IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140905

Docket: M142904

Registry:
New Westminster

Between:

Donna Griffith

Plaintiff

And

Dominique I.
Larsen and Nielsen Dental Laboratory (1990) Ltd.
and Melissa A. Van Leersum and Lindsay L. Cook

Defendants

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

Introduction

[1]            
The plaintiff suffered injuries when her car was struck from behind in
three separate accidents on December 14, 2010, February 3, 2011 and September
20, 2011. None of the collisions ought to be characterized as violent. The
plaintiff described the first impact as moderate, the second as “a nudge” and
the third as moderate. Nevertheless the plaintiff complains of serious and
partially disabling injuries.

Plaintiff’s Background

[2]            
Liability for each of the accidents is admitted and the defendants
accept that the injuries have been superimposed on each other and are properly
described as indivisible. I will not devote any significant portion of these
reasons to attempting to segregate the injuries from each accident except to
the extent that I will comment on them in relation to my assessment of the
plaintiff’s credibility.

[3]            
The plaintiff is now 30 years of age. She was healthy and active prior
to the first accident, playing soft ball, golf, riding a quad and doing some
running. Before the first accident she worked as a medical office assistant at the
Surrey Mental Health and Addictions Centre. She performed administrative tasks
which made no physical demands and also pulled and replaced patients’ medical
charts using a moveable system of file storage which she described as requiring
some physical strength to operate. She describes patients’ charts as often
weighing several pounds. The plaintiff has lost some time from work which I
attribute to the effect of the accidents.

[4]            
In the first accident the plaintiff experienced symptoms typical of
those suffered in rear end collisions; namely headaches, neck pain and
stiffness, shoulder pain and lower back pain. She also experienced hip and
thigh discomfort. The hip and thigh symptoms were not long lasting but the
headaches, neck and shoulder pain and lower back pain continued up to the time
of the second accident which she testified exacerbated her neck pain. The third
accident caused exacerbation of all of her previous injuries, except for the
hip and thigh symptoms which were no longer present. In addition she describes
pain and numbness reaching into her left shoulder, left arm, and left fourth and
ring fingers.

[5]            
The accumulation of injuries has had the effect on the plaintiff’s
activities that could be expected. Restful sleep has been impaired; her
recreational activities previously enjoyed have been curtailed and her ability
to move the heavy filing cabinets and to lift patients’ charts which weigh
several pounds have been compromised. Her fellow workers have taken over some
of these heavier tasks at the request of her employer. Household chores and
grooming such as drying and straightening her hair have become difficult and
she has learned to avoid or minimize activities which aggravate her pain.

[6]            
The plaintiff also complains of thoracic outlet syndrome (“TOS”), which if
accepted as the appropriate diagnosis, would change the prognosis to one involving
far reaching consequences perhaps with surgery.

Analysis

[7]            
When symptoms of the type the plaintiff describes come before this Court
to assess the appropriate award of damages the trial judge must rely on the
plaintiff to report her symptoms accurately. The physicians or other medical
professionals who assess or treat a plaintiff in similar circumstances do not usually
conduct forensic examinations. When a patient describes symptoms without
objective signs, unless they are medically or anatomically clearly unfounded,
medical professionals normally accept the patient’s reports of symptoms as
reliable. It is for the court to conduct a critical examination of the whole of
the evidence to decide if a plaintiff’s report of symptoms ought to be accepted
as truthful and accurate.

[8]            
The plaintiff submits there are compelling reasons to believe she is
experiencing the symptoms she reports. One reason is that she has undergone “trigger
point injections” which cause considerable pain and discomfort sometimes
lasting for days. The plaintiff invites the question: why would she repeatedly
endure such pain if her symptoms were not genuine?  I agree there is substance
to that submission. The plaintiff also points out that she has taken time away
from work without pay since the accidents which it is suggested would be
inconsistent conduct for a plaintiff who improperly seeks financial
compensation. That submission is less persuasive when the evidence suggests even
before the accidents the plaintiff took unpaid time away from work. Another
indication of the plaintiff’s reliability is said to be that none of the
medical experts who have treated or assessed the plaintiff since the accidents are
skeptical of the reliability of her self-reports of injury. I do not find that
submission persuasive. The medical experts properly accepted her reports.

[9]            
The plaintiff places particular emphasis on the failure of the
defendants to lead evidence of any medical expert, including Dr. Woolfenden, a
neurologist who assessed the plaintiff on behalf of the defendants. I agree the
decision of the defendants not to call Dr. Woolfenden tends to suggest his
opinions would not have supported the defendants’ position on this assessment
of damages.

[10]        
Two friends of the plaintiff testified. Rejeanne Carron has known the
plaintiff since before the first accident and they see each other very
frequently. Prior to the first accident Ms. Carron testified the plaintiff
had no difficulty with recreational activities, although she occasionally
mentioned low back pain. The plaintiff had injuries from an earlier motor
vehicle accident from which she had substantially recovered.

[11]        
Following the first accident the plaintiff complained to Ms. Carron
of headaches, neck pain and shoulder pain and Ms. Carron observed her
rubbing her neck in apparent pain or discomfort. The plaintiff also described
to Ms. Carron a burning sensation on the left side of her neck and
shoulders.

[12]        
After the second accident, the plaintiff told Ms. Carron that she
was experiencing left arm tingling and numbness in her left hand. Ms. Carron
noticed that the plaintiff occasionally while sitting would adjust her posture
to favour her left arm.

[13]        
Ms. Carron observed the plaintiff’s recreational activities
diminished after the first accident and after the third accident diminished
further. Nevertheless the plaintiff went golfing once in 2013 without
complaints of pain. Ms. Carron concluded that after the third accident the
plaintiff’s pain became “progressively worse” and presently Ms. Carron and
the plaintiff do nothing more physically active together than walking with the
plaintiff’s dog. I have no basis to conclude Ms. Carron did not accurately
report her observations of the plaintiff.

[14]        
Lindsay Friesen worked with Surrey Mental Health and Addictions prior to
and over the period of time when the plaintiff had her three accidents. The
plaintiff’s supervisor told the plaintiff’s co-workers that the plaintiff needed
help at work to pull charts, to take them to doctors and to return them to
filing. Ms. Friesen testified that some charts could weigh up to 15 pounds
and moving them involved reaching upwards or squatting down against the filing
cabinets. Ms. Friesen could not recall when she began to help the
plaintiff in relation to any of the accidents. Like Ms. Carron she saw the
plaintiff rubbing her neck while at work and she saw her apply ice packs to her
neck.

[15]        
Ms. Friesen has had less opportunity to observe the plaintiff than
Ms. Carron but their respective recollections are consistent and I accept
Ms. Friesen’s evidence was truthful and accurate.

[16]        
Dr. Don McDonald is the plaintiff’s family doctor. He has not seen her
since August 2013. At that time he concluded she was 70% better than before the
accidents. Dr. McDonald receives regular consultation reports from Dr.
Ansel Chu, a physiatrist to whom he referred the plaintiff in 2012. Dr. McDonald
considers himself to be well informed about the plaintiff’s current condition.

[17]        
Dr. McDonald would not limit the plaintiff’s physical activities in any
way. On the contrary he would encourage her to engage in physical activities
and particularly would encourage her to exercise.

[18]        
Dr. McDonald’s evidence is not inconsistent with the plaintiff’s report
of her symptoms but he takes generally a more favourable view of her physical
capacities than the plaintiff herself does.

[19]        
Dr. D. Grover is an orthopaedic surgeon who has not treated the
plaintiff, but was requested by the plaintiff’s counsel to assess her injuries.
In a letter of opinion of March 30, 2012, Dr. Grover, like
Dr. McDonald, comments that he would not limit the plaintiff’s physical
activities because of her injuries. He reviewed a cervical spine MRI scan which
had been requested by the plaintiff’s counsel. No objective evidence of nerve
compression was revealed but his clinical examination suggested some nerve
compression which was “very subtle”. He found full range of motion in her neck
and lumbar spine but with some discomfort. Dr. Grover’s evidence is that
he could not find a “a whole lot wrong” with the plaintiff and in his report of
March 30, 2012, opined that her symptoms were likely to last up to another 24
months and they are “not likely to impair her employment opportunities”.

[20]        
In a further report written on May 10, 2014 Dr. Grover reached
entirely different conclusions on which I comment below. By that time he had
seen “new medical records” from Dr. McDonald which drew “trigger point”
injections done by Dr. Chu to his attention. Dr. Grover understands
these injections to be “pretty painful” which in Dr. Grover’s opinion
suggests the plaintiff is experiencing genuine pain from her injuries.

[21]        
I have not found Dr. Grover’s opinions assist me to assess the
plaintiff’s credibility. This is not a criticism of Dr. Grover’s approach
to the task of providing the court with a reliable opinion. However, he has
seen the plaintiff only once and he has read the clinical records. I do not
believe he has sufficient knowledge of the plaintiff’s circumstances to give
evidence that assists with answering the credibility questions which concern me.

[22]        
The defendants submit the accidents were each minor and it is not
sensible to attribute substantial injuries to such relatively minor events. The
second accident in particular is said to be trivial. The defendants submit the
plaintiff has exaggerated her level of physical and recreational activity
before the accidents and is exaggerating the extent of her pain and disability
after the accidents. I agree the second collision was trivial and I agree there
was an element of embellishment in the plaintiff’s evidence about her
recreational activities before the accidents.

[23]        
The defendants also submit that from October 11, 2011 it was not the plaintiff’s
medical advisors who were in control of her care rather the plaintiff’s counsel
has engaged in a process of shaping the medical opinions by referring the
plaintiff to physicians of his choice. It was the plaintiff’s GP who ordered an
MRI after the plaintiff’s counsel requested him to do so. Dr. Grover was
asked to assess the plaintiff even though he was not treating her and
Dr. Salvian was the plaintiff’s counsel’s choice to consider the question
of TOS and to make recommendations about future treatment.

[24]        
All these considerations have made me particularly cautious when
assessing the credibility of the plaintiff.

[25]        
I am also influenced in my view of the plaintiff’s credibility by the
evidence of the three drivers whose vehicles collided with that of the
plaintiff. Their evidence has increased my concern about the candor of the
plaintiff.

[26]        
Dominique Larsen was the driver of the vehicle which struck the
plaintiff’s vehicle on December 14, 2010. Ms. Larsen describes coming up
to a red light and stopping about four feet behind what turned out to be the
plaintiff’s vehicle. Ms. Larsen saw the red light change to green,
released the clutch on her vehicle and moved forward hitting the plaintiff’s
vehicle. The plaintiff’s evidence is that she was frightened and upset, and
remained in her vehicle waiting for the other driver to come up to speak to her
which she did not. The plaintiff then went to the other car where information
was exchanged. She then left and drove home. She could not remember if she
called the defendant Ms. Larsen “an idiot”. She remembered Ms. Larsen
had rolled her window down only about halfway and did not leave her vehicle.

[27]        
Ms. Larsen’s version of what happened after the accident is somewhat
different from that of the plaintiff. She testified the plaintiff left her car
immediately, seemed very upset, was “screaming right off the bat” and “dropped
a lot of f words”. Ms. Larsen testified she was frightened by the
plaintiff’s behaviour. She rolled her window down about three centimetres and passed
her papers out to the plaintiff. The plaintiff went to her car and came back a
few moments later “tossed in the papers” and drove off. Ms. Larsen was
shocked by the threatening conduct of the plaintiff.

[28]        
Melissa Van Leersum was the driver in the accident of February 3, 2011. She
describes the plaintiff’s vehicle as “cutting her off” and then stopping
abruptly. Ms. Van Leersum could not stop in time and her vehicle “tapped”
the plaintiff’s. She testified there was no sound of a collision. Immediately thereafter
the plaintiff left her car shouting and swearing. Ms. Van Leersum like
Ms. Larsen described herself as frightened by the plaintiff’s conduct.

[29]        
The third accident was caused by Lindsay Cook. She was driving with her
children aged 9 and 13. She stopped in heavy traffic and while looking at one
of her children removed her foot from the brake pedal and moved forward into
the plaintiff’s car. She left her car immediately to look for damage to either
of the vehicles. The plaintiff also left her car and Ms. Cook testified the
plaintiff swore at her and when Ms. Cook said “you don’t need to swear”
the plaintiff apologized. The plaintiff agreed she may have called Ms. Cook
“an idiot”. Ms. Cook was shaken by the plaintiff’s conduct.

[30]        
Ms. Cook noticed only a small black mark on the plaintiff’s vehicle’s
rear bumper which Ms. Cook attributed to an impression made by a bolt on
her license plate mounting which had contacted the bumper of the plaintiff’s
vehicle. A photograph of the rear bumper of the plaintiff’s vehicle shows that
mark but no other visible damage attributable to the contact with Ms. Cook’s
vehicle.

[31]        
I have recited the evidence of the plaintiff’s conduct after each of the
accidents to explain further why I have reservations about the reliability of
the plaintiff’s evidence generally. I believe the three defendants’
descriptions of each the accidents and accept their evidence of the threatening
response that each of them experienced from the plaintiff immediately after the
accidents. The plaintiff on the other hand was more economical with the truth.

[32]        
An assessment of credibility is made up of many factors, not all of
which are easy to describe in a manner which is convincing to someone not
present at a trial. My impression of the plaintiff is that she was somewhat prone
to exaggerate the extent of her physical activities prior to the accidents and
her current symptoms. Her reluctance to give complete and truthful answers
about her conduct towards each of the defendants, which she now may find
embarrassing, makes me wary of accepting her other evidence.

[33]        
The central controversy on this trial was the question of whether the
plaintiff has TOS.

[34]        
Dr. McDonald’s evidence is that TOS is outside his range of experience
but the MRI scan of the plaintiff’s cervical spine and thoracic outlet are normal.

[35]        
Dr. Grover relied on Dr. Chu’s records who did not testify. Dr. Grover
initially opined there was little “wrong” with the plaintiff but later accepted
the TOS diagnosis and the disabilities that may go along with it. I note that this
diagnosis is not within his expertise. Dr. Grover’s opinion on TOS is entirely
derived from that of others and does not assist me in answering the question of
whether the plaintiff suffers from TOS.

[36]        
Dr. Anthony Salvian was the principal witness on the issue of TOS. He is
a vascular surgeon with a particular interest and extensive experience with TOS.
It was put to him by Mr. Boulton for the defence that TOS is a controversial
diagnosis. Dr. Salvian was not prepared to concede that description. However,
the literature put to him by the defendants in cross-examination suggests to me
that the question of whether TOS of the type Dr. Salvian diagnosed in the
plaintiff is an appropriate diagnosis is not entirely settled within the
medical community.

[37]        
Dr. Salvian considers the plaintiff to have “severe symptoms” of TOS.
The treatment for TOS in Dr. Salvian’s experience in such cases as the
plaintiff, may be the surgical removal of a rib. He testified this is
frequently a successful treatment and relieves pain and numbness that otherwise
can be disabling. Nevertheless in a letter of opinion of April 18, 2012,
Dr. Salvian did not recommend the plaintiff have surgery “at the present
time”.

[38]        
In a further letter of opinion of October 29, 2013, Dr. Salvian
reported that the numbness and tingling in the plaintiff’s left hand “is still
present but not as frequent”. He commented that “if the plaintiff has a
reasonable quality of life and she can cope, then I would avoid surgical
intervention”.

[39]        
In his third report of December 23, 2013, Dr. Salvian concluded the
plaintiff suffers from “significant and severe thoracic outlet syndrome
involving her left arm”. Nevertheless he again did not recommend surgery but
opined “there is about a 70% chance of improving her thoracic outlet syndrome
with surgery; however this result cannot be guaranteed”.

[40]        
In Dr. Salvian’s opinion the plaintiff is “unlikely to get any
better… unless she has surgery”. Moreover, he believes “her symptoms will
deteriorate” if she continues working and attempts even a reasonable level of recreational
activities, and she will become less competitively employable.

[41]        
Dr. Salvian has formed his opinions relying heavily on the plaintiff’s
self-report of symptoms. This is not a criticism. Nevertheless, my conclusion
is that it is appropriate to be cautious when relying on these reports. It is
also my conclusion that the plaintiff, whether or not she has TOS, is gradually
improving. I do not accept her symptoms are sufficiently severe or her
disabilities so pronounced that she is likely to agree to surgery. Her evidence
is that she would seek a second opinion from that of Dr. Salvian and in my
view she will approach the question of surgery with considerable reluctance. In
my view it is more likely that there will be no surgery of the type
Dr. Salvian frequently undertakes with his patients.

[42]        
As I have mentioned, Dr. McDonald, who knows the plaintiff’s
condition, both from before and after the accidents, better than any of the
other physicians who have testified, would not restrict the plaintiff’s
activities in any way. I accept that evidence and it leads me to conclude the
plaintiff has no present significant disabilities. Nevertheless, I find the
plaintiff continues to experience symptoms, particularly from the first
accident. In my view the second and third accidents were trivial but have had an
exacerbating effect on the injuries from the first accident.

[43]        
The “common sense” approach recommended by the defendants is that
trivial collisions cause trivial injuries. That approach has superficial
plausibility but no more. As Mr. Justice Thackray observed in Gordon v.
Palmer, [1993] B.C.J. NO. 474 at para. 3:

Significant injuries can be caused
by the most casual of slips and falls. Conversely, accidents causing extensive
property damage may leave those involved unscathed. The presence and extent of
injuries are to be determined on the basis of evidence given in court.

[44]        
I find the plaintiff will have had about four years of painful but gradually
diminishing symptoms since the first accident until she recovers. I do not find
that she is feigning her symptoms but that she has overstated them. It is
likely that these symptoms will subside over the coming months, particularly if
the plaintiff becomes more physically active as Dr. McDonald recommends.

[45]        
I also believe the plaintiff has become overly absorbed by the effects
of the accidents on her life and has erroneously come to believe she is
disabled from pursuing many of her former physical recreational pursuits. This
belief is not shared by Dr. McDonald, nor is it my assessment of the
plaintiff’s condition on all of the evidence.

Non-Pecuniary General Damages

[46]        
To assist me to assess non-pecuniary general damages for pain and
suffering and loss of enjoyment of life the plaintiff relies on several cases
in which there were diagnoses of TOS. She also provided the court with several cases
in which TOS was not diagnosed but the plaintiffs had the types of symptoms
that commonly follow rear end collisions namely headaches, neck pain, shoulder
pain occasionally radiating into arms or hands and low back pain.

[47]        
The authorities relied upon by the plaintiff involving a diagnosis of
TOS are: Stapley v. Hejslet, 2006 BCCA 34; Cimino v. Kwit, 2009
BCSC 912; Gillam v. Wiebe, 2013 BCSC 565; Johal v. Meyede, 2013
BCSC 2381; and Kwong v. Leonard, 2012 BCSC 1818.

[48]        
The authorities in which there was no diagnosis of TOS and on which the
plaintiff relies are as follows: Valuck v. Challandes, 2012 BCSC 324; Power
v. Carswell, 2011 BCSC 1672; Crane v. Lee, 2011 BCSC 898; Ruscheinski
v. Biln, 2011 BCSC 1263; Whyte v. Morin, 2007 BCSC 1329; and Andrusko
v. Alexander, 2013 BCSC 985.

[49]        
I am not satisfied the plaintiff’s injuries are as serious or will be as
prolonged as those described in any of the authorities relied upon by the
plaintiff. Furthermore, as I have already mentioned I am not satisfied the
plaintiff will have surgery for TOS nor, even if she has some form of that
condition, that it will cause her difficulty for any extended period of time.

[50]        
I assess the plaintiff’s non-pecuniary general damages at the sum of
$75,000.

Special Damages

[51]        
The defendants have agreed that $3,209 in special damages should be
awarded if causation is shown. I award that sum.

Past Income Loss

[52]        
$3,350 for past income loss to the date of trial is agreed, again
depending on causation. I have some concerns that this element of the claim is
slightly exaggerated but I am prepared to award that sum.

Loss of Future Income

[53]        
I do not accept the plaintiff will continue to suffer from symptoms
which will reduce her capacity to earn income in the future. The physician who
is in the best position to assess the continuing physical effects she will
suffer from the accidents would not limit her activities. I expect the
plaintiff will miss some time from work over the next six months to one year
for reasons related to the accidents. I assess the potential loss of income over
that time at the sum of $3,000.

Cost of Future Care

[54]        
The plaintiff intends to continue with chiropractic treatments and with
trigger point injections. She submits that the cost of such treatment for five
years ought to be awarded. I agree it is reasonable for the plaintiff to
continue to have such treatments but not for the next five years. I award the
cost of such treatment for one year in the sum of $600.

Conclusion

[55]        
The plaintiff will have judgment against the defendants for $85,159. Unless
there are matters of which I am unaware the plaintiff is entitled to her costs
on Scale B.

“Mr.
Justice Affleck”