IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Best v. Thomas, |
| 2014 BCSC 1033 |
Date: 20140610
Docket: M101629
Registry:
Vancouver
Between:
Shawn David Best
Plaintiff
And
April Teresa
Thomas,
Joan Mary Thomas
Defendants
And
Insurance
Corporation of British Columbia
Third
Party
Before:
The Honourable Madam Justice Duncan
Reasons for Judgment
Counsel for the Plaintiff: | A. Vecchio, Q.C. J.U. Buckley N.M. Kelly |
Counsel for the Third Party: | K. Armstrong S. Stewart |
Place and Dates of Trial: | Vancouver, B.C. February 17-21, 2014 February 24-28, 2014 March 3-7, 2014 |
Place and Date of Judgment: | Vancouver, B.C. June 10, 2014 |
6. Neurological
consult with Dr. Kennely Ho
7. The
plaintiffs progress after Dr. Hos involvement
8. David
Moffitt – physiotherapist
9. Occupational
therapists – Scott Myles and Abdollah Rezazedeh
10. Assessments
by experts for court
11. Conclusion
on the medical cause of the plaintiffs condition
12. Barbara
Baptiste – the plaintiffs cost of future care expert
E. Conclusion
on the plaintiffs current condition, abilities and prognosis for the future
1. Credibility
and Reliability of Evidence
C. Loss
of Future Earning Capacity
F. Past
in trust claim for special damages
I.
Introduction
[1]
On September 13, 2008, in Port Alberni, B.C. the plaintiff, Shawn Best,
was rear-ended by a van while he was stopped on his motorcycle, waiting for the
vehicle ahead of him to turn left. April Thomas was the driver of the van. She
did not have a valid drivers licence. Joan Thomas, April Thomass grandmother,
owned the van. The Insurance Corporation of British Columbia (ICBC) is named
as a third party.
[2]
Mr. Best was taken from the accident scene in an ambulance and released
from hospital several hours later. Witnesses to the accident or its aftermath,
the Johnson family, provided him a place to stay and took him to the bus depot
the next day so he could return home to Maple Ridge. Mr. Best was stiff
and sore immediately after the accident and those symptoms worsened over the
ensuing days and weeks. He developed tremors in his limbs. Mr. Bests
family doctor sent him to Royal Columbia Hospital on October 9, 2008. The
following day, Mr. Best had surgery on his C5-6 disc.
[3]
While the surgery appeared successful in that it removed the disc
fragments which had been pressing on Mr. Bests spinal cord, he did not
gain relief from it and continues to suffer from a variety of ailments. He
maintains he is permanently disabled and competitively unemployable due to a
combination of physical and psychiatric conditions caused by the accident. He claims
for special damages, including an in trust claim respecting family members who
cared for him, past wage loss, loss of earning capacity, non-pecuniary damages
at the upper end of the range and damages for future care.
[4]
The defendants were not represented by counsel; however, April Thomas
testified and Joan Thomass examination for discovery evidence was read in. There
is no concession of liability by ICBC, nor any concession with respect to
damages. ICBCs position is that the plaintiffs condition is largely or
entirely the result of conversion disorder, a psychiatric condition.
II.
The evidence
A.
Prior to the Accident
[5]
Mr. Best is divorced and has no children. He left high school in grade
11 but achieved his GED about two or three years later. He has two younger
brothers: Jason, who is two and a half years younger, and Jonathan, who is five
years younger than Jason.
[6]
Mr. Best took programs at BCIT and Ridge Meadows College to attain
certificates relevant to the work he wished to pursue with the District of
Maple Ridge. He obtained a job as a building service worker in facilities and
maintenance with the District of Maple Ridge and worked in that capacity for
six or seven years until an opportunity with the parks department came up. He
started as a labourer in the parks department about three years prior to the
accident. The parks job had the advantage of Monday to Friday day shifts rather
than the seven day shift work with building maintenance.
[7]
The parks job involved a variety of activities ranging from cutting down
trees, to operating machinery to working on the ball fields, and doing maintenance
and sod repair, and edging for the sports fields. Mr. Best trained to
operate various large lawn mowers, one of which had a 17 wing span. He had to
load the mower onto a trailer and transport it from park to park so it was a
physical job. He had no difficulties with the physical aspect of his job.
[8]
By all accounts, Mr. Best loved his job. He enjoyed dealing with
the public and he liked the work schedule, work environment and benefits
package associated with the position. Two of his former supervisors, Donald
Cram and David Boag, testified that the plaintiff was a good worker who was
very positive, and got along with the public, his supervisors and his
co-workers.
[9]
Before the accident the plaintiff was a fit and active young man. In his
own words, he enjoyed pretty much anything that involved going outside, from
hiking and biking to snowboarding and camping. He played ball hockey with
friends. He went to the gym four or five days/week. The activity helped him
with the physical aspects of his job. In the past he played ice hockey. He had
also developed an interest in archery.
[10]
The plaintiffs brother Jonathan and his friends Masao Wakita and Chris
Schwarz all testified about the plaintiffs enjoyment of a physical lifestyle
prior to the accident.
[11]
Regarding his mental or emotional health prior to the accident, Mr. Best
said he saw a doctor once or twice after he separated from his wife in 2007,
but did not feel under constant stress. His family and friends characterized him
as a happy and easygoing person.
B.
The Accident
1.
The plaintiffs evidence
[12]
On September 13, 2008, 13 days before his 32nd birthday, the
plaintiff was on Vancouver Island with about 1,200 other motorcycle enthusiasts
participating in a fundraiser toy run. Following the conclusion of the event, at
about 2:00 p.m., the plaintiff was riding eastbound on Johnston Street in Port
Alberni en route to the Nanaimo ferry terminal. At the intersection of Johnston
Street and Leslie Avenue he stopped behind a vehicle waiting to turn left. In
one of his mirrors he noticed a vehicle coming towards him. The vehicle, a van,
hit the plaintiff from behind.
[13]
The plaintiff was propelled off his motorcycle. He felt his knees strike
the handlebars as he went over them. His motorcycle was pinned underneath the
van. He got up but felt shocked and stiff. The man who had been turning left,
Ed Johnson Jr., stopped to assist the plaintiff, as did others.
[14]
The plaintiff was taken to hospital by ambulance and examined by a
doctor. He felt stiff and told the doctor his neck, knees, back and legs were sore.
He was given an injection and a prescription at the hospital. Ed Johnson Sr.
took him to the Johnson family home near the accident scene and he stayed there
overnight.
2.
Ed Johnson Jr.
[15]
Ed Johnson Jr. was driving the vehicle ahead of the plaintiff and witnessed
the lead-up to the accident. He was familiar with the area because his parents
house is on the corner of Johnston Road and Leslie Avenue. That intersection is
not controlled by a traffic light or a stop sign and is slightly uphill from a
dip in the train tracks. The weather was sunny and dry.
[16]
As he was waiting to turn left onto Leslie Avenue, Mr. Johnson Jr. looked
in his rearview mirror and saw a van travelling pretty fast, about 50 to 60
kilometres per hour. He knew it was going to hit the motorcycle behind him. He
did not hear the sounds of tires squealing or braking. The plaintiff was thrown
off the motorcycle but Mr. Johnson Jr. did not actually see him land on
the ground.
[17]
Mr. Johnson Jr. completed his turn onto Leslie Avenue and stopped
his vehicle. He had the plaintiff sit in his vehicle because it was hot out and
he had air conditioning on. The plaintiffs motorcycle ended up at his dads
house on Leslie Avenue. When the plaintiff came back from the hospital later
that day he seemed pretty mixed up and confused.
3.
Ed Johnson Sr.
[18]
Ed Johnson Sr. was driving home in his truck, approaching the turnoff
for his house when he noticed the aftermath of a motor vehicle accident. He saw
his sons vehicle and became concerned. As he got closer, he could see the
accident involved a motorcycle, which was underneath a van. Mr. Johnson
Sr. has a background in first aid. He spoke with the plaintiff, who seemed
shocked and disoriented by what had happened and became stiffer and in more
pain the longer they spoke.
[19]
Mr. Johnson Sr. picked the plaintiff up later at the hospital
because he knew the plaintiff was from out of town and his mode of
transportation was ruined. The plaintiff was in a lot of pain and repeated
himself to the point where Mr. Johnson Sr. became concerned about a
concussion. The plaintiff tried to get on his motorcycle to go home that night
but the Johnson family persuaded him to stay.
[20]
Mr. Johnson Sr. said the plaintiff had slurred his words very
slightly at the accident scene but that seemed to get worse over the course of
the evening and he was more difficult to understand. The next morning the
plaintiff was in a lot of pain and making less sense when he spoke. Mr. Johnson
Sr. drove him to the bus depot so he could get home. The motorcycle was taken
away by a tow truck.
4.
Tammy Brock
[21]
Tammy Brock, Mr. Johnson Sr.s spouse, heard a commotion on the
street in front of her home. She went outside and saw a motorcycle and a van on
the street. Ms. Brock met the plaintiff later in the day after he was
released from the hospital. The plaintiff wanted to ride his motorcycle back to
Vancouver but Ms. Brock said he was in no condition to ride. He had a sore
knee, he was limping, and he appeared shaken up and disoriented with slow
speech. Ms. Brock and her family persuaded him to stay overnight. As the
evening went on his condition deteriorated. He slurred his words and was not
able to form proper sentences. He struggled to get off the couch and appeared
to be in pain. Ms. Brock said as he walked down the hall he seemed to shift
to one side and could not walk in a straight line.
[22]
The next morning Ms. Brock was still concerned about the plaintiff
because he was not able to answer questions properly. He slurred his words,
could not form sentences properly and tended to drift off and repeat himself. She
was worried about him getting back to Vancouver without help.
5.
April Thomas
[23]
On September 13, 2008, April Thomas was in Port Alberni visiting her
family with her three year old twin boys. The boys left the house to see their
grandmother. Ms. Thomas panicked when she realized her children were gone.
She asked for and received permission from her own grandmother, Joan Thomas, to
borrow her van to pick up the boys. While returning to Joan Thomass house with
the boys, Ms. Thomas saw a car ahead of her going up the hill on Johnston.
She did not notice it had switched lanes and did not see the motorcycle stopped
ahead of her until it was too late. She hit the motorcycle and it came up onto
the hood of the van and stuck there.
[24]
Initially Ms. Thomas testified she thought the rider was still on
the bike after the collision, but upon having her memory refreshed from a
statement she gave to an ICBC adjuster on October 2, 2008, agreed she said the
rider fell off the motorbike.
[25]
The police ticketed Ms. Thomas for following too closely, failing
to have proper child restraints in the vehicle and not having a drivers
licence. She did not dispute the ticket. She agreed she told a second ICBC
adjuster after the accident she had been driving about 50 kilometres per hour
and that was her best estimate at a time when her recollection was much better.
6.
Joan Thomas
[26]
Joan Thomas did not testify but the plaintiff read in excerpts from her
examination for discovery:
Q:
Ms. Thomas, you understand that you are here
because you are a defendant in a lawsuit involving a motorcycle collision that
occurred on September the 13th, 2008?
A: Yes.
Q: That occurred in Port Alberni?
A: Yes.
Q: That involved a mini van that you owned and another
vehicle?
A: Yes
Q: So, Ms. Thomas, at the time of the collision,
you owned a 2001 brown Chevrolet Venture mini van?
A: Yes.
Q: Bearing licence plate 187 HLA?
A: I dont remember the licence plate.
Q: I thought I would try.
Ms. Thomas, I have here today a statement
that you gave
. I just ask that you take a couple of minutes to review it.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RESUMED)
Q: Do you recall providing this statement on February
13th, 2009?
A: Pardon?
Q: Do you recall giving this statement in 2009?
A: Yes.
Q: That is your signature at the bottom right-hand on
each of the three pages?
A: Yes.
Q: And this statement was true?
A: Yes.
Q: You will see on page 2 here, it says, I recall
April came in and asked me to use the van and I said, yes, although I knew she
didnt have a drivers licence; that statement was true?
A: Yes.
Q: You will see here it says she had my consent to
drive the van when the accident happened, and that was true?
A: Whats that?
Q: She had my consent to drive the van when the
accident happened?
A: Yes, she did.
C.
After the Accident
1.
The plaintiffs evidence
[27]
Mr. Best returned home to Maple Ridge the day after the accident. His
neck, lower legs, and back were sore. He saw his family doctor, Dr. Milewski,
three days after the accident. The doctor sent him for an x-ray on his neck and
for physiotherapy. The soreness and stiffness in his legs and back continued to
worsen and it became hard for him to walk. During one session with the
physiotherapist, while he was sitting on the recumbent cycle, his legs started
to shake. He could not control the shaking and it moved up his left side to his
arm. He thought the shaking started in his left leg but he was in pain and
heavily medicated at the time so was not certain. He described the shaking as
an electrical current shooting through the bones and muscles of his legs.
[28]
When the shaking in his legs became intense the plaintiff called his
sister-in-law, Aliesha Best, and asked her to take him to the doctor. Dr. Milewski
then referred him to Royal Columbian Hospital. The plaintiff recalled lying on
a bed with his body shaking violently every 10 minutes or so. He underwent an
MRI and doctors told him he would undergo spinal surgery to remove the discs
that were compressing his spinal cord.
[29]
The plaintiff assumed the surgery would alleviate the spasticity, or
shaking. It did not. The spasticity remains, albeit it in an improved state, and
the pain has not gone away. The electrical feeling and the aches in his muscles
continue, although medication and physiotherapy helps. If he puts pressure on a
particular area of his foot it will activate the spasticity in his legs and
they will kick out from underneath him. As a result he walks with most of his
weight on his heels. This in turn puts pressure on his lower back and creates a
constant pain whenever he walks around or moves.
[30]
The plaintiff said the first winter after the accident was a bad one
with a lot of ice and snow and his body was extremely sore. The pain was so
excruciating that he was trying to figure out how to cut off his legs and
cauterize them in the fireplace to make it go away.
[31]
The plaintiff takes a wide variety of medications to relax his muscles
and assist with spasticity, nerve pain, anxiety and general pain. He also uses cannabis
for relaxation. The plaintiff finds warm and dry temperatures are much better for
his pain. Sitting in a hot tub gives him short term relief. His trips to Venezuela,
Mexico and Arizona were all helpful due to their warm climates.
[32]
Both of the plaintiffs legs still shake, the left more than the right. His
balance is poor. He cannot walk in tandem gait (one foot in front of the other).
He uses a cane and will not walk farther than 10 feet without it. He adopts a
wide spread gait for stability. The plaintiff can walk up and down slopes
depending on the steepness but cannot walk much farther than 100 metres on a
flat stretch without becoming fatigued. He can stand for five or ten minutes
before he starts hurting. If he shifts his balance and bends his knees too far
they will buckle.
[33]
The plaintiff showers once every two or three days and shaves once a
week or so because those tasks are too much work to do on a daily basis. He dresses
himself but has to lean against the wall or he will fall over. He is able to
get up when he falls. He cannot sweep the floor, vacuum or clean the bathroom
as he is worried about falling. He can straighten the sheets on his bed but he
cannot change them. On a good day he can load laundry and put it in the dryer. Laundry
is easier now in his rental home because the machine takes powdered detergent
rather than liquid which he found difficult to pour. He does not use his scooter
since he finds it too onerous to load into his vehicle.
[34]
The plaintiffs left arm shakes periodically and when that happens he will
drop whatever he is carrying. He is left handed. Reaching for something
provokes the shaking and he cannot reach overhead to put things up on a shelf. He
has difficulty with fine motor skills. He can write but his hand cramps up
after a short time. He can carry light groceries. He cannot prepare his own
meals. The plaintiffs neck is always stiff, particularly if he tries to read
or write. He gets headaches from trying to concentrate or having long
conversations with people.
[35]
Fatigue is a problem for the plaintiff. He describes it as overwhelming,
like having a vacuum hovering over him and sucking the energy out of him. He
does not sleep well due to pain. He also hears noises as he is falling asleep
and he does not wake up revitalized. He naps an hour or two per day on top of
eight to ten hours of sleep at night.
[36]
The plaintiff sits down to urinate because he finds it easier to get a
flow going. He does not like being far from a bathroom as he cannot hold the
pressure and will either urinate or defecate. He has accidentally urinated
about a dozen times and defecated twice. He has had problems with constipation
and has learned to give himself an enema. He was hospitalized for constipation
and retention of urine.
[37]
Since the accident the plaintiff has had issues with sexual functioning.
He does not get any sensation during intercourse and will lose his erection. He
is not currently in a relationship and has dated very infrequently since the
accident. He had a vasectomy because he felt he would not be able to
participate in activities with children or chase after one.
[38]
The plaintiff has suffered from pressure sores on and off for the past
two years. He bumped one on a table when he fell and opened it up and had to go
for intravenous therapy in the hospital. He takes antibiotics to treat them.
[39]
As for leisure activities, the plaintiff has tried archery but could not
keep the bow steady. He also tried fishing and crabbing but did not enjoy those
activities due to his limitations. He goes to the community centre and pool in
Mission so he does not see people he knows at the facility in Maple Ridge. He
has gained 40 or 50 pounds since the accident.
[40]
The plaintiff saw a psychiatrist, Dr. Bright, in early 2009 because
he did not sleep for six days. He had ringing in his ears and would wake up
with a flash of seeing the van coming towards him. He still gets the ringing
and roaring sounds but not as many flashbacks. He saw another psychiatrist, Dr. Gopinath,
because Dr. Bright was his friends mother and she felt conflicted about
treating him. He has not had psychiatric or psychological assistance for about
two years prior to trial.
[41]
The plaintiff says he is frustrated as a result of the accident. He does
not enjoy life. The doctors told him his condition was all in his head and he
disagrees with that. He feels he has a spinal cord injury and there must be
some type of nerve damage to cause the amount of pain he feels.
[42]
Alcohol consumption was an issue for the plaintiff about a year after
the accident. He drank heavily for six months but testified he has stopped;
however, when confronted with his examination for discovery evidence he
admitted that he has an occasional drink.
[43]
On cross-examination the plaintiff agreed he was frustrated with changes
in personnel in his house, in particular with the active rehabilitation
therapists. His frustration led him to discontinue some of the assistance and
to hire his own cleaners so he had some control over who came into his home.
[44]
I am mindful that the plaintiff experiences memory troubles. This was
manifest in the way he gave evidence and the difficulties he had following the flow
of questions. For example, his counsel asked him about incontinence but his
response was directed at sexual dysfunction. He also gave different versions of
his condition to different medical practitioners. It is important to assess his
evidence in concert with what he told other people about his symptoms and what
they observed. I will now turn to reviewing that evidence.
2.
Aliesha Best
[45]
Aliesha Best is married to the plaintiffs brother Jonathan. She saw the
plaintiff a few days after the accident. He was very stiff and sore and not
moving around much. For the first few weeks after the accident she stopped by
to see him every couple of days. By early October, the plaintiffs legs and one
of his arms started shaking. Mrs. Best was concerned and took him to the
doctor. The plaintiff could not walk to the car so she had to hold him up and
almost carry him the short distance to where she was parked.
[46]
The plaintiffs doctor sent them to Royal Columbian Hospital Emergency. Mrs. Best
spoke with medical personnel on the plaintiffs behalf as he was shaking and lacked
the strength to repeat his story. The doctors seemed to want to discharge him but
Mrs. Best pressed for further testing. As a result the plaintiff saw a
neurologist, Dr. Ho, and had neurosurgery the next day.
[47]
Following the surgery Mrs. Best accompanied the plaintiff to
doctors appointments as he was unable to go on his own and could not remember
what doctors told him about care plans. She took notes and reminded him what he
had to do after appointments. She checked on him several times a day and
monitored his medication so he stayed on the right dosages. As a teenager, Mrs. Best
had cared for her grandmother so she was accustomed to assisting and advocating
for people in medical situations.
[48]
Mrs. Best assisted the plaintiff after surgery on average for about
four hours per day until December or January, and after that about five hours
per week until he got his drivers licence back in April 2009. She took food to
him, arranged for his medication to be blister packed, tidied the house and did
laundry if necessary. She was also on call 24 hours a day if he needed her. Mrs. Best
cited an example when the plaintiff fell out of bed one night and she went over
and helped him get up. On another occasion in February 2009, Mrs. Best and
her husband checked on the plaintiff at night. He was acting oddly and not
making sense. They took him to the hospital and it turned out he was having an
adverse reaction to Cesamet, the only drug Mrs. Best had not been monitoring.
[49]
Up until the early part of 2009, Mrs. Best said the plaintiff was suffering
from shaking in the legs and arm, chronic pain, and difficulties with memory, balance
and coordination. Eventually she was overwhelmed and asked the plaintiffs
mother Brenda Spafford to come home from her holiday in Venezuela to help.
[50]
Mrs. Best said the plaintiff went from a warm, easygoing, outgoing
guy to someone who is just not as happy as he was before. He loves being an
uncle to her son but was uncomfortable holding him while he was a very young
baby. She agreed the plaintiff has a bit more mobility now than immediately
after the accident. He can drive on his own and walk with a cane, albeit not with
a normal gait. He still has tremors and issues with balance. Mrs. Best agreed
with counsel for ICBC that he does not use his scooter very much. He gets to
the pool and physiotherapy appointments on his own. He socializes with family. He
has travelled to warmer places for winter vacations with his mother. Mrs. Best
said he is unable to walk on the dike because he gets too tired. She cited fatigue
as a major issue for him.
3.
Brenda Spafford
[51]
The plaintiffs mother, Brenda Spafford, is 62 and retired. At the time
of her sons accident she was living in Penticton with her husband Fred. She learned
about the accident while on a cruise with Fred, her son Jonathan and his
then-fiancée, Aliesha. She
saw her son a few days after she returned home from the cruise. He was in a lot
of pain and had trouble walking. He complained of aching all over. She went
home to Penticton, thinking he would heal from the accident, but returned to
the Lower Mainland when he underwent surgery. Ms. Spafford visited him in
hospital and following discharge. He was heavily medicated and slept a lot of
the time. When he got up his legs shook uncontrollably as if he had Parkinsons
disease. He tended to lie around and watch a lot of television, something he
did not do before the accident.
[52]
Ms. Spafford took steps to make the plaintiffs life easier by
arranging for internet banking and picking up cheques for him at ICBC. She said
he found it difficult to have someone do things for him. While they would see
each other a couple of times a year prior to the accident, he had lived
independently from her for a long time. After the accident she was around a lot
for him which she felt compromised his independence.
[53]
Ms. Spafford spent Christmas 2008 with the plaintiff then went away
to Venezuela with her husband early in 2009. In February 2009, Aliesha asked
her to come back to care for the plaintiff. Ms. Spafford helped him with
banking, errands, grocery shopping, cleaning and vacuuming. He had home care
but any time he did something in the kitchen he would spill and leave a mess so
constant tidying was required. Ms. Spafford divided her time between
Penticton and Maple Ridge in 10-day stints.
[54]
Ms. Spafford observed that winters are very hard on her son. Damp
cold weather seems to gnaw at his bones. Ms. Spafford and her husband
took the plaintiff to Venezuela for six weeks in 2010. He would swim or go to
the gym but would nap afterwards. He was better in warmer weather but still
suffered from pain and fatigue. He also had several falls. In one instance his
leg buckled and he fell on a glass end table. The table broke and he cut his
arm. He had planned to move into his own condo on another floor but Ms. Spafford
and her husband realized he could not stay on his own as he would not be able
to bring bottled water or other necessities upstairs to his unit. As a result,
he remained with them. He had other falls while in Venezuela.
[55]
Ms. Spafford said the accident has changed the quality of who her
son is. She described his transition from an easygoing, friendly, happy, nice
guy to someone in constant pain. He seems depressed, moody and withdrawn. She
cannot remember the last time she heard him laugh. She said after he testified
in court he was in bed for two days.
[56]
While Ms. Spafford acknowledged that the plaintiff lived on his own
after the accident until Jason moved in, she said family members had keys to
his home and would check on him every day, sometimes several times per day. She
agreed the most intense family involvement was in October and November 2008. Ms. Spafford
estimates she spent about 600 hours doing things for the plaintiff between the
accident and the time his brother Jason moved in with him in about May 2010.
[57]
Ms. Spafford currently sees him on average four times per week
depending on his pain level. She currently rents the plaintiffs townhouse from
him as he lives in a more suitable place with Jason. She has no plans to live
with him in his townhouse. He wants to be independent but she worries about
what is going to happen to him in 10 or 15 years, or if Jason moves out.
[58]
Regarding his current condition, Ms. Spafford said the plaintiff
still spills coffee all over the floor when he tries to make it. He does not
cook because it exhausts him and he makes a terrible mess, so he is more likely
to get takeout meals than cook for himself. His brother Jason and his
girlfriend Maya do 90% of the cooking and laundry and he has someone come in
and clean. He can get himself in and out of bed. He has trouble with buttons
but he does dress himself. Ms. Spafford has gone shopping with him and on
occasion his leg buckles and he has to go back to the car. She does not feel he
can go on vacation on his own due to the risk of him falling.
[59]
Ms. Spafford agreed her son needs a cane and while he has a
scooter, he rarely uses it as he pushes himself to maintain some form of
normalcy. To her knowledge, he drives himself to medical appointments and to
the Mission pool.
4.
Jason Best
[60]
Jason was very close to his brother, Mr. Best, when they were young.
They engaged in a lot of physical activities together such as camping,
canoeing, hiking and snowboarding. In the years leading up to accident Jason would
see the plaintiff once every few months. Jason said his brother had no physical
impairments and was a very positive individual.
[61]
Jason picked the plaintiff up at the ferry after the accident. The
plaintiff was rigid, in pain and moving slowly. He did not see the plaintiff
for a few weeks by which time he was having problems with spasticity in his
legs, was in excruciating pain and could not walk normally. Jonathan and
Aliesha were the main caregivers at that time. Jason saw the plaintiff every
few months and noted his brother had ongoing difficulties with ambulation, pain
and frustration. He walked with a cane and used a scooter for a while because
it was too painful to walk.
[62]
Jason moved in with the plaintiff in about May 2010 because the
plaintiff was no longer receiving outside care for meal preparation and Jason felt
he should step in and do more. Once he moved in he began to see the problems his
brother had with balance and walking. The plaintiff had rails installed in the
house for assistance because his balance was terrible. Jason also noticed dexterity
problems. The plaintiff still cannot carry a cup of coffee without spilling it
or dropping the cup. His leg tremors were initially uncontrollable although the
medications have helped and he has found ways to deal with it.
[63]
At the beginning the plaintiffs attitude was this will get better but
Jason said his brother now feels hopeless and accepts the state he is in. The
plaintiff used to be very social with lots of friends but now does not go out
much. After a while people stopped asking him to go out because they assume he
will decline. He does, however, see friends on occasion. Masao Wakita and Chris
Schwarz both testified they make efforts to see him on a fairly regular basis. The
plaintiff goes to family functions but does not stay long. He has a tendency to
isolate himself in his room. He was never depressed before. Now he is
disappointed, frustrated and hopeless. Jason also said the plaintiff has
problems concentrating and remembering things since the accident.
[64]
The two brothers moved from the plaintiffs townhouse to a rental
property and then Jasons girlfriend Maya moved in. It has a large yard and Jason
thought his brother might do a little gardening but if he does it is for short
periods and he becomes fatigued.
[65]
When Jason first moved in with Mr. Best, Jason cooked meals, got the
plaintiff up and moving, cleaned, grocery shopped, ran small errands, did laundry
and made his brothers bed. The plaintiff was unable to do much of those activities
himself but there have been some small improvements. The plaintiff can get
himself in and out of bed and bathe himself with accommodations. He walks with
a cane and does not use his scooter much. He can drive his Hyundai Santa Fe and
still has his pick-up truck. He is able to run his own errands, including
banking, clothes shopping and light grocery shopping, and get himself to
appointments. He still cannot carry more than one bag of groceries.
[66]
Jason still does the majority of meal preparation. If he does not make
dinner, the plaintiff will eat fast food or have soup and has gained a
substantial amount of weight since the accident. He does not have the dexterity
to hold a knife and Jason does not think it is safe for him to cut up
ingredients for healthy meals. Jason agreed the plaintiff can organize light
meals and snacks for himself. He is able to wipe the counter but has trouble
putting dishes away and washing them.
[67]
The plaintiff is unable to take out the garbage. Loading the laundry
machine with liquid soap was a challenge to his dexterity but they currently
have a top loading machine and Mr. Best can add powder without spilling it
all over. Folding laundry presents a challenge. They have a cleaning service
once a week. Jason feels this is not enough as his brothers dexterity issues cause
a mess. He still drops dishes.
[68]
Jason does not feel his brother could live on his own without support. Jason
calculated he provides three to four hours a day of assistance for his brother
but on cross-examination, he could not say how much of that time was providing
emotional support versus doing concrete tasks. He acknowledged that moving in
with the plaintiff was convenient but it also allowed him to be there for his
brother.
[69]
Physiotherapy wipes the plaintiff out for a day with fatigue. He can
only walk about 100 metres due to fatigue. His balance is terrible. At any
given time his legs will just give out. This has not changed over time though
the plaintiff is more cautious than he used to be. Jason says his brother has a
slow staggering walk and could not climb out a window to escape a fire. He fell
through the glass in the shower due to balance issues. The glass has been replaced
by a shower curtain.
[70]
Jason recalled the plaintiff had to be hospitalized to have a catheter
put in his bladder and an enema because he had no bowel movement for several
days. The latter has occurred more than once, but he was not sure of the exact number
of times.
D.
Medical Evidence
5.
Dr. Martin Milewski
[71]
Dr. Milewski has been the plaintiffs family doctor since he was a
young boy. He described the plaintiff as a pleasant fellow but a bit of a worry
wart. The plaintiff had no significant health complaints before the accident apart
from a tendency towards anxiety which was amplified by the accident. The doctor
observed that the plaintiff has become an unhappy person.
[72]
The plaintiff saw Dr. Milewski a number of times between August
2001 and the accident. The doctor agreed he was a fairly frequent visitor,
given his age. In June 2007, he inhaled chemicals at work and had a reaction
that was compounded by his anxiety. In December 2007 he went through another
period of anxiety when he separated from his wife and needed some time off work.
By January 21, 2008, he had settled his difficulties and was ready to go back
to work. The plaintiff also complained at least once prior to the accident of
having difficulty focussing his mind.
[73]
Dr. Milewski first saw the plaintiff in relation to the accident on
September 16, 2008. He noted an impaired range of motion of all major joints as
one would expect after the mechanism of injury the plaintiff had suffered. He prescribed
Percocet for pain control and suggested physiotherapy. On September 24, the
plaintiff reported some improvement but still had significant impairment in the
cervical range of motion. He had difficulty raising his left arm more than 80
degrees,10 degrees below the bottom of the normal range. Dr. Milewski prescribed
more Percocet.
[74]
The plaintiff returned to Dr. Milewski on October 8 at the request
of his physiotherapist who had noted significant hyperreflexia, clonus and a
spontaneous tremor in both legs, along with sensory changes. Dr. Milewski
found the plaintiff to be anxious and tense and prescribed him a muscle
relaxant. He felt there was a large amount of emotional overlay since the
tremor went away with voluntary movement or deliberate suppression. The tremors
were, however, severe and bilateral and impaired the plaintiffs ability to
sleep. The plaintiff returned the next day with no improvement. Dr. Milewski
referred him to Royal Columbian Hospital for a neurological consult.
[75]
Dr. Milewski saw the plaintiff on October 17. He complained of
increased pain and was still suffering from tremors. Dr. Milewski prescribed
him morphine and other drugs to quell the tremors. On October 21, the doctor
removed the surgical staples but still noted the plaintiff had extreme
myoclonus (shaking of the limbs). He prescribed long-acting morphine, diazepam
and a trial of baclofen, another muscle relaxant.
[76]
On October 30, the myoclonus was again extreme so Dr. Milewski
referred the plaintiff back to Royal Columbian Hospital. On November 12, the
plaintiff reported that the drugs were controlling his tremors relatively well
but pain control was an issue. Dr. Milewski prescribed a muscle relaxant
for anxiety and muscle tension.
[77]
In February 2009, Dr. Milewski learned the results of a follow-up
MRI did not show any structural changes, but the plaintiff continued to
complain of pain and tremors, even when at rest. Dr. Milewski prescribed
Nabilone, a synthetic marijuana medication. The plaintiff ended up in hospital,
possibly as a result of that medication. It was around this time that the
plaintiff sought psychiatric help.
[78]
Dr. Milewski approved the plaintiff for driving in April 2009. Early
that month he seemed much improved, but on April 22 he reported generalized
discomfort and increasing pain.
[79]
The plaintiff went to Venezuela in the winter of 2009. In July 2010, Dr. Milewski
recorded that he was complaining of poor pain control and was turning to
alcohol. Dr. Milewski prescribed him Percocet. A month later the plaintiff
reported that oxycodone was the most effective painkiller so the doctor
increased his dosage of OxyContin. The plaintiff reported he was using
marijuana regularly and asked about medical marijuana use, which the doctor
declined.
[80]
In December 2010, the plaintiff complained his pain was worse and he was
more fatigued and sedated. Dr. Milewski referred him to a clinical
pharmacologist as well as a doctor at a fibromyalgia clinic, Dr. Hyams.
[81]
Dr. Milewski or his partner, Dr. Naidoo, saw the plaintiff a
number of times in 2011 and 2012 to update his medications. Over this time it
appeared that the pain control had worsened overall. Dr. Naidoo noted in
October 2012 that the plaintiff seemed somewhat over sedated and refused to
prescribe a fentanyl patch.
[82]
Dr. Milewski tested the plaintiffs condition at some, but not all,
visits. He generally found brisk reflexes on both sides and increased tone,
towards the spasticity range. He observed the plaintiff to walk on his heels in
an effort to bypass the trigger for his leg tremors.
[83]
Dr. Milewski last assessed the plaintiff prior to writing his
report for the Court on November 6, 2013. He noted:
Mr. Best was last assessed on 2013 November 06. I had
not seen him since June 2013, at that time for a non-MVA-related problem. He reported
that his condition has remained essentially the same. He was attending
physiotherapy once weekly, and felt he was getting some benefit from
acupuncture helping his numbness and circulation issues. He reported going to
the leisure center for swimming and hot tub and was trying to get on with his
life. He noted his overall condition was worse in the winter.
With respect to the chronic pain, he reported worst spots as
just below his neck, radiating downwards towards his lower back, aggravated by
walking. He reported diminished sensation in the lower extremities with
pulsations going down both legs. He reported using marijuana 5 joints per day
which he found gave him relaxation and help with sleeping. He was prescribed
fentanyl patch 100 micrograms every 3 days, as well as hydromorphone 8 mg 3
times a day as required. In addition he was apparently receiving quietiapine,
gabapentin, diazepam, and Cipralex, prescribed by Dr. Hyams.
With regards to spasticity, he described it as constantly
present; having some voluntary control but prolonged exertion very fatiguing. He
reported falling less often than before but still reported poor balance and
ambulation using cane. He had a scooter, but was using it infrequently now. He
was able to drive safely.
Depression he described as present but he was coping. He
occasionally had suicidal ideation, but no intention to carry through on it. He
was no longer seeing counselor or psychologist and felt that he had come to
terms somewhat with his condition. However he felt his overall condition
inhibited socialization, and he had no steady relationship. He described
intermittent difficulty emptying his bladder, bowels were described as okay. There
was mild sexual dysfunction, essentially a feeling of impaired sensation.
He also reported brain fog:
Difficulty concentrating, distracting easily, and generally not as sharp as
he felt before the accident. He felt able to manage his own finances and
activities of daily living.
[84]
On physical examination in November 2013, the plaintiff was able to get
out of a chair on his own power; however, he had poor balance even with the
assistance of a cane and exhibited significant spasticity in his gait. He had a
tremor while at rest, worse on his left side, but could voluntarily control it.
The plaintiff reported poor fine motor control, especially in his left hand. He
had clonus in his knees and ankles, worse on the left side. Clonus is a rapid
sustained beating response to a relaxed foot being flexed up by an outward
force, also known as dorsiflexion. His cervical spine range of motion was
diminished. He reported decreased touch sensation in his left hand and muscle
tension on both sides of his lumbar spine.
[85]
On cross-examination, Dr. Milewski agreed he had not diagnosed inflammatory
arthritis. His concern about the plaintiffs use of prescription drugs was such
that at one point he directed the plaintiff was not to be given narcotics
unless it was absolutely necessary. He agreed the plaintiff complained of worse
pain in cold weather and of falling due to his legs giving out. Dr. Milewski
acknowledged the different drugs the plaintiff was on have a variety of
negative side effects on memory, focus, coordination and balance. They can also
cause drowsiness, dizziness, trouble sleeping, difficulty urinating,
constipation, headaches, impotence or loss of libido. Other side effects
include depressed mood and decreased sexual desire or ability. Dr. Milewski
noted in his report a number of the plaintiffs symptoms were organically
unexplained and he felt there was a conversion disorder. Overall, he saw no
change in the plaintiffs symptoms over the last three years.
6.
Neurological consult with Dr. Kennely Ho
[86]
Dr. Ho is a neurologist. The plaintiff first presented to Royal
Columbian Hospital Emergency on October 9, 2008 with a four-day history of
abnormally uncontrollable shaking movements of his legs and his left arm and
some difficulty with urination. This shaking is termed myoclonus, an abnormal
shaking of the limb, usually rhythmic and high amplitude, more dramatic than a
tremor. Myoclonus is a symptom rather than a disease.
[87]
The plaintiff also complained of increasing pain in his neck, shoulders
and back. He reported having been in a motorcycle accident on September 13 and
said he had landed on his head. He told Dr. Ho he had experienced difficulties
emptying his bladder.
[88]
When Dr. Ho examined the plaintiff he found ankle clonus. He also found
bilateral downgoing plantars, or a Babinski reflex, which is a sign of
neurological injury indicating an abnormality in the spinal track, cord or
brain. Dr. Ho noted very brisk reflexes in the plaintiffs lower
extremities. A spinal cord injury releases the control of the brain on leg
movements so they become abnormally brisk. Dr. Ho said clonus is typical
with spinal cord injuries, as is weakness more on one side than the other,
which the plaintiff demonstrated; however, the myoclonus the plaintiff
displayed was not typical.
[89]
The plaintiffs CT scan was normal but a spinal MRI showed a moderate
left paracentral disc protrusion at the C5-6 level. Dr. Ho saw no abnormal
signal changes in the spinal cord and the thoracic and lumbar spine images were
normal. Dr. Ho diagnosed suspected acute disc protrusion at the C5-6 level
as well as abnormal myoclonic movement disorder. He questioned whether there
was a relationship between the two at that time.
[90]
Since spinal cord injuries can deteriorate quickly, Dr. Ho referred
the plaintiff to Dr. Heran, a neurosurgeon. Dr. Heran performed a
discectomy and anterior fusion at the plaintiffs C5-6 disc on October 10, 2008.
[91]
Dr. Ho next saw the plaintiff on October 24, 2008. He expected to
see some improvement as a result of the surgery but the plaintiff continued to
exhibit clonus. Dr. Ho prescribed anti-spasmodic medication. On October
30, 2008, Dr. Ho saw the plaintiff again. The plaintiff reported trouble
with urinating and with bowel movements, a sign of spinal cord injury. His
limbs were jerky as they had been a week earlier (both legs and left arm). Dr. Ho
ordered a second series of MRIs. They showed the disc protrusion was slightly
decreased compared to the pre-operative MRI. A brain MRI was also conducted. He
also did a series of MRIs for spinal cord changes.
[92]
On December 2, Dr. Ho noted some improvement. He thought the injury
was causing over activity and wanted to settle it down with anti-spasmodic medication.
The medication had a short-term positive effect but by January 9, 2009 the
plaintiff had deteriorated and exhibited sustained ankle clonus on both sides. Dr. Ho
was frustrated because he thought he had a handle on the problem. He increased
the anti-spasmodic medication and referred the plaintiff to the UBC Movement
Disorder Clinic.
[93]
On January 27, 2009, Dr. Ho saw the plaintiff again and noted he
was steadily getting worse. They discussed a strategy for the plaintiff to
slide his foot along the ground rather than step on it normally in order to
avoid triggering clonus. On February 3, the plaintiffs limb shaking had
decreased and he was in the best shape Dr. Ho had ever seen him. He could
not figure out what had caused the improvement and began to question whether
there was a functional or psychiatric problem.
[94]
The plaintiff returned to Dr. Ho in June 2009. His condition had again
deteriorated. Dr. Ho found clonus and spasticity but found it to be
atypical. When he tried to elicit clonus he got a strange kicking response and
it was irregular, not regular, sustained clonus. He discussed the possibility
of psychiatric intervention with the plaintiff.
[95]
Dr. Ho did not see the plaintiff again after June 2009. He provided
a report to the Court as well as an updated report in which he concurred with Dr. Hurwitzs
conclusion that there was a combination of psychiatric and physical causes to
the plaintiffs condition.
[96]
Dr. Ho agreed on cross-examination that the plaintiff gave him a
different account of events and symptoms than he gave to Dr. Heran, the
neurosurgeon. He characterized the plaintiffs case as a very challenging one. What
puzzled him the most was the myoclonus coupled with the relative lack of
weakness, which is not typical of spinal cord injuries. He could find no physical
or mechanical cause for the myoclonus. There was no demonstrated injury to the
cervical spinal cord by way of clinical features and multiple imaging studies,
including the last MRI scan of the cervical spine on January 27, 2009. Dr. Ho
concluded in his report:
In view of the observations of
this movement disorder with its many odd features including features that
suggested a functional component, as well as the inability to find a definite
physical cause for this, I had come to the conclusion that the abnormal
movement disorder was mostly functional in nature. Whether this was caused
by the MVA is not entirely clear. The proximate association would be with the
MVA although there was a time lag of about three weeks prior to the onset of
the myoclonus. This may have served as a possible stressor and the associated
psychological changes may have predisposed to the abnormal movements, although
I must add that I am not a psychiatrist and this type of assessment is best
left to psychologists and psychiatrists.
7.
The plaintiffs progress after Dr. Hos involvement
[97]
The plaintiff saw a variety of doctors after his last appointment with Dr. Ho.
These included: Dr. Gopinath, a psychiatrist; Dr. McKeown at the UBC
Movement Disorder Clinic; Dr. Caillier, a physiatrist; and Dr. Tham
at the UBC neuropsychiatric unit. Those doctors were all inclined to the view
that the plaintiffs condition was largely functional.
[98]
Others involved in the plaintiffs care were Dr. Perry, a clinical
pharmacologist, and Dr. Hyams, who treats chronic pain. Dr. Hyams
became the plaintiffs primary medication prescriber as he saw him more
frequently than did Dr. Milewski.
[99]
The plaintiff also had treatment from a physiotherapist and assistance
from two occupational therapists.
8.
David Moffitt – physiotherapist
[100] Mr. Moffitt
began treating the plaintiff on December 19, 2008. At that time the plaintiff
was using a walker. He had a 45 degree range of motion in his left cervical
spine and 55 degrees in his right. Normal range of motion is 80 degrees. Mr. Moffitt
noted a myoclonic response to dorsiflexion of the plaintiffs foot. There was
considerable muscle spasm in the plaintiffs lumbar spine at dorsiflexion as
well, which Mr. Moffitt thought was a guarding response to external
stimulus. The plaintiff reported the primary area of pain was in his upper
cervical area, radiating to the left and right but more intense on the left
side, as well as bilateral knee pain. He had spasms in his legs and lumbar
spine when he attempted to walk normally rather than with a shuffle gait.
[101] Mr. Moffitt
treated the plaintiff with moist heat, pulse magnetic therapy and gait
re-education to optimize his safe ambulation. He treated the patient
frequently, both at home and in his clinic, between late 2008 and the present. He
has used a variety of treatments to increase blood flow, relax muscles and avoid
lactic acid build up to cut down on spasticity.
[102] Mr. Moffitt
saw some improvement in January and early February 2009 but on February 11 the
plaintiff was back to using his walker and exhibited significant tremors in his
legs and spasticity of gait.
[103] Mr. Moffitt
administered standardized testing of the plaintiffs balance and mobility in
July 2010. In 2010, the plaintiff scored 25 out of 56, which indicated
compromised mobility and balance. A score of 56 indicates a person is fully
functional; 41-56 is independent; 0-20 is wheelchair bound.
[104] On
testing, the plaintiffs left hand grip strength was less than 50% of his right
hand even though he is left hand dominant. Leg testing was difficult as
exertion would cause muscle spasms. He did very poorly with the finger
dexterity test. He was supposed to screw nuts and bolts together but kept
dropping the nuts. The left side of the plaintiffs body was weaker on limb
rotation tests. A Wii fit program to test his balance reflected he was taking
68% of his body weight on the left and 32% on the right versus a normal range
of close to 50/50.
[105] The
plaintiff could sit to stand but had to use his hands. To go from stand to sit the
plaintiff needed assistance. He performed poorly when he had to stand without
support with his eyes closed. He could not bring his feet together with heels
touching. He could bend over and stand and look over his shoulders but needed
supervision. He could stand on a step and lift the other foot four times but could
not stand on one foot.
[106] When Mr. Moffitt
administered the same standardized tests in May 2013, the plaintiffs score
declined to 18. He could not complete many of the tests due to poor balance.
[107] Mr. Moffitt
monitored the plaintiff to see if he could carry out activities, such as touching
his toes, when distracted. He did not observe this with the plaintiff.
[108] Mr. Moffitt
reported to the ICBC adjuster in May 2013 that the plaintiff had severe
dystonia, a speech issue, myoclonus in his lower extremities, a high degree of
pain, decreased cervical range of motion, decreased lumbar flexion and restricted
movement generally in his spine. Nothing has changed to the date of trial.
[109] Mr. Moffitt
agreed on cross-examination that he did not know the plaintiff before the
accident so could not compare speech patterns. He was never told the plaintiff might
be somatizing. Mr. Moffitt agreed that compared to the initial acute phase
there was some improvement in the plaintiffs symptoms. He acknowledged the
usual pattern in most cases is for treatment to decline in favour of self-guided
exercise.
9.
Occupational therapists – Scott Myles and Abdollah Rezazedeh
[110] Mr. Myles
was involved with the plaintiffs file through ICBC between March 2009 and
August 2010. His role as an occupational therapist is to assess a persons
function and assist them with a return to normal daily living through a variety
of methods. His first report to ICBC about the plaintiff noted his tremors, his
gait, his difficulty with walking and his wild presentation of convulsing,
tremors and spasms. Mr. Myles said this did not change over the time he
dealt with the plaintiff.
[111] Mr. Myles
observed the plaintiff to have limitations in showering safely, walking without
falling, grocery shopping, cleaning his house and endurance while carrying out
tasks. Mr. Myles encouraged the plaintiff to use his energy to his best
advantage and manage his activities within the limits of his fatigue. He was
aware the plaintiff was getting assistance for cleaning, laundry,
transportation, grocery shopping and some meal preparation. He assisted the
plaintiff with obtaining a scooter and a lift for his truck.
[112] Mr. Myles
assessed the plaintiffs mental state to determine his motivation and
determination to succeed. He was concerned about depression. He noted that
fatigue was a big factor as the plaintiff slept about 16 hours per day and it
took great effort for him to control his spasms. The plaintiff had periods
where he was active and motivated and periods where he was frustrated. They
worked together to identify a realistic sustained effort level. The plaintiff
was determined but not always realistic. Mr. Myles noted some improvement
during his time with the plaintiff. His left arm tremors improved, he regained
independence with personal care, and he learned to suppress the leg tremors by
pressing his heels into the ground.
[113] Mr. Myles
made recommendations to help the plaintiff such as using the community pool and
hot tub, using a TENS machine for pain management, doing physiotherapy and
increasing his access to the community by using a scooter. He tried to get the plaintiff
out doing things, such as crabbing and archery, but the plaintiff tended to
exhibit insecurities and low self-confidence, describing himself as a gimp
and fucked on occasions. He was also concerned about his personal security. He
wanted a big metal door on his townhouse and had a spike put on the end of his
cane for self-defence.
[114] The
plaintiff became frustrated with the number of different people coming into his
home to clean and provide home care and decided to make his own arrangements
for that through an agency. He made some inquiries about working again but did
not take it beyond that. He struggled with fatigue and pain for the entire time
Mr. Myles dealt with him. He had falls in the shower and once knocked the
glass door off.
[115] Initially the
plaintiff had 29 hours of home support per week but by August 2009 was down to 10
hours and then to seven by November. Mr. Myles reported improvement in the
course of treatment and room for optimism. Mr. Myles left his job for
another and passed the file on to Mr. Rezazedeh.
[116] Abdollah Rezazedeh
took over from Mr. Myles in late October 2010. His mandate was to work
towards getting the plaintiff out and about and engaged in the community. He conducted
a home visit on November 10. The plaintiff had marked difficulty with mobility.
He held onto rails when walking. He had a wide gait pattern. He used his arms
to stand up and sit down. He had marked difficulty with balance. The plaintiff
reported difficulty with pain, activity tolerance, balance, falling and going
out. He tended to stay home but went to physiotherapy twice a week and swam for
exercise. The plaintiff was using a scooter. He had difficulty carrying objects
because he had his cane in one hand and held onto rails or furniture with the
other. He said he felt trapped, frustrated and fatigued.
[117] Mr. Rezazedeh
noticed spasticity in the plaintiffs lower legs and claw toes caused by the
plaintiffs toes curling under and rubbing against his shoes, causing calluses.
Mr. Rezazedeh looked into supportive shoes made of softer material or a
device in the shoe to stretch out the toe area. He tried orthotics but the
plaintiff said they created a burning feeling in his feet.
[118] Mr. Rezazedeh
saw the plaintiff about 18 times over the course of a year. The visits were not
productive. Mr. Rezazedeh did not see any changes in the plaintiffs condition
over time and concluded he could not help the plaintiff. The plaintiff was not
unwilling to do things but seemed unable. He had a tendency to cave in, avoid
people and close the curtains. It was difficult to drag him out of his cave
and get him involved in activities. He would not always respond to phone calls
so Mr. Rezazedeh went to his house and knocked on the door. There were
days when he knew the plaintiff was home but did not answer the door. He
reported constant pain and fatigue. The one exception was following a cortisone
injection which seemed to help.
[119] Mr. Rezazedeh
encouraged the plaintiff to walk and swim. He would only walk about a half
block until he leaned against a support and had shaking in his lower
extremities. He could not carry a coffee cup from the counter to the dining
table. He had poor balance, and shaking hands and legs. Weather was a factor in
his pain and fatigue. The worse it was outside, the worse the plaintiff felt. He
responded well to heat and after time in a sauna his mobility improved. Mr. Rezazedeh
said the leg tremors disappeared when the plaintiff was relaxed or in the water
or sauna. Mr. Rezazedeh concluded his involvement with the plaintiff with
a report to ICBC on November 20, 2011.
10. Assessments
by experts for court
[120] As Dr. Ho
observed, the plaintiff presented as a puzzling case. Following the accident he
was assessed and treated by a battery of doctors and other health care
providers. Ultimately, he was assessed by specialists in preparation for this
litigation, including his own expert, Dr. Hurwitz, and ICBCs experts, Dr. OShaughnessy
and Dr. Woolfenden.
[121] The
experts all seem to agree that the plaintiffs current condition is unlikely to
change significantly, although they each suggested various treatments. The
experts differ in opinion on whether there is a neurological cause for some of the
plaintiffs symptoms, in particular the myoclonus.
i.
Dr. Trevor Hurwitz – neuropsychiatrist
[122] Dr. Hurwitz
conducted an exhaustive review of the plaintiffs medical records and
interviewed the plaintiff and his mother in July 2013. He found the plaintiff
to be a poor historian who has given different information to different doctors
which has caused difficulties diagnosing him. He gave as an example the
plaintiffs assessment by the UBC Movement Disorder Clinic which was clouded by
the plaintiffs failure to describe some of his symptoms or difficulties. Dr. Hurwitz
said the plaintiff genuinely misreports, a common issue for patients on
narcotics and other drugs.
[123] The
plaintiff exhibits unequivocal symptoms of post-traumatic stress disorder
characterized by flashbacks to the accident. The doctor found ongoing evidence
the plaintiff suffers from a depressive illness but holds firm to his opinion
that psychiatric symptoms affect the plaintiffs test results.
[124] The
plaintiff had a pattern of somatization before his accident. Dr. Hurwitz
concluded the plaintiffs psychiatric distress has been somatized and accounts
for some of his symptoms which are difficult to explain on an organic basis. Specifically,
the plaintiff has developed a chronic severe whole-body pain syndrome. The pain
should have resolved over three to six months following spinal surgery. The
failure to resolve and the fact that it has worsened and become more
generalized beyond the site of his original injury suggests the emergence of a
psychiatric illness that has become somatized.
[125] Five years
post-accident, his pain, both in severity and location, cannot be explained on
the basis of soft tissue injury or myelopathy. The myelopathy would only
account for the shooting electrical component he describes. His high dose of
narcotic analgesics probably masks his depression but without them he would be
more depressed. The high dose of medications also makes the plaintiffs
complaint about headaches puzzling. Interestingly, while Dr. Hurwitz
suspected the plaintiff had compromised control of his left hand on a finger
tapping exercise, an objective measurement by a machine indicated he could tap
his fingers together at a normal rate.
[126]
Dr. Hurwitz summarized his findings:
Mr. Best, as a result of his motorcycle accident,
sustained musculoskeletal injuries including an injury to his neck
destabilizing his C5/6 intervertebral disc then underwent delayed rupture with
progressive prolapse causing cervical spinal cord compression. This presented
as a typical compressive myelopathy with typical symptoms of spinal cord
compromise but also atypically with propriospinal myoclonus.
The pain from his soft tissue injuries, the psychological
impact of the accident itself (reflected by persistent flashbacks) and the
psychological impact of function compromising and devastating neurological
disability have precipitated a depressive illness in addition to a
posttraumatic stress disorder. This depressive illness is not only manifesting
with typical signs of depression but is also being somatized to account for
neurological signs that cannot be explained on an organic basis (so called
functional overlay) and the development of a severe and medically unexplained
chronic pain syndrome. Premorbidly Mr. Best had shown this pattern of
coping response namely to somatize psychiatric distress.
Lastly his persistent cognitive
intellectual difficulties are also due to his ongoing depressive illness via
compromised attention and cognitive slowing both of which are part of the
symptom complex of depressive illness.
[127] Dr. Hurwitzs
opinion is that the plaintiffs myoclonus is a bona fide symptom of
spinal cord compression known as propriospinal myoclonus, a very rare diagnosis.
The connection between the symptoms and a physical cause was contaminated in
earlier assessments because the plaintiff is a known somatizer, meaning he
elaborates symptoms when under psychological stress. This confuses those trying
to diagnose him, who end up referring him to a psychiatrist. Evidence of
intrinsic spinal cord disease continues to the present and is consistent with
propriospinal myoclonus.
[128]
Dr. Hurwitzs final diagnoses of the plaintiff were:
1. Cervical myelopathy presenting with propriospinal
myoclonus (currently much settled) with a residual spastic ataxic gait, left
hand weakness and reduced sexual functioning.
2. Major depressive
disorder and posttraumatic stress disorder presenting with varying levels of
depression, flashbacks, anxiety, pain and cognitive-intellectual difficulties. To
a greater or lesser extent his psychological distress is being somatized and is
contributing to some of his physical symptoms (neurological and pain) that
cannot be adequately explained on an organic basis-conversion symptoms and or
functional overlay.
[129] Counsel
for ICBC cross-examined Dr. Hurwitz extensively on his findings of depression,
post-traumatic stress disorder and propriospinal myoclonus. Dr. Hurwitz
maintained that while the plaintiff did not have symptoms from every category
in the DSM IV list of symptoms for post-traumatic stress disorder, a full
house of symptoms was not necessary to make the diagnosis.
[130] Regarding
propriospinal myoclonus, Dr. Hurwitz agreed it is a very rare and somewhat
controversial diagnosis because psychiatric conditions can present in the same
way as propriospinal myoclonus, leading to false diagnoses of the latter. However,
Dr. Hurwitz confirmed his view that the plaintiff genuinely suffers from propriosopinal
myoclonus as his symptoms were impossible to fake and they originated and were
worse on his left side, which is where the injury occurred.
ii.
Dr. Andrew Woolfenden – neurologist
[131] ICBCs
neurologist, Dr. Woolfenden, authored an opinion dated July 26, 2012. He
reviewed the plaintiffs medical history and questioned whether some of the
neurological symptoms found by other doctors were truly neurological. In
particular, he questioned whether the plaintiff exhibited true sustained clonus.
He found, on examination, that the plaintiff presented with significantly
variable leg tremors which were not indicative of neurological compromise. Similarly,
the pain described by the plaintiff as being throughout his whole body, apart
from his ears and hair, is not indicative of a neurologic source of pain.
[132] Dr. Woolfenden
acknowledged some of the plaintiffs pain could be related to the spinal injury
but it was difficult to determine to what degree because of his significant
functional non-neurologic problems. He recommended a reduction in narcotic
medication through a pain specialist and active rehabilitation. He deferred to
a psychologist and a psychiatrist for suggestions about improving the
plaintiffs limitations.
[133] Counsel
for the plaintiff cross-examined Dr. Woolfenden extensively. He challenged
Dr. Woolfendens view that the neurological findings of previous doctors
might have been inaccurate. Dr. Woolfenden explained that in his view,
some of these neurological indicators may have been misconstrued by previous
doctors and some of them were within the normal range.
[134] Dr. Woolfenden
agreed he had considered propriospinal myoclonus as the cause of the
plaintiffs difficulties. He did research on it but did not mention it in his
report because he ultimately rejected that as a diagnosis. Instead he came to
the conclusion that most of the plaintiffs difficulties, in particular the tremors,
were functional or non-neurological.
iii.
Dr. Roy OShaughnessy – psychiatrist
[135]
Dr. OShaughnessys opinion was that the primary cause of the
plaintiffs condition was psychiatric. He deferred to the neurologists opinions
about the relevance of some of the plaintiffs symptoms but concluded:
Pulling the material together, I
would conclude that this man likely does have medically unexplained symptoms
that more likely than not are due to underlying psychiatric difficulties and in
particular to a somatoform illness, i.e. Conversion Disorder. By definition,
Conversion Disorders are psychiatric illnesses in which a person may present
with what appear to be medical or neurologically-based symptoms but in which
there is no adequate medical or neurological explanation. By definition, these
individuals truly believe themselves to be ill and disabled and act accordingly
at all times; i.e. the only time you will see improvement is when they are
sleeping or when they are taking medications that reduce anxiety in functioning.
Individuals presenting with somatoform illnesses of this type are often highly
resistant to perceiving their difficulties as being anything but medical or
physical in nature and they tend to reject psychological or psychiatric
explanations for their symptoms and difficulties.
[136] Dr. OShaughnessy
opined that while post-traumatic stress disorder and depression could have been
present at some point, he believed they were not present, or at best they were in
remission at the time he evaluated the plaintiff. He did not think the
plaintiff had post-traumatic stress disorder because he denied flashbacks,
nightmares, intrusive memories or any other clear symptoms of depression. He
did not think the plaintiff was either malingering (a conscious elaboration of
symptoms for specific external gain) or suffering from factitious disorder
(conscious elaboration of symptoms primarily to assume a patient role with its
secondary gain issues). He suggested a referral to the neuropsychiatry services
at UBC; however, as counsel for the plaintiff noted, that had been done prior
to this report (Dr. Tham) and following it (Dr. Hurwitz).
[137] Among
other things, counsel for the plaintiff challenged the sufficiency of the
material Dr. OShaughnessy had access to, and the significance of the
plaintiffs denial of depressive symptoms to previous doctors. Dr. OShaughnessy
maintained that while the plaintiff might have been depressed and have suffered
from post-traumatic stress disorder, those conditions were in remission at the
time of his examination.
11. Conclusion
on the medical cause of the plaintiffs condition
[138]
As counsel for ICBC said in written closing submissions:
Much time in this case has been
spent on the actual diagnosis. It is submitted there is very little distinction
between the diagnoses of the various medical practitioners. In fact, it really
all turns on a label: is the plaintiff somatizing depression and post-traumatic
disorder or does he have conversion disorder? All of the experts, including Dr. Hurwitz,
note a non-anatomical presentation. In fact, the most significant symptoms are
non-anatomic. Indeed, Dr. Ho likely summarized the distinctions between
his opinion and Dr. Hurwitzs opinion, Where I may differ somewhat from Dr. Hurwitzs
opinion may be in the relative contribution of a functional overlay component
versus a component of neurological dysfunction related to the structural injury
of the spinal cord.
[139] I find on
a balance of probabilities that the main cause of the plaintiffs current
condition, including the myoclonus, is conversion disorder. I come to this
conclusion because of the relative rarity of propriospinal myoclonus and how it
can be mistaken for psychiatric problems. The non-anatomical presentation was
also persuasive. As early as Dr. Hos involvement, a strange kicking
motion was noted, which was inconsistent with a neurological cause. Some of the
plaintiffs pain may well be as a result of the surgery on his C5/6 disc;
however, the vast majority of his symptoms, in my view, are not organic or
structural in cause.
[140] Diagnosis of
cause aside, what I glean from the experts is that nobody predicts anything
close to a full recovery for the plaintiff. Dr. Hurwitz posited a 14%
possibility of some recovery, though in light of the fact that the plaintiff
has already been treated with a wide variety of anti-depressant drugs, this is
a very optimistic prognosis. The other experts recommended various
interventions in an effort to assist the plaintiff.
12. Barbara
Baptiste – the plaintiffs cost of future care expert
[141] Ms. Baptiste
was qualified to give expert opinion evidence in rehabilitation science and
life care planning, a sub-specialty of rehabilitation practice focussed on planning
the future needs and costs of people with complex and catastrophic disabling
conditions.
[142] Ms. Baptiste
reviewed the available medical evidence and the results of questionnaires
administered to the plaintiff. She conducted a home visit on November 16, 2010.
Ms. Baptiste spoke with the plaintiff and his brother Jason to make
observations and collect information relevant to her recommendations. Her
initial report is dated March 28, 2010 and an updated report was completed on November
20, 2013.
[143] Ms. Baptiste
set out a list of facts and assumptions made in the preparation of her report. One
of the assumptions she made was that a brain injury was likely; however, this
diagnosis was ruled out after the report was prepared. Ms. Baptiste said
in evidence it did not change the scope of her recommendations for the
plaintiff.
[144] Ms. Baptiste
noted Mr. Best has a wide-spread combination of persistent problems, with
the associated limitations and restrictions, which call for a variety of
external supports. He experiences profound pain, fatigue, and motor deficits. The
plaintiff told Ms. Baptiste he has had several falls since his accident
resulting from his legs giving out and that he is in constant pain from the
moment he wakes up until the time he goes to bed. He also complained of
arthritis in his ankles, knees, hips, back, elbow and wrist, though I note this
appears to be a self-diagnosis as none of the medical experts diagnosed
arthritis before or after 2010.
[145] Ms. Baptiste
recommended services directed towards compensatory strategies and enabling the
evaluee to have options in life and a quality of life that resemble what he
would have had, but for the motor vehicle collision. Specifically, she
recommended:
·
a case manager to assist the plaintiff in managing his varied
needs so he is not overwhelmed by support services and decisions on aids and
devices and so that services are properly paced and accessed over the years;
·
ongoing medication funding;
·
physiotherapy treatment;
·
occupational therapy to assist the plaintiff with mobility
evaluations and mobility assistance as he ages;
·
two visits with a speech language therapist based on observations
that the plaintiff has an unusual speech pattern;
·
assessments with a dietician/nutritionist to assist the plaintiff
with changing nutritional needs;
·
a pain management program administered through Dr. Hyams;
·
rehabilitation support services to get the plaintiff out and
integrated into the community;
·
a full time, live-in caregiver for the rest of his life or in the
alternative, a personal support worker full time for three years then reduced
to four hours per day of assistance;
·
an attendant to travel with the plaintiff;
·
mobility equipment including a specialized wheelchair for accessing
all types of terrain; an ATV for hunting or fishing or spending time in the
woods; ergonomic aids and equipment for the kitchen; sporting equipment for new
activities like sledge hockey; a specialized walker; an iPad; pain management
tools such as a TENS machine; and medication to assist with his sexual
functioning;
·
education and vocational support services to assist the plaintiff
with engaging in meaningful volunteer work;
·
homemaking, home maintenance and handyman services;
·
transportation aids, such as a BCCA membership, winter tires, and
the cost of a wheelchair accessible vehicle over time; and
·
funding for a home assessment to determine what modifications
need to be made to the plaintiffs home in the future or if he seeks to
purchase a wheelchair accessible home.
[146] Ms. Baptiste
provided an estimate of the cost of care items in her report, based on hourly
rates. The defence expert in this area, Mr. Worthington-White, provided
updated hourly rates. Based on these updated rates, the range of the
recommended cost of care items is between $2,631,351 and $3,974,425. The
difference in these projections is largely contingent on whether the plaintiff
has established that he needs a full time caregiver.
[147] Counsel
for ICBC cross-examined Ms. Baptiste extensively on the scope of her
recommendations. She acknowledged the plaintiff had been diagnosed by some of
the medical practitioners with conversion disorder, which she understood to
mean unconscious sick role behaviour. Ms. Baptiste also acknowledged she
had that information but did not mention it in her report. She said the
majority of the information about conversion disorder was sent to her in 2013
and it did not change her recommendations because, regardless of whether the
cause is physical or psychiatric, the plaintiffs problem is still the
persistent impairment of functional issues.
[148] Ms. Baptiste
agreed she did not conduct a physical examination of the plaintiff, such as
testing his sitting tolerance or having him carry things for her. Ms. Baptiste
said his distress level was such that she did not ask him to carry anything. She
did not ask him to demonstrate his ability to get in and out of the shower, do
laundry or prepare meals since he said he was at risk of cutting himself and
had not been carrying out such a task.
[149] Ms. Baptiste
was not aware the plaintiff had lived on his own for some time prior to his
brother Jason moving in with him. She agreed the information gathered from
Jason established that the plaintiff was independent with banking and money, dressing,
feeding, toileting, bathing with adaptations, shampooing, shaving with some
assistance, tooth brushing and nail grooming, getting in and out of bed,
getting in and out of his car, sitting with limited tolerance, driving with
distance limitations due to fatigue, and getting around without his scooter. He
described arthritis to her but it is not in the medical reports. She also agreed
Dr. Hurwitzs report indicates pain that cannot be explained on the basis
of soft tissue injury or myelopathy and it seems to be non-organic pain. She
agreed that he can grocery shop but needs help with heavy items, and that he
can do laundry with assistance on a good day but not a bad day. He did not
complain to her about his mattress.
[150] Ms. Baptiste
did not test the plaintiffs grip strength as he was not complaining of
problems with it. The problem was more with the myoclonic responses. She agreed
it was possible there may have been improvement in the 35 months between the
time the report was prepared in November 2010 and the time of trial. She also agreed
that Mr. Myles, the occupational therapist, did not have a case manager
working with him.
[151] When it
was suggested that the plaintiff did not need personal support within the home,
Ms. Baptiste said she was aware the plaintiff was home alone most of the
day and could run personal errands and could feed himself basic meals, but she
said in her opinion he was quite isolated. She stood by her recommendation of a
live-in personal support worker but agreed a live-in nanny with training or
experience in nursing might be more cost-effective. She recognized that under
her recommendations, on some days the plaintiff would have more than 24 hours
of care or attention in a day during an intensive period. Ms. Baptiste
acknowledged the plaintiff expressed frustration with a lot of different people
coming into his home but she felt he would get over it with proper support.
13. Cost
of care critique
[152] The
defence expert, Gary Worthington-White, was retained by ICBC to provide a
critique of Ms. Baptistes report. It was evident during cross-examination
that Mr. Worthington-White had not been provided with all of the
information that might have assisted him with his critique. His mandate appears
to have been to chisel down the projected cost of future care as much as
possible, although there were some areas where he was in agreement with Ms. Baptiste.
Overall I did not find his evidence of much assistance in reaching a conclusion
on the appropriate amount of damages to award for the cost of future care.
E.
Conclusion on the plaintiffs current condition, abilities and prognosis
for the future
1.
Credibility and Reliability of Evidence
[153] I found
the plaintiff credible but acknowledge he had problems with reliability in
terms of to whom and when he reported symptoms. For example, he did not
consistently report hearing the ringing doorbell sound he says he heard as he
fell asleep. Further, as counsel for ICBC noted, the first time Mr. Best reported
shaking in his whole body was during his direct examination. The plaintiffs frequent
visits to Dr. Milewski and to Mr. Moffitt, and the early intervention
by the occupational therapists, are of assistance as they document the
plaintiffs real-time complaints and provide confirmatory observations by
medical professionals.
[154] The other
witnesses for the plaintiff were credible and reliable. His family obviously
cares very deeply for him and wants the best care possible for him. I find they
gave their evidence in a balanced way and did not exaggerate the plaintiffs
condition, past or present.
[155] ICBC
maintains I should draw an adverse inference against the plaintiff as he did
not testify first. While it is often preferable to call the plaintiff first to
present a coherent case, this is a matter of effective advocacy and not law,
evidence or civil procedure. Thus, unless the plaintiff can tailor his evidence
as a result, no adverse inference should be drawn: Gustafson v. Davis, 2012
BCSC 1576; Ram v. Rai, 2012 BCSC 1718. I acknowledge in the vast
majority of personal injury cases the plaintiff will testify first; however, this
plaintiff was not in the courtroom when the first few witnesses testified. He did
not have any ability to tailor his evidence to match with theirs, nor do I find
he would have the necessary wherewithal to do so. As I noted above, there are
issues with the reliability of his recall but there is also significant supporting
evidence available which allays many concerns in this regard. I decline to draw
an adverse inference against the plaintiff in this case.
III.
Liability
[156] I find the
defendant April Thomas is 100% liable for the accident.
IV.
Causation
[157] I find the
accident is the sole cause of the plaintiffs current condition. ICBC did not
allege a crumbling skull scenario.
V.
Damages
A.
Non-Pecuniary Damages
[158] The
plaintiff seeks an award of non-pecuniary damages at the upper end of the range
prescribed by the trilogy of cases from the Supreme Court of Canada. Adjusted
to current day inflation, a maximum award would be $351,000. The plaintiff
relies on the following cases as guidelines:
·
Scoates v. Dermott, 2012 BCSC 485, where the court awarded
$250,000 in non-pecuniary damages to a 30 year-old man who sustained
orthopaedic injuries as well as cognitive, emotional and behavioural problems.
·
Grewal v. Brar, 2004 BCSC 1157, where the court awarded $294,000
in non-pecuniary damages to a woman who suffered a C2-3 fracture with spinal
cord injury, orthopedic injuries, brain injury and sexual dysfunction.
[159] ICBC
advocates for a substantially smaller award of between $100,000 and $125,000
and relies on the following:
·
Samuel v. Levi, 2008 BCSC 1447, with a $100,000 award to a
young female plaintiff who was found to be totally disabled from work due to
depression and conversion disorder.
·
Engel v. Engel, 2000 BCSC 1330, where a female plaintiff in
her late fifties with a lifelong history of depressive episodes, borderline
personality traits and a somatization disorder was awarded $50,000; however, the
third party acknowledged it is not on all fours with this case because of the
significant pre-existing problems.
·
Hussack v. Chilliwack School District No. 33, 2009
BCSC 852, where a teenaged male who suffered a mild traumatic brain injury
while playing field hockey at school and ended up with a significant, disabling
somatization disorder was awarded $125,000.
·
Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (B.C.C.A.) –
the plaintiff, who was 53 at the time of the accident, suffered a somatoform
disorder as a result of a motor vehicle accident. She spent most of her time in
a wheelchair and would not leave the house alone. The Court of Appeal reduced
the trial judges award for non-pecuniary damages to $75,000, which the third
party adjusts to $105,000 to account for inflation since 1996.
[160]
The purpose of non-pecuniary damages is to compensate a plaintiff for
pain, suffering and loss of enjoyment of life. Stapley v. Hejslet, 2006
BCCA 34, 236 D.L.R. (4th) 19, provides guidance with respect to determining an
award for non-pecuniary damages:
[46] The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris (2004), 237 D.L.R. (4th) 193] that influence an award of
non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life.
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163 (QL), 2005 BCCA 54).
[161] The
plaintiff was almost 32 when the accident happened. The original injury was to
his C5-6 disc. I find the following facts about the plaintiffs condition have
been established on a balance of probabilities.
[162] Since the
accident, the plaintiff has been in constant pain, notwithstanding an
aggressive regime of pain treatment through medication and other therapies. He
is disabled from competitive employment. While he can drive and walk, with some
difficulty and with the assistance of a cane, he cannot engage in the
activities he enjoyed before the accident. In terms of physical activity, he
can do little more than walk very short distances and swim. He can no longer
work at a job he enjoyed. His emotional suffering is extreme. He has given up
hope of being a father and had a vasectomy as he would be unable to engage in
play or chase a child. His enjoyment of sexual activity is significantly
diminished as he has lost sensation in his penis during intercourse. His family
and friends attest to the fact that he is not the same person as before the
accident. He no longer laughs and jokes around. He is constantly fatigued. His
family and two close friends remain engaged with him but his world has shrunk
considerably from his pre-accident social activities and he has essentially
lost a healthy, active, social lifestyle. He is not as mentally sharp as he
was, whether by virtue of the injury or the associated medications he takes to
manage his condition. None of the experts predicted anything remotely
approaching a full recovery.
[163] Taking into
account all of the foregoing, as well as the range of cases provided by
counsel, I award the plaintiff $225,000 in non-pecuniary damages.
B.
Past Wage Loss
[164] The third
party does not take issue with past wage loss of $211,480, which the
plaintiffs expert Mr. Taunton calculated with regard to tax and payroll
deductions as mandated under the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231, ss. 94, 98.
C.
Loss of Future Earning Capacity
[165] A claim
for loss of future earning capacity engages two questions: (1) has the
plaintiffs earning capacity been impaired by his injuries; and if so, (2) what
compensation should be awarded for the resulting financial harm that will add
up over time?
[166] Counsel
agree the approach to take to loss of future earning capacity in this case is
the earnings approach as the plaintiffs loss is easily measurable: Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.)
and Perren v. Lalari, 2010 BCCA 140 at para. 32. The earnings
approach involves a certain degree of mathematical calculation but the
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18.
[167] The
plaintiff was employed by the District of Maple Ridge when the accident
occurred. He started as a building service worker and moved over to the parks
department. He liked the parks job for its proximity to his home and for the
regular hours and days of work. In order to attain his initial employment with
the District, the plaintiff took some courses at BCIT and other post-secondary
institutions. While employed in the parks department he trained in the use of
equipment.
[168] I am
satisfied that the plaintiff would have continued to work for the parks
department within the District of Maple Ridge at least into his early sixties,
perhaps to 65. Given that he took courses in the past to better his qualifications,
I am satisfied he would likely have taken further courses in the time after the
accident to move up the pay scale in the parks department. But for the
accident, by the time of trial he would likely have moved up at least one pay
grade and between the time of trial and his retirement he would likely move up
at least another pay grade.
[169] The wage
projections calculated by the plaintiffs expert, Mr. Taunton, provide a
helpful guide to assessing what the plaintiff would likely earn up until
various ages of retirement. He provided calculations based on the plaintiffs
continued employment as a labourer and an alternative scenario where the
plaintiff progressed up the pay scale to the Foreman 2 category. If the
plaintiff worked to 65 as a labourer the current value of his future income
loss would be $939,298 and his pension losses would be $63,217 for a total loss
of $1,002,515. If, but for the collision, the plaintiff had worked as a
labourer until the day the trial began and was promoted to Foreman 2 and worked
to 65, his pre-retirement loss would be $1,128,395 and his pension loss
$104,244 for a total loss of $1,232,639. The average of the two losses to age
65 is $1,117, 577.
[170] Counsel
for ICBC submits that Mr. Tauntons calculations of future wage loss benefits
includes earnings to age 65, yet the contingency adjusted wage loss projections
for ages 62-65 is $31,184.00, indicating an overlap between the calculations
for pension and for earnings. I am satisfied there should be a reduction to
account for this and I deduct $31,184.00 from the average noted above for a
total of $1,086,393.00.
[171] Finally,
ICBC urges me to find the plaintiff has some residual employability, for
example as an accommodated worker within the District of Maple Ridge capable of
doing short shifts several days a week as a cashier at one of the pool
facilities. There is no evidence the plaintiff will ever be competitively
employable again but I agree there should be a negative contingency built in to
an award for loss of future earning capacity to account for the possibility of
part time work in the future. ICBC seeks a 30% deduction but I find this is an
overly optimistic view of what the plaintiff is capable of doing by way of paid
work. I would deduct 5% from the total amount to account for residual
employability. The sum for loss of future earning capacity is fixed at
$1,032,073.35.
D.
Cost of Future Care
[172] This was
by far the most contentious issue at trial. The plaintiffs position, based on
the report of Ms. Baptiste, is in favour of a 24 hour care worker for the
rest of his life, in addition to a variety of other costs for items and
services. ICBC disputes the need for a care worker at all and concedes very few
of the services Ms. Baptiste says are necessary.
[173]
In Giczi v. Kandola, 2014 BCSC 508 Sigurdson J. neatly summarized
the principles applicable to an award for cost of future care:
[221] As Smith J. noted in Bystedt
(Guardian ad litem of) v. Hay, 2001 BCSC 1735 at para. 163, affd 2004
BCCA 124:
the claim [for
cost of future care] must be supported by evidence that establishes the
proposed care is what a reasonable person of ample means would provide in order
to meet what the plaintiff reasonably needs to expend for the purpose of
making good the loss
It must also be based on an objective test of what is
moderate and fair to both parties
[Citations
omitted.]
[222] McLachlin J. (as she then was), put it this way in Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at para. 198 (S.C.), affd
(1987), 49 B.C.L.R. (2d) 99 (C.A.):
The test for determining the
appropriate award under the heading of cost of future care, it may be inferred,
is an objective one based on medical evidence.
[223] The test in Milina
has been interpreted to mean that the care must relate to health needs, and not
simply enjoyment of life; however, the test does not require that a medical
doctor provide the evidence of the specific care that is required by the
plaintiff: Jacobsen v. Nike Canada Ltd. (1996), 133 D.L.R. (4th) 377 at paras. 181-182
(B.C.S.C.).
[174] Ms. Baptistes
report was very thorough and carefully prepared and provided for the best case
scenario for Mr. Best; however, in respect of some of the items she
recommended there was no evidence they were medically necessary in the legal
sense. On the other hand, ICBCs position, supported by Mr. Worthington-Whites
critique and recommendations, would result in an award for cost of future care
that is unduly low and require the plaintiff to rely on his family to provide ongoing
assistance far beyond what should reasonably be expected of them.
[175] After
considering Ms. Baptistes report, Mr. Worthington-Whites critique
and the medical evidence in this case, I find some of the items set out by Ms. Baptiste
to be medically necessary and some not. Where the items I allow were calculated
to start at the plaintiffs age at the time of the accident, I have adjusted
them to reflect costs going forward from his current age. Other items have been
adjusted to reflect what I view as less need for the goods or services than Ms. Baptiste
set out in her report. The numbers are taken from the table of costs provided
by Mr. Taunton with the necessary adjustments:
·
a case manager – $55,750;
·
medication (predicated on no MSP) – $50,000. This is
substantially lower than recommended, however, all the experts agreed that a
reduction in the amount of medication should be the goal for the plaintiff;
·
psychological services for both the plaintiff and his family – $51,019;
·
ongoing physical therapy – $50,699;
·
occupational therapy – $33,610;
·
a dietician/nutritionist to address his changed nutritional needs
– $1,420;
·
a pain management program through Dr. Hyams pain clinic –
$2,133;
·
rehabilitation support services – $98,700;
·
personal care services – 4 hours/day for a home support worker for
a total of $594,422;
·
a vacation attendant at $94,459. I have adjusted the amount
suggested as I do not find the plaintiff needs constant care while on vacation;
·
I am not satisfied on the evidence that the plaintiff will
require a power wheelchair in 10 years, nor am I satisfied an ATV is an
appropriate subject for a damages award. I do, however, include an amount for
the replacement and maintenance of the plaintiffs scooter ($5,000) and for the
replacement of his cane ($500);
·
I award an amount for general devices to assist with the
activities of daily living ($336) and for a specialized chair as the plaintiff
has difficulty sitting for long periods of time ($1680) but I heard no evidence
he requires a special mattress;
·
I do not award an amount for sporting goods or an iPad as those
are ordinary expenditures not caused by the accident;
·
a TENS machine to alleviate pain and discomfort is appropriate and
I award $2,318 for the machine and its fittings;
·
a hot tub is not an appropriate subject for a cost of future care
award and, in any event, the occupational therapists who have interacted with
the plaintiff emphasize the importance of his access to community centres and
swimming pool facilities to keep him involved in the community;
·
vocational support services in the amount of $3,500 to assist the
plaintiff with a modified return to either volunteer or accommodated paid work;
·
housekeeping and handyman services are awarded but I have reduced
the amount to $65,000 to take into account the plaintiff currently lives in a
rental property and the strata property he owns has a very small yard;
·
I decline to award an amount for a BCAA membership or winter
tires as those are ordinary expenditures not caused by the accident;
·
I decline to award an amount for a wheelchair accessible van and
related equipment as I heard no evidence a wheelchair was going to be required;
·
I decline to award an amount for mileage costs for community
appointments as Ms. Baptistes evidence seemed predicated on a belief
there are no resources in the community where the plaintiff lives;
·
a home assessment in the amount of $6,635 is awarded so any
future home the plaintiff has can be adjusted to accommodate his needs;
·
I decline to award an amount for a speech/language therapist
because the plaintiffs unusual speech patterns predated the accident,
according to his family doctor.
[176] Total
award for cost of future care is $1,117,181.00.
E.
Special Damages
[177] The
plaintiff has incurred a total of $117,546.31 in rehabilitation costs to date. ICBC
agrees with an award for special damages in principle but provides slightly different
calculations. The exact amount can be clarified by further submissions of
counsel.
F.
Past in trust claim for special damages
[178] At the
commencement of the trial I allowed the plaintiff to amend his pleadings to
include past in trust claims for special damages arising from care he was given
by some of his family members. While ICBC objected to the amendment, citing
amongst other things an inability to conduct examinations for discovery
concerning these claims, I determined that the timing of the application did
not prejudice the third partys ability to conduct its defence. The rules give
judges a wide discretion to allow the amendment of pleadings and I determined
there was no prejudice to ICBC in the circumstances of this case.
[179]
The principles governing in trust claims were articulated by Smith J.
(as she then was) in Bystedt v. Hay, 2001 BCSC 1735, affd 2004
BCCA 124:
[180] From a review of these authorities one can construct a
summary of the factors to be considered in the assessment of "in
trust" claims:
(a) the services provided must
replace services necessary for the care of the plaintiff as a result of a
plaintiff’s injuries;
(b) if the services are rendered by
a family member, they must be over and above what would be expected from the
family relationship (here, the normal care of an uninjured child);
(c) the maximum value of such
services is the cost of obtaining the services outside the family;
(d) where the opportunity cost to
the care-giving family member is lower than the cost of obtaining the services
independently, the court will award the lower amount;
(e) quantification should reflect
the true and reasonable value of the services performed taking into account the
time, quality and nature of those services. In this regard, the damages should
reflect the wage of a substitute caregiver. There should not be a discounting
or undervaluation of such services because of the nature of the relationship;
and,
(f) the family members providing the services need not
forego other income and there need not be payment for the services rendered.
[180] ICBCs
position is that no award should be given for the assistance Aliesha Best gave
the plaintiff because she is simply a giving person. In the alternative, it is
submitted that an award of $3,500 would be fit or approximately half of four
hours per day for 90 days at $19 per hour. As to the assistance provided by
Brenda Spafford, ICBC maintains no award is justified but in the alternative,
half of the claimed 600 hours at $19 per hour or approximately $5,500. Finally,
regarding Jason Best, ICBC submits his living arrangement with the plaintiff is
a significant benefit to him and no award should be given but in the alternative,
submits half an hour per day for about three and a half years or approximately
$12,000 at $19 per hour.
[181] The
plaintiff comes from a very supportive family. Some of the support he received
after the accident, in particular immediately after the surgery, was what would
be expected from the family relationship, but some of it was over and above
what would be expected, particularly in the case of his sister-in-law, Aliesha
Best.
[182] I find
that 50% of the time Aliesha Best spent caring for the plaintiff is compensable
under the Bystedt analysis. Had she not offered the plaintiff her
support between the accident and a few months after the surgery, he would have
required a much higher degree of paid assistance than he received.
[183] I find
that 50% of Brenda Spaffords time spent caring for the plaintiff is
compensable. She spent some time commuting back and forth between her previous
home in Penticton to care for her son and while some of the things she did for
him fell within the scope of what a mother would do for an injured adult child,
half of what she did was over and above what would be expected.
[184] Finally, I
find 25% of Jason Bests time estimate relates to caring for his brother, over
and above both their familial relationship and their mutually beneficial arrangements
as roommates.
[185] Plaintiffs
counsel provided me with three pay scales relevant to what caregivers earn,
ranging from $19 to $29.45 per hour. I find that the assistance provided by the
family members falls at the low end of that scale. Based on my findings above
and the pay scale, the total past in trust award for special damages is
$32,537.50.
G.
Summary
Non-pecuniary award | $225,000.00 |
Past wage loss | 211,480.00 |
Loss of earning capacity | 1,032,073.35 |
Cost of future care | 1,117,181.00 |
In trust special damages claim | 32,537.50 |
Special damages | 117,546.31 |
TOTAL AWARD: | $2,735,818.16 |
VI.
Costs
[186]
The parties may arrange a time to appear before me to deal with costs, taxation,
management fee and updated discount rate calculation issues.
Duncan
J.
_____________________________________
The
Honourable Madam Justice Duncan