. In his testimony at trial, Dr. Hickman
confirmed that he recorded the plaintiff’s complaints and that those complaints
were of headaches and upper back pain. He testified that had he heard the
plaintiff complain of low back pain, he would have made a note of it. No such
note exists. In his June 2011 medical report, Dr. Hickman noted only that
the plaintiff complained to him of headaches and pain in her neck and upper
back.

[8]            
On April 20, 2010, the plaintiff gave a
statement to her ICBC insurance adjuster. The plaintiff testified that what she
told the adjuster and what was recorded in her statement was true. In that
statement, the plaintiff said that she was not stiff or sore during the week
after the accident but that she did suffer from headaches from time to time.

[9]            
The plaintiff attended for massage on April 27,
2010. That was 18 days after the accident. Her complaints then were of
headaches and soreness in her neck. She made no complaint of low back pain.

[10]        
The plaintiff saw Dr. Hickman again on May
10, 2010. Once again, the plaintiff told her doctor of her headaches and
soreness in her neck. She voiced no complaints of pain in her lower back.

[11]        
The first medical record of a reference by the
plaintiff to her lower back pain is found in the clinical records made by Dr. Jones.
She saw Dr. Jones on May 26, 2010. At that time, the plaintiff said that
her low back pain was very mild and that it came and went.

[12]        
From the end of May to the present, the
plaintiff’s main complaints have centered on her lower back. She testified, and
the medical records and reports tend to confirm, that by a year after the
accident, her headaches and neck pain had subsided and were no longer an issue
for her. On the other hand, the plaintiff’s complaints of low back pain have
increased. She maintains that low back pain limits her ability to engage in
physical activity, most particularly bending or lifting, and limits her
tolerance for sitting, standing, driving, looking after the child she gave
birth to in December 2012, or engaging in the recreational sports she enjoyed
before the accident.

Medical Evidence

[13]        
As noted, Dr. Hickman was the plaintiff’s
treating physician. He was her family doctor from well before the accident
through to May 2012. He last heard a complaint from her about the accident in
January 2011, although he did see her a number of times after that month. Dr. Hickman’s
medical report is clear: in his opinion, as a result of the accident, the
plaintiff suffered an injury to the muscles of her upper neck. That injury
caused pain in her neck and upper back and also caused her headaches. Dr. Hickman
did not opine that the plaintiff sustained an injury to her lower back.

[14]        
The plaintiff’s current family physician is Dr. Joshua.
He began caring for the plaintiff in May 2011. The plaintiff told Dr. Joshua
that her lower back had been bothering her since the accident. Dr. Joshua
testified that he simply accepted the plaintiff’s history as she told it to
him. He did not critically examine the medical records relating to the
plaintiff’s presentation after the accident. In his medical-legal report, Dr. Joshua
wrote that he attributed the plaintiff’s low back pain to the accident.

[15]        
Under cross-examination, Dr. Joshua
acknowledged that he did not know that the plaintiff’s first complaint of low
back pain surfaced six or seven weeks after the accident. He further
acknowledged that in the case of soft tissue injury caused by trauma, symptoms
of pain in the affected area typically arise in the first 24 to 48 hours after
the event and that those symptoms are typically at their most severe during the
first few weeks after the incident. He testified that it would be unlikely that
symptoms that first appear several weeks after an accident would be related to
the accident. Dr. Joshua also acknowledged that some patients have
complaints of low back pain which cannot be traced to a particular event or
trauma.

[16]        
Dr. Joshua did not, in his report or in his
evidence on direct or cross‑examination, describe any characteristic of
the plaintiff that could distinguish her from the usual or normal cohort of
persons who suffer soft tissue injury in a car accident. Put another way, Dr. Joshua’s
evidence did not provide an explanation of how the plaintiff’s low back pain,
if it did surface six or seven weeks after the accident, could be related to
the accident.

[17]        
The plaintiff’s lawyer sent the plaintiff to the
physiatrist, Dr. Kleinman. Dr. Kleinman saw the plaintiff once in
February 2011. As she did when she saw Dr. Joshua, the plaintiff told Dr. Kleinman
that her low back had been symptomatic since the accident. She did not tell him
that her complaints began six or seven weeks after the accident. Like Dr. Joshua,
Dr. Kleinman accepted the plaintiff’s history as accurate. In the result,
in his medical-legal report, Dr. Kleinman attributed the plaintiff’s low
back pain to the accident. Under cross-examination, Dr. Kleinman agreed
with defence counsel’s suggestion that sometimes people get low back pain
without any identifiable cause or trigger. He agreed that traumatic soft tissue
injuries typically manifest in the first day or two after the trauma and that
they are typically at their most severe during the first few weeks. He agreed
that it would be highly unusual for traumatically caused low back pain to not
be present during the first six weeks after an accident. Dr. Kleinman speculated
that the plaintiff’s low back pain might be secondary to altered mechanics in
her neck, but he agreed that there is no suggestion of that in his report.

[18]        
Like Dr. Joshua, Dr. Kleinman’s
evidence did not provide an explanation of how or why the plaintiff might be an
exception to the usual or typical course of symptom onset following a car
accident.

Discussion

[19]        
This case centers on causation: if the low back
pain is attributable to the accident, one result will pertain; if it is not,
the case will end with quite a different result.

[20]        
If there is a conflict in the evidence here, it
can be found in the differences between the plaintiff’s testimony at trial that
her low back bothered her right after the accident, her testimony under
cross-examination that she told the truth to Dr. Hickman and to ICBC in
the first few weeks after the accident ‑ testimony that tends to show
that there was no such pain ‑ and the stories that she told Drs. Joshua
and Kleinman about early onset of her low back pain. Those conflicts require me
to assess the plaintiff’s credibility and reliability as a witness.

Credibility/Reliability

[21]        
The plaintiff’s complaints of low back pain do
not stem from any objectively identifiable pathology. Her case is built upon
subjective complaints and those complaints cannot be attributed to structural
anomalies in the plaintiff’s body. It follows that the success of the
plaintiff’s claim will be measured in large part by her credibility and
reliability as a historian.

[22]        
Unfortunately, the plaintiff’s testimony was
marred by several significant inconsistencies. Examples of those
inconsistencies are:

·      
The plaintiff testified that prior to the
accident she had no difficulty working her contracted five-hour shifts plus
another hour to an hour and a half of extra duty every day. The extra duties
comprised supervising the lunch room and playground and also driving the
school’s bus to various events. Under cross‑examination, the plaintiff
admitted that prior to the accident, she did not work 6.5 hours per day. She
admitted that before the accident, she worked only her usual five hours per day
and that it was not until after the accident happened that she increased her
hours to 6.5.

·      
The plaintiff testified that before the accident,
she went snowboarding regularly. When her discovery evidence was put to her in
cross‑examination, the plaintiff admitted that there she testified that
she gave up snowboarding in 2000 when her first son was born and that she
returned to the sport in 2011. The plaintiff testified that when she gave those
answers she was telling the truth.

·      
The plaintiff testified that she complained to Dr. Hickman
that since the accident, she had been suffering from headaches, a sore neck,
and soreness in her lower back. Later, in cross-examination, the plaintiff
testified that she told Dr. Hickman only that her neck was sore and that she
had headaches.

·      
The plaintiff testified that the statement that
she gave to ICBC on April 20, 2010, was true and accurate. In that statement,
she said that she did not have any stiffness or soreness during the week after
the accident and that her only problem was her headaches. This is at odds with
the plaintiff’s at-trial testimony that she was stiff and sore as soon as a few
hours after the accident.

·      
In her direct evidence, the plaintiff testified
that after the accident, she tried playing volleyball for a month or so but had
to give it up. She testified that she last played volleyball three or four
years ago. When the plaintiff was confronted with what she said to Dr. Kleinman
and Dr. Jones about volleyball, she admitted that in fact she continued to
play volleyball well into 2011 and that what she had said about having to stop
playing earlier was “a mistake”.

[23]        
It may be wrong to conclude that when she made
these inconsistent statements, the plaintiff was trying to mislead the court. I
will give the plaintiff the benefit of the doubt on that score and say only
that her memory of events is flawed and that at trial, she misremembered
certain things. I find that the plaintiff cannot fairly be said to be a
dishonest witness, but I am driven to conclude that she is not a reliable one.

[24]        
For that reason, I prefer to accept as accurate
the plaintiff’s earlier versions of events where those conflict with the
version she gave at trial. I find that the plaintiff’s lower back did not
bother her until at least four weeks and more likely six weeks after the
accident. I find that after the accident, the plaintiff increased her hours of
work from 5 to 6.5 hours per day and that she was able to work those increased
hours without difficulty. I find that the plaintiff did not snowboard regularly
before the accident and that after the accident she did not wholly quit playing
recreational volleyball.

Causation

[25]        
I find that the plaintiff’s low back complaints
began four to six weeks after the accident. The discontinuity between the
accident and the onset of the low back complaints argues very strongly against
their being causally connected to the accident. I accept the medical opinions
expressed by Drs. Kleinman, Joshua, and Hickman that in the vast majority of
cases soft tissue injuries are characterized by the presence of pain and
stiffness in the affected area within 24 to 48 hours of the trauma. I accept
their opinions that the longer the delay between trauma and symptoms, the less
likely it is that the latter was caused by the former. I accept the physicians’
opinions that low back complaints can occur in individuals even in the absence
of an identifiable traumatic event. I also accept their opinions that it would
be very unusual for a motor vehicle accident to cause low back symptoms that
are first noticed four to six weeks later.

[26]        
I find that there was nothing unusual about the
plaintiff’s case that would account for the gap between the accident and her
complaints of low back pain. Evidence that the plaintiff’s case is an exception
to the usual would have been useful to her, but none was adduced at trial. It
follows that I cannot find on the balance of probabilities that the plaintiff’s
low back pain is, in fact, causally related to the motor vehicle accident.

[27]        
I have no doubt that the accident caused the
plaintiff a mild soft tissue injury to her neck and upper back. She suffered
from pain and stiffness in her neck for several months after the accident. She
also suffered from headaches. These complaints were largely resolved by six
months after the accident, and by the time a year had passed, they had ceased to
interfere with her function. The plaintiff missed two days of work after the
accident but she suffered no income loss as a result.

[28]        
The plaintiff undertook massage, physiotherapy,
and chiropractic treatments for her neck pain and headaches. After the first
anniversary of the accident, her accident-related symptoms were resolved and
she did not require any further treatments. The treatments and therapies that
the plaintiff undertook after April 2011 were for her lower back. The cost of
those treatments is not recoverable in this proceeding.

[29]        
All of the future care recommendations that the
occupational therapist Ms. Peters made were aimed at ameliorating the
impact of the plaintiff’s low back complaints. Those complaints are not related
to the accident. No award can be made for those items.

Damages

Non-Pecuniary Loss

[30]        
The plaintiff sustained a mild to moderate soft
tissue injury to her neck. She suffered from headaches associated with that
injury. Her symptoms were no longer functionally limiting by the first anniversary
of the accident. The plaintiff missed two days of work after the accident. An
award of $20,000 would, in my opinion, adequately compensate the plaintiff for
her loss of enjoyment of life occasioned by the accident.

Special Damages

[31]        
I would award $1,200 to compensate the plaintiff
for user fees and mileage for treatments she received during the first year
after the accident.

Reduction of Earning Capacity

[32]        
The plaintiff has not demonstrated that the
accident reduced her earning capacity. No award can be made under this head of
loss.

Cost of Future Care

[33]        
The plaintiff has not demonstrated that because
of the accident, she requires any medically justified future care modalities.
No award can be made under this head of loss.

Conclusion

[34]        
The plaintiff is entitled to an award for
general damages of $20,000 and an award for special damages of $1,200.

Costs

[35]        
The parties will be at liberty to make an
application for costs. Absent an application brought within 30 days of the
release of these reasons, the plaintiff shall have her costs on Scale B.

“P.J.
Rogers, J.”