IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Rosso v. Balubal, |
| 2014 BCSC 1786 |
Date: 20140924
Docket: M122236
Registry:
Vancouver
Between:
Ryan
Keith Rosso
Plaintiff
And
Mirriam
David Balubal and
Richard Glen Kraus
Defendants
Before:
The Honourable Madam Justice S. Griffin
Reasons for Judgment
Counsel for the Plaintiff: | Stephen C.M. Yung |
Counsel for the Defendants: | Ryan W. Morasiewicz |
Place and Dates of Trial: | Vancouver, B.C. June 2-6 & 9-11, |
Place and Date of Judgment: | Vancouver, B.C. September 24, 2014 |
Introduction
[1]
At age 31, on February 28, 2011, Ryan Rosso was driving a small delivery
car in Vancouver, as part of his employment, when another driver heading in the
same direction in the lane to his left, Mirriam Balubal, changed lanes and
drove into the drivers side of his car.
[2]
It is admitted that Ms. Balubal was negligent and caused the
accident.
[3]
The larger question in this case is the extent to which the accident
caused Mr. Rosso to suffer injuries for which he should be compensated in
damages. In this regard, Mr. Rosso claims damages in all of the categories
normally addressed in cases involving personal injury: loss of future earning
capacity; past income loss; cost of future care; special damages; and
non-pecuniary damages.
[4]
There are two key issues related to causation.
[5]
One issue is the extent to which all symptoms described by Mr. Rosso
can be attributed to the accident. There is no question he suffered some soft
tissue injuries but he has reported a broad constellation of symptoms ranging
from blurry vision to tingling and loss of function in his arms and hands,
which no medical test has been able to explain.
[6]
A second causation issue is the extent to which Mr. Rossos
injuries have caused him to suffer a loss of income and future loss of earning
capacity. He advances a claim on the basis that he is permanently disabled
from work. He has not sought out employment and has not fully resumed other
activities of daily life since the accident. The question is whether this is caused
by the accident, or is it other life circumstances that have flattened him,
including the death of his best friend in August 2012 and his lack of success
in his music career?
Plaintiffs Pre-Accident History
[7]
Because there is so little medical evidence to support the full
constellation of Mr. Rossos complaints, the plaintiff relies heavily on
the temporal connection between the accident and Mr. Rossos reported
symptoms.
[8]
It is therefore very important to look carefully at the evidence of Mr. Rossos
life circumstances before the accident to compare his situation to what it was
after the accident.
[9]
As a ten-year-old child, Mr. Rosso was a passenger in his aunts
car when another vehicle struck them. Mr. Rosso could remember getting
into the car but not the accident itself. There were no medical records
produced from that time, but the evidence of Mr. Rosso and his parents
supports the conclusion that it was a serious accident and he suffered serious
injuries, including damage to his liver and spleen. Mr. Rosso may have
lost consciousness in the accident, and his mother remembers that he was
talking gibberish when she saw him in the hospital. He was hospitalized for approximately
two weeks and kept home from school for approximately one month.
[10]
The testimony of Mr. Rosso and his parents indicates that they all
believed he recovered fully from that childhood accident.
[11]
Mr. Rosso grew up in Calgary, Alberta. He started playing the
guitar at age 12. He bought his first guitar from the income he earned on a
paper route. A few years later, he worked at another part-time job and with his
earnings bought a better guitar. According to his mother, he was largely
self-taught and he learned to play the guitar very well.
[12]
Mr. Rosso is a likeable young man with an artists temperament. From
an early age, his only ambition has been to make music by playing his guitar.
[13]
Academics were not his strength or interest in high school and he needed
an extra year in order to graduate.
[14]
After Mr. Rosso graduated from high school in 1998, he had no
particular career goal outside of his music, and so went from one day job to
another as a means to the end of paying for his music ambitions and his living
expenses. He was not pursuing any line of paid employment with the goal of
advancing in a non-musical career.
[15]
Mr. Rosso formed a rock band with a friend and other people he met
through posting ads. The band had four members, including the plaintiff. They
called themselves Blue Child, wrote and performed their own music, and played
some local venues like bars and clubs.
[16]
In 2004, Mr. Rosso and the other members of Blue Child decided to
move to Vancouver in the hopes of pursuing better opportunities for the band. The
band consisted of four members, including Mr. Rosso on guitar, a bass
player, a drummer (Eric Lowerison) and a singer (Curtis Van Woerkom).
[17]
As Blue Child the band performed at various clubs and bars and other
venues in Vancouver.
[18]
The band was not making enough money to provide any income to the
members who worked at their various day jobs. The bands modest earnings, when
they were paid in money instead of beer, were put towards paying for rental of
the bands practice space, recording a CD, and some other promotional costs.
[19]
In 2009, the bands bass player left the band. A new bass player joined
the band, Eric Balana, who also had other talents such as playing the keyboard.
The band decided to start fresh under a new name, the may cause.
[20]
For approximately a year, the band practiced playing together and worked
at writing new songs. By approximately January 2010, the band started to
perform occasionally.
[21]
As before, the bands performances did not generate sufficient revenue
to do more than pay for some of the bands expenses.
[22]
The band members dreams were to someday tour together across Canada and
to become commercially successful. By January 2011, they were feeling good
about their future as a band but I find that the band had not reached any
significant turning point before Mr. Rosso had his accident in February.
[23]
There was no attempt to prove at trial that the bands dreams were
achievable. I find it very significant that no evidence was called from any
independent witness to speak to the bands talent and commercial prospects,
such as a music promoter or booking agent or even the owner or manager of a
local venue where the band performed.
[24]
Mr. Rossos employment earnings history prior
to the accident in 2011 was as follows:
a)
in 2010, he earned $22,782 as a delivery driver
for an auto parts company;
b)
in 2009, he earned $7,117 when he worked three
months as a delivery driver for a company making dental implants;
c)
in 2008, he earned $18,769 as a car washer and
auto detailer for a car company;
d)
in 2007, he earned $10,495 in a year in which he
also attended school;
e)
in 2006, he earned $1,590 from handing out a
free newspaper while going to school; and,
f)
in 2005, he earned $12,672 as a landscaper.
[25]
The two references to going to school in 2006 and 2007, above, refer to
a course that Mr. Rosso took at the Pacific Audio Visual Institute in
Vancouver. This was a one-year course to obtain certification as an audio
engineer. Mr. Rosso took the course only as a matter of personal interest
to assist him with respect to his bands future recordings, not because he
wished to obtain employment in this field. He achieved a grade of only 65%,
which was not sufficient to obtain his certificate. He also did not pursue
finding an unpaid internship, which was part of the program.
[26]
The job in 2008 involved cleaning cars at a car dealership. Mr. Rosso
hurt his back on the job and was involved in a WorkSafe BC claim in relation to
that injury. His evidence was that his back healed but he was subsequently
laid off from that job.
[27]
At the time of the accident which is the subject of this proceeding, Mr. Rosso
was employed as a delivery driver for a company that made auto parts. His
employment started in August 2009 and he was working there for approximately one
and a half years before his accident in February 2011. His starting pay was
$10.20 per hour but had increased to $11.40 per hour.
[28]
It is fair to say that neither his employer at the auto parts company nor
Mr. Rosso were enamoured of each other. At the time of the accident, Mr. Rosso
had taken a few steps towards looking for other employment with no specific
career goal in mind but nothing had come about. The evidence from his former
manager was that the company had made an internal decision to terminate Mr. Rossos
employment but this had not yet been communicated to Mr. Rosso. The
plaintiff accepts that the weight of the evidence is such that his employment
with this employer was destined to end very soon, regardless of the accident.
The Circumstances of the Accident
[29]
The accident occurred on February 28, 2011. The plaintiff was driving
the company car he used to deliver auto parts, a Pontiac Wave, in the curb lane
on a busy street in Vancouver, East 2nd Avenue, heading east. The
defendant Ms. Balubal was driving a Rav4 vehicle on East 2nd
Avenue, also heading east. She was driving in a lane parallel and to the left
of the lane in which Mr. Rosso was travelling. She decided to turn right,
and did not see Mr. Rossos vehicle, which she believes was in her blind
spot. She thus turned her vehicle right and bumped into the drivers side of Mr. Rossos
car.
[30]
Both vehicles then pulled over, and the drivers exchanged information. Mr. Rossos
car would not start up again, and so a tow truck was called for his car. After
exchanging information, Ms. Balubal was able to drive her vehicle away.
[31]
The impact of the collision was not significant enough to cause Ms. Balubals
passenger, her husband, the car owner and co-defendant, to lose his grip on a
medium-sized dog sitting in his lap.
[32]
The impact left scrape marks and some dents on the vehicles. The cost
of repair was under $4,000 for the defendants vehicle and just over $4,000 for
the plaintiffs vehicle.
[33]
The plaintiff testified that the impact of the collision left him
feeling sore and tense mostly in his shoulders and neck. He called a work superior,
Melissa Gritzuk, who came to the scene. She testified that when she got there,
the plaintiff told her he was feeling alright. She also felt that he looked alright
to her, so she left him at the scene to wait for the arrival of a tow truck,
following which he came to the office and filled out paperwork in relation to
the accident.
[34]
The plaintiff testified that being left at the accident scene to wait
for the tow truck made him angry and frustrated. He said his adrenaline was running
high. He said that when he got home that day, he was worried that he might
have a concussion because he felt disoriented, and was scared that if he fell
asleep he might not wake up.
[35]
The plaintiff was never diagnosed with a concussion, nor is there any
suggestion that the plaintiffs head made impact with any part of the car
during the collision.
Post-Accident
[36]
After moving to British Columbia, Mr. Rosso did not register for
provincial medical coverage and did not have a family doctor in British
Columbia.
[37]
Mr. Rosso first went to a clinic within a week of the accident. He
testified that he saw a doctor who he told him to take Advil and to try to
remain limber and move around as normal.
[38]
In the meantime, Mr. Rosso felt very sore and unable to return to
work. He enlisted friends and family to help him with buying groceries and
household chores such as preparing meals and doing laundry and cleaning. His
mother came out from Calgary and stayed with him for a time, providing
emotional support as well as doing household chores for him.
[39]
Eventually Mr. Rosso found a family doctor accepting new patients,
and became a patient of Dr. Barber, first seeing him on March 22, 2011. Dr. Barber
noted that Mr. Rosso had good range of motion in his neck but it was
painful; he had good range of motion in his shoulders but this caused mid-low
back pain; and he had good grip and arm strength. He diagnosed Mr. Rosso
with a soft tissue injury to the neck and back.
[40]
Dr. Barber continued to see Mr. Rosso as a patient, and
referred him to physiotherapy, massage and acupuncture.
[41]
What followed over the next couple of years were multiple visits to Dr. Barber
where Mr. Rosso reported an increasing number of fluctuating symptoms,
some of which he reported as getting worse. Dr. Barber referred him to a
number of specialists.
[42]
Mr. Rosso was also experiencing some other difficulties in his
life.
[43]
He had not returned to work at the auto parts company and felt under
financial pressure. He received some disability payments from an insurer but
these ended in May 2012 when the insurer demanded repayment on the basis that a
WorkSafe BC claim should have covered the plaintiff.
[44]
In March 2012, Mr. Rossos employer wrote to him taking the
position that he had not been performing to expectations prior to his
disability and terminated his employment on two weeks pay in lieu of notice.
[45]
At the same time, Mr. Rossos musical career was going nowhere.
In the first few months after his accident, he felt that he could not play his
guitar because of his injuries. He then tried to practice with the band but
felt that he tired out after 30 minutes, instead of the usual four-hour
practices. He felt that he could only play simpler songs, and that his arm and
hand would get numb and would tingle from playing for any extended period or
more difficult songs.
[46]
Eventually Mr. Rosso did play with his band at a few venues after
the accident. However, he was not able to contribute in the same way with
loading and unloading the musical gear. Also, his band played shorter
sessions, approximately half an hour.
[47]
The defendant hired an investigator to surreptitiously videotape Mr. Rosso
playing with his band at a venue in June 2012. The videotape confirmed that Mr. Rosso
was often shaking out his hand and arm. Before the band was playing, he moved
around and either paced or changed position from sitting or standing. The
videotape showed sessions of the band playing for approximately half an hour,
with Mr. Rosso on guitar, but no audio was recorded.
[48]
Tragically, in August 2012 the bands drummer, Eric Lowerison, was
killed in an accident. He was a close childhood friend and like a brother to Mr. Rosso.
[49]
Mr. Rosso was devastated by the death and went through extended and
extreme grieving.
[50]
After the death of Mr. Lowerison, the band discontinued altogether.
[51]
Throughout this time Mr. Rossos reports of a broad range of symptoms
resulted in Dr. Barber referring him to numerous other medical experts and
for medical investigations to assess other conditions or potential causes of
the symptoms, such as multiple sclerosis, or neurological damage. No other
medical conditions or causes of the reported symptoms were found.
[52]
Mr. Rossos reports to physicians were not always consistent with
respect to these other symptoms, and he said they can vary by the hour and day,
but over time they have multiplied and he has described them this way:
a)
migraines/headaches, with nausea;
b)
head pain;
c)
sleeplessness;
d)
driving anxiety;
e)
arm and leg stiffness;
f)
arm and hand issues, including:
i.
tingling;
ii.
complete loss of motor function in fingers, wrists and arms, when his
fingers and arms do not respond and, or go limp;
iii.
reduced strength, from his fingers to his shoulders;
iv.
loss of finger dexterity;
v.
pain, including sharp pain in wrists and hands;
vi.
strange sensations including hot and cold and pins and needles;
vii.
numbness in both hands and arms, with the numbness extending up his arm
and encompassing his cheek and face;
viii.
shaky and weakness;
ix.
shots of electricity going down arms;
g)
leg and foot issues, including:
i.
numbness and tingling from his hips to his toes on both sides;
ii.
tightness (to the point of feeling like they would snap like a twig);
iii.
toes curling downwards;
h)
numbness and tingling on his torso;
i)
panic attacks;
j)
pain all over;
k)
memory problems;
l)
concentration problems;
m)
bilateral shoulder pain;
n)
dizziness;
o)
TMJ and jaw pain and clicking;
p)
skull numbness and buzzing and physically vibrating;
q)
eye issues, including:
i.
seeing shadows or black dots in his vision;
ii.
blurry vision;
r)
ear issues, including:
i.
pain;
ii.
ringing and tinnitus (both connected to the jaw popping and otherwise);
s)
episodic choking and difficulty swallowing; and,
t)
chest pain (described as muscular and heart pain).
[53]
The many medical experts who Mr. Rosso has seen have been unable to
find any objective signs to support this broad range of symptoms, such as signs
of muscle wasting or signs of nerve damage. There has been no diagnosis of
fibromyalgia or concussion or panic disorder.
[54]
The plaintiffs mother now lives in Australia, and concerned about him,
she invited him to visit. Mr. Rosso spent time with his mother in
Australia from approximately November 2012 to February 2013. There he received
emotional support, nutritious meals and engaged in almost daily yoga sessions.
[55]
When he returned to Canada, he felt much better.
[56]
Mr. Rosso now regularly attends yoga as a form of exercise and
finds that it helps him feel better. He is still not working at any paid
employment.
Injuries Caused by the Accident
[57]
The defendants submit that Mr. Rossos injuries were short-term,
and his evidence that he has ongoing pain in his neck and back should be
rejected. In part, they say this is because the evidence regarding his other
symptoms is not believable.
[58]
In summary, Mr. Rosso was investigated by x-rays of his neck and
back; a CT scan; a MRI of his head; a bone scan and by nerve conduction
studies. All results were normal and could not explain all of his reported
symptoms. Physiatrists, neurologists and a psychiatrist saw him and none of
their medical reports attributed the broader range of symptoms reported by Mr. Rosso
to the accident.
[59]
The plaintiff said that one of his biggest complaints is feeling
disoriented and having a foggy brain.
[60]
The plaintiffs counsel referred him to a psychiatrist, Dr. Roy
OShaughnessy, for an independent psychiatric examination to determine if the
plaintiff suffered any mental disorder as a result of the injuries sustained in
the accident.
[61]
Dr. OShaughnessy saw the plaintiff on February 12, 2014 and
produced a medical report on March 3, 2014. He diagnosed the Plaintiff
with Persistent Depressive Disorder (formerly known as dysthymia). This is a
condition involving chronic low-grade levels of depression and can be
accompanied by low motivation, low energy, low drive and low effort.
[62]
Significantly, Dr. OShaughnessy was unable to provide the opinion
that the plaintiffs mental condition was probably caused by the accident.
This is because of a number of reasons that suggest other factors possibly
caused this condition:
a)
the plaintiff described his mood symptoms as not appearing until
approximately one year post-accident;
b)
the evidence does not suggest that the pain following the accident was
severe enough to have triggered a clinical depression;
c)
other factors were present in the plaintiffs life which could have
played a role, including the death of his friend in August 2012, and his
precarious financial situation;
d)
it is possible he had a closed head injury when he was in an accident as
a child, and this may be playing a role in his reported symptoms.
[63]
Dr. OShaughnessy felt that the plaintiffs mental condition may be
contributing to the plaintiff taking longer to recover from the accident, as he
has appeared unmotivated to exercise and to condition himself.
[64]
I note that if the plaintiff had this mental condition at the time of
the accident, an argument might have been made that he is a thin skull
plaintiff. This argument is based on the logic that a tortfeasor takes his
victim as he finds him and is responsible for all losses caused by the
negligent act, including any flowing from a plaintiffs particular pre-existing
vulnerability to his injuries: Athey v. Leonati, [1996] 3 S.C.R. 458 at
paras 32, 34.
[65]
However, the plaintiff did not advance the thin skull theory. This
presumably is because the evidence does not support such an argument, as according
to Dr. OShaughnessy (and the patients own reports) the full symptoms
associated with this mental condition did not show up until one year after the
accident. The plaintiff claims that everything was fine with his health
physically and mentally before the accident.
[66]
Dr. OShaughnessy noted that physical deconditioning may be
contributing to the plaintiffs pain. This latter viewpoint was shared by other
experts, including a rheumatologist, Dr. Avina-Zubieta, who saw the
plaintiff and ruled out fibromyalgia as a cause of his problems.
[67]
The fact that the plaintiff felt better after a three-month period of
practicing daily yoga in Australia from November 2012 to February 2013 does
support the conclusion that part of his problem was deconditioning and that if
he exercises regularly his pain levels will decrease.
[68]
The other symptom that the plaintiff complained causes him the most
difficulty currently is the tingling and numbness in his left hand. Because
this is the hand requiring the most dexterity when playing guitar, he finds he
is limited to playing only approximately 30 minutes a day. He says at times
his arm and hand do not work at all.
[69]
No written expert opinion was presented at trial which linked the
plaintiffs arm and hand symptoms to the accident.
[70]
One of the plaintiffs expert witnesses, Dr. Giantomaso, a
physiatrist, did say in his oral testimony that he felt that the plaintiffs
arm symptoms were linked to the neck injury as a non-neurological myofascial
referral. However, I have difficulty accepting this evidence as there was no
focus on the plaintiffs arm complaints in Dr. Giantomasos written report
and he did not seem aware of the extent to which the plaintiff testified that
he would suffer complete loss of function in his arms and hands.
[71]
Dr. Giantomasos written opinion was that his diagnosis of the
plaintiff was chronic pain temporally and causally related to a February 28,
2011 motor vehicle collision including the following issues:
Diagnoses Likely Causally Related to the Motor Vehicle
Collision of February 28, 2011:
1. Posttraumatic
cervical sprain-strain injury consistent with a WAD-II injury. Chronic.
2. Thoracic
sprain-strain injury grade 1-2. Chronic.
3. Lumbar sprain-strain injury grade
1-2. Chronic.
[72]
The reference to WAD is to Whiplash Associated Disorder.
[73]
In reviewing the plaintiffs history, Dr. Giantomaso noted that Mr. Rosso
told him that after the accident Mr. Rosso noticed tingling in the arms. This
is consistent with Dr. Barbers medical records as well.
[74]
However, in terms of Mr. Rossos present functional history, the
complaints noted by Dr. Giantomaso in his written report had to do with
neck and back pain and there were no complaints noted with respect to the
plaintiffs arms and hands, including in connection with playing the guitar.
[75]
Also, Dr. Giantomasos physical examination of the plaintiff did
not reproduce any of the arm or hand complaints.
[76]
Thus there was nothing said in Dr. Giantomasos report regarding Mr. Rossos
arm complaints being caused by the accident.
[77]
Another possible explanation for the plaintiffs hand tingling is carpal
tunnel syndrome, arising from his guitar playing, however, this has not been
diagnosed.
[78]
Further, as noted, the plaintiffs evidence about his arm and hand
symptoms went beyond tingling and numbness to complete loss of function. There
is no physical explanation for this in any of the evidence. None of the
medical tests found any decreased grip strength or other signs that might
support a physical cause for this reported symptom.
[79]
As stated by Dr. OShaughnessy after reviewing the medical records,
the plaintiff:
has
presented with a rather unusual number of symptoms and there has never been any
clear physical basis found to support them. Specifically, Dr. Keyes
did a thorough neurological examination to rule out any neuropathy or carpal
tunnel syndrome. All investigations have been negative. In review of the
physical findings by a number of doctors, there have never been any objective
findings noted save for his complaints of pain and stiffness. I am assuming
from my colleagues opinions that basically there has not been any structural
damage noted and that his symptoms are simply soft tissue injury in nature.
[Emphasis
added.]
[80]
As already noted, Dr. OShaughnessy diagnosed the plaintiff with a psychological
condition that is not shown to be caused by the accident.
a)
loss of hearing;
b)
eyes jerk from side to side;
c)
dizziness from watching TV;
d)
electrical pain in face;
e)
eyelids droop involuntarily;
f)
muscles in arms or legs twitch involuntarily;
g)
feeling pins and needles all over his body;
h)
fingers tremble very rapidly;
i)
double vision;
j)
suddenly and involuntarily falling asleep in the middle of the day;
k)
body (arms, legs, torso, or head) jerk involuntarily;
l)
problems reading;
m)
problems swallowing;
n)
arms/hands suddenly go limp.
[82]
On the same questionnaire, Mr. Rosso reported experiencing either
monthly, or at least once in the past year, the following symptoms:
a)
vertigo;
b)
flickering lights or spots in his vision (but no halos of lights around
objects);
c)
dropping things;
d)
feeling insects crawling on his skin;
e)
uncomfortable pressure in his ears;
f)
people tell him about something he said or did and he cannot remember it
at all;
g)
he cannot remember the names of family members or friends;
h)
trouble buttoning his shirt or turning keys in locks;
i)
sharp pain behind his eyes;
j)
seeing spiders in his visual field;
k)
falling for no reason;
l)
warm intense pain radiating down his arms;
m)
his lungs and/or eyes react strongly to odours;
n)
slurring his words;
o)
touching certain fibres makes his skin tingle;
p)
bright light gives him headaches;
q)
he speaks so softly others cannot hear him; and,
r)
drooling unintentionally.
[83]
Mr. Rossos answers to this questionnaire indicate that he is very
suggestible when it comes to thinking he has something wrong with him. No
physician was able to explain these symptoms as associated with Mr. Rossos
car accident.
[84]
Dr. Koch explained that he had some concerns about the validity of Mr. Rossos
self-reports. For example, Mr. Rosso reported some symptoms in a way
similar to people who have a chronic pain disorder or panic disorder, but he
did so in an atypical way. Other people with these disorders can identify when
they last had a severe attack or what they think might trigger a severe attack
or pain episode, whereas Mr. Rosso could not do so.
[85]
The plaintiff made some criticism of Dr. Kochs report. One
criticism is that Dr. Koch said that he watched the surveillance video of Mr. Rosso,
but that there were no overt pain behaviours on that video. The video was
played in court, and some behaviours by Mr. Rosso were consistent with him
having some discomfort, such as shaking out his hands, pacing, and fidgeting,
although I must say these behaviours could also be consistent with someone who
is nervous about playing before an audience.
[86]
Overall, I found Dr. Kochs analysis of the plaintiff quite
helpful. He was unable to identify any specific health conditions on the part
of the plaintiff.
[87]
The defendants also called opinion evidence from Dr. N. Reebye, a
physiatrist who examined Mr. Rosso on January 23, 2014, reviewed the medical
records and provided a report dated March 5, 214. His opinion was that the
plaintiff suffered mild-to-moderate soft tissue injuries as a result of the accident,
but no loss of function. I also found this opinion consistent with the force
of the evidence.
Conclusion on Injuries Caused by the Accident
[88]
The medical evidence does not explain the long list of the plaintiffs
reported health problems since the accident. While pain is subjective and
cannot be measured on a test, the plaintiffs reported problems have extended
well beyond pain.
[89]
The plaintiff has been through a battery of tests and no physician has
found any physical problem explaining all of the diverse symptoms he reports. Several
physicians suggest that the constellation of symptoms could indicate a
neurological problem, but that has been ruled out.
[90]
Likewise, no physician has concluded that the plaintiff suffers from a
psychological condition caused by the accident that would explain all of his
symptoms.
[91]
The overall impression I formed of the plaintiffs evidence, after
considering it in the context of the whole of the evidence and particularly the
medical evidence, was that he tended to think very negatively and to have an
exaggerated view of his physical limitations and symptoms following the
accident.
[92]
I therefore unfortunately find that Mr. Rossos perception of his
abilities, or rather disabilities, is unreliable.
[93]
I agree with the defendants that there is no credible or reliable
evidence to support a conclusion that the accident caused the broader range of
symptoms reported by Mr. Rosso.
[94]
Despite this, I do accept the plaintiffs evidence that he has continued
to experience some neck and back pain since the accident. There is abundant
medical evidence which supports the conclusion that Mr. Rosso suffered
some soft tissue injuries as a result of the accident and I so find. I accept
the conclusion of the majority of the medical experts that if the pain has not
gone away by now, it is likely he will continue to experience some ongoing pain
in the future.
[95]
Physicians who have tested Mr. Rosso by palpation and range of
motion exercises do not support a conclusion that the pain is more than mild to
moderate. For example, Dr. Giantomaso stated in his report:
Palpatory
pain was elicited with deep palpation at L4 and L5-S1 only. He had mild
hypertonicity and mild pain to palpation in the lower cervical spine and
thoracolumbar junction.
range of motion was excellent in the cervical,
thoracic and lumbar spine.
[Emphasis
added.]
[96]
I am persuaded that the residual pain in Mr. Rossos neck and back
is relatively mild and that it can be managed with regular exercise.
[97]
The medical experts recommended that Mr. Rosso exercise and resume
normal activities of life. Once he went to stay with his mother in Australia
in late 2012 and began to exercise daily, he began to improve and cope better
with his pain.
[98]
It seems likely that just before the accident occurred, Mr. Rosso was
moderately dissatisfied with his life or at least not enthusiastic: he was in his
thirties, employed at a low-skilled job he did not like and his music career
was flat and despite years of trying, he had not made it as a commercially
successful rock musician. When the accident occurred, he was not sufficiently
motivated to find other interests and so it is likely that he focussed more and
more on his pain and he began to perceive more and more limitations. Once his
close friend and bandmate died in August 2012, his negativity increased and he had
little energy or motivation to try to get better.
[99]
I am persuaded on the totality of the evidence that the motor vehicle
accident caused the plaintiff to suffer ongoing symptoms of mild neck and back
pain, which are symptoms likely to continue into the future to some extent but
which can be managed with regular exercise. The evidence also supports the
conclusion that immediately after the accident for a short period the plaintiff
did have some associated minor headaches and anxiety in relation to driving
which was caused by the accident.
[100] I am not
persuaded that the plaintiff suffered any other injuries as a result of the
accident.
Damages
[101] I turn now
to consider the plaintiffs claims of damages.
Future Loss of Earning Capacity
[102] The
plaintiff claims he has been unable to work since the accident and is
unemployable into the future.
[103] The
evidence does not support the conclusion that the injuries caused by the
accident made the plaintiff unemployable.
[104] The
plaintiffs evidence is that he is uncomfortable staying in one position for a
long period of time, whether standing or sitting. I have already concluded
that the plaintiffs self-perception of his limitations is inflated and
unreliable.
[105] When John
Lawless, a vocational consultant hired by his lawyer interviewed him, the
plaintiff rejected the idea of vocational consulting. I am not satisfied that
employment is closed to the plaintiff simply because he might need to shift
around and change positions when working.
[106]
Dr. Giantomaso necessarily relied on Mr. Rossos own reports
as to how significant is his pain. But even relying on Mr. Rossos
self-reports, Dr. Giantomaso made this recommendation:
Ryan continues to experience
significant pain with sitting. A vocational assessment and some direction in
regards to future employability may be helpful. If he is able to get a
sedentary position that does not require driving, a sit-stand workstation and
time for frequent breaks would likely increase his chance for competitive
employment and capacity and tolerance for full-time work.
[107] Dr. Giantomaso
did not suggest that Mr. Rosso was unemployable or even limited in his
work in the future, but rather, recommended he have a vocational assessment.
It is significant that Mr. Rosso has not done so.
[108] Dr.
Reebyes opinion was that there were no physical contraindications for the
plaintiff to return to employment. Dr. Reebye felt that normalization of the
plaintiffs lifestyle would help resolve some of his symptoms.
[109] The
plaintiff complained to Mr. Lawless that he cannot read much or use a
computer for long periods because of his blurred vision and headaches. I have
not found that the accident caused Mr. Rosso to suffer blurred vision and
a long-term problem with headaches. If these problems are keeping him from
working, they are not caused by the accident.
[110] The
plaintiff also complained to Mr. Lawless that his injuries have prevented
him from pursuing his dream of becoming a commercially successful musician.
[111] The
plaintiff complained that lifting the guitar causes him neck and back pain. I
accept there may initially have been some limitations in his guitar playing
caused by these injuries but I am unpersuaded that the plaintiff made
sufficient efforts to carry on with his music in a way that could address his
neck and back pain. For example, there was no evidence that he tried to shift positions
while playing, from standing or leaning on a stool to sitting. The plaintiffs
main complaint regarding his inability to play the guitar had to do with his evidence
that his hands go numb and sometimes do not function at all. I have found that
these issues were not caused by the accident.
[112] Vexing the
analysis in this case is the fact that the plaintiff is someone that some of
the medical professionals describe as having low motivation. I find that is an
accurate description of a personality characteristic that pre-dated the
accident.
[113] Not
everyone needs to be ambitious in the sense of wanting to achieve financial
success. The plaintiffs pre-accident history suggests that he has never been
highly motivated in the sense of being someone who wants to invest much time or
effort in a career or in any other interest other than playing the guitar.
[114] It was
clear from the evidence of the two band members who testified, Mr. Van
Woerkem and Eric Balana, that they get much enjoyment from playing and
performing music. They are willing to work long term in the restaurant
industry in order to pay their bills so they can pursue this passion. I have
great respect for this choice. Indeed, I admire the sacrifice and the passion
for ones art that goes into being an artist.
[115] One question
is whether the accident caused Mr. Rosso a loss of future earning capacity
in the music industry. To award damages on this basis, there must have been a
real and substantial possibility he would have earned income in that career,
which is now foreclosed to him because of the injuries caused by the accident:
Perren v. Lalari, 2010 BCCA 140 at paras. 25-32.
[116] There is
no evidence to establish any realistic possibility that but for the accident the
plaintiff would have reached commercial success as a musical artist. There is
no independent witness who testified that his musical talent or other
characteristics such as charisma or stage presence were such that there was a
real possibility he would in the future be able to make some kind of living
from performing his music. He had not achieved a measurable level of
commercial success as a musician by the age of 31, despite years of trying. I
find that absent the accident, Mr. Rossos musical endeavours were not a realistic
possible source of future net income.
[117] Another
question is whether the accident caused Mr. Rosso a loss of earning
capacity generally. On the whole of the evidence, I conclude that the
plaintiffs injuries caused by the accident do not prevent him from working.
[118] Mr. Rosso
was an adult with a sufficient history before the accident to enable us to
predict what his likely future would have been. Even without the accident, I
find that Mr. Rosso would likely have remained a person earning
entry-level pay at a low skilled job, and who would not stay with any one job
for a long time, and who would focus on his artistic interests to giving him
life satisfaction. I find that before the accident, he had a consistent lack
of enthusiasm for his choices of paid employment and this is reflected in the
fact that his past employment history was spotted with periods of unemployment.
His lack of enthusiasm for paid employment was likely to continue and the
occasional period of unemployment was likely to occur in the future as well,
and I find no realistic possibility his employment future would have been
otherwise.
[119] In short,
there is no evidence to suggest any realistic possibility that but for the
accident, in the future Mr. Rossos employment history would have changed from
what he was doing: working a series of low skilled jobs, never staying with one
for any length of time.
[120] Noting Mr. Rossos
lack of enthusiasm for paid work is not a moral judgment. There is much to be
admired about an artists pursuit of his form of art. It is simply a fact that
Mr. Rosso has never been motivated by and has not put much energy into
paid employment. Instead, he has been content to play the guitar as his
passion, regardless of this not being commercially lucrative.
[121]
In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown],
the Court cited the Supreme Court of Canada case of Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229 for the proposition that loss of
earning capacity is the loss of a capital asset, requiring the court to
consider the accident victims earning prospects and potential prior to the accident.
As held by Finch J. as he then was in Brown at para. 8:
The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:
1. the plaintiff has been rendered
less capable overall from earning income from all types of employment;
2. the plaintiff is less marketable
or attractive as an employee to potential employers;
3. the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and
4. the plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.
[122] In Brown,
the Court held that the plaintiffs future outlook was uncertain, but that the
plaintiffs knee pain did diminish his capital asset, namely his worth as a
worker. The Court awarded the plaintiff the rough equivalent of one years
income at his prior employment as a truck driver.
[123] While I do
not find that the accident-related injuries will prevent the plaintiff from
participating in paid employment, I must consider the possibility that working
at a job that involves driving a car might be foreclosed to Mr. Rosso due
to his injuries, or even a job that involves hard physical labour.
Mr. Rossos description of his pain with prolonged sitting, if accepted,
could foreclose these types of jobs.
[124] While I do
not consider that Mr. Rossos neck and back pain is as debilitating as he
suggests, I do accept that it could make him uncomfortable with prolonged
periods of sitting. This means that his injuries caused by the accident have
impaired the capital asset that is his earning capacity.
[125] I therefore
find that there is a reasonable possibility he could have found other work as a
delivery driver, given his experience in this work, prior to the accident, or
more physical work, and that his neck and back pain caused by the accident has either
foreclosed or diminished this possibility. This means that he has lost the
ability to take advantage of all job opportunities that might have otherwise
been open to him, and he has suffered a loss of future earning capacity.
[126] I am
unable to place a high value on this loss.
[127] The
evidence does not satisfy me that the neck and back injuries sustained in the
accident were of a nature as to prevent Mr. Rosso from being able to work
at an entry-level low-skilled job paying just as much as he could have earned
absent the accident. I also am of the view that regardless of the accident, he
would not have stayed with any one job for a long period, and so would not have
earned multiple wage increases, and may have had some periods of unemployment.
[128] If the job
market is such that there are many entry level positions available, Mr. Rosso
may not suffer an economic loss in the future. However, if the job market is
such that there are limited positions available, he could suffer a loss because
of his more limited choices and his inability to build on his experience as a
delivery driver due to his injuries.
[129] Considering
the above contingent but real possibilities, I assess the plaintiffs loss of
future earning capacity as equivalent to one years income earned by him as a
delivery driver, in the year prior to the accident, which I will round up to
$23,000.
Past Loss of Income
[130] As for
past loss of income, I accept that the plaintiff may have needed some time post-accident
to pursue therapies and exercise so as to best recover from his injuries. His
job driving a car delivering auto parts required some prolonged sitting, and
occasional lifting of heavy objects. It is realistic to conclude that the
plaintiff would not be able to immediately return to that employment pending
some time for therapies and that once he made an effort to return, he would
have been fired (as he was) and so would have needed to seek out alternative
employment (which was his plan before the accident).
[131] I conclude
that but for his injuries, the plaintiff would have been capable of continuing
on with his employment at the auto parts company until his employer followed
through on its decision to terminate his employment. The plaintiffs former
manager at that employer testified at trial, Mr. John Salter. His
evidence was that in January 2011, before the car accident, the decision had
been made to terminate Mr. Rossos employment. The manager then took his
own disability leave for two weeks, in early February 2011. When the car
accident occurred and the plaintiff was recovering and on disability insurance,
the decision to terminate his employment was deferred until he gave notice of
an interest in returning to work.
[132] Thus, but
for the car accident, the plaintiff likely would have suffered a loss of
employment earlier than he did, at least by March 2011 instead of March 2012.
Equally, but for the accident, once he lost his job for other reasons, the
plaintiff would have been out of work for a period while he pursued alternate
employment. It is difficult to know how long he would have been unemployed
since he had not found alternative work before the accident, despite wanting to
leave his employment.
[133] Nevertheless,
had the plaintiff been terminated, absent the accident there is a reasonable
possibility this would have made him more motivated to find replacement work.
[134] I find
that there is a substantial possibility that but for the accident, the
plaintiff would have been terminated from his employment in March 2011, given
two weeks severance in lieu of notice, and then would have been able to find
another job paying at least an equivalent income during that two-week period
and carried on with that new employment. In other words, but for the accident,
he would not have suffered a past loss of income even if fired from his job as
an auto parts delivery driver.
[135] I conclude
that due to the accident the plaintiff suffered a past loss of income
equivalent to what he was earning at his employment as of the date of the
accident, for a reasonable period of time to allow him to recover from his
injuries. There is very little evidence on which to base a reasonable estimate
of this period of time, given the plaintiffs unreliable perception of his
inabilities. However, I note that after a three-month period of daily exercise
with the assistance of his mother, from November 2012 to February 2013, he
improved significantly.
[136] I find it
reasonable to assume that the plaintiffs injuries would have been in a more
acute phase right after the accident as compared to in November 2012, and that
he would need three times as much time to recover as the three months he later
spent with his mother. I estimate that he would have needed approximately nine
months of therapy and exercise to recover sufficiently from his injuries to
pursue and obtain paid employment.
[137] I
conclude that the plaintiff suffered a past wage loss equivalent to nine months
of income, at the same income level as he was earning at the time of his
accident.
[138] The
parties have the figures from which they ought to be able to calculate and
agree on this loss for which the disability insurer has a subrogated claim. If
they are unable to reach agreement, they may seek a further hearing before me.
Cost of Future Care
[139] The
evidence does not support a claim that the injuries caused by the accident will
cause the plaintiff to incur costs of future care, other than cost to attend
yoga.
[140] The
evidence does persuade me that participation in yoga has proven the most
effective treatment for Mr. Rossos neck and back pain, and that in order
to maximize his ability to perform other daily functions including paid work,
he will need to continue to practice yoga.
[141] The
defendants argue that Mr. Rosso can practice yoga at home. This is true,
in part, but overlooks the benefit of being instructed by a trained yoga
professional, at least on occasion.
[142] I must
also take into account the contingency that but for the accident the plaintiff
would have pursued yoga classes in any event, given that his mother practices
yoga as a form of healthy lifestyle, as does his brother who is a yoga
teacher. I also take into account the possibility that given the plaintiffs
personality and low level of motivation, he could eventually drop out of
practicing yoga.
[143] The
evidence is thin but considering the various contingencies I assess damages for
the future cost of yoga classes, as a form of treatment necessitated by the injuries
caused by the accident, at $10,000.
Special Damages
[144] The
plaintiff claims $3,647.50 as special damages, for a list of items including
physiotherapy, massage therapy, acupuncture, BC transit passes, some
medications (muscle relaxants), and a $47 gym membership.
[145] The
defendants say only $1,000 is a reasonable assessment of special damages. They
point out that the plaintiff needed a transit pass in any event since he did
not have a car pre-accident; and some of the treatments were because of his
constellation of symptoms that were not caused by the accident; and some were
not recommended by physicians (such as osteopathy).
[146] I find
that it was reasonable and necessary for the plaintiff to seek out relief from
neck and back pain by pursuing some physiotherapy and acupuncture treatments,
but the defendants criticisms with respect to the entire special damages claim
are well-founded.
[147] I assess
the plaintiffs special damages as $1,000.
Non-Pecuniary Damages
[148] I have
found that the plaintiff did suffer neck and back pain caused by the accident,
and this is likely to continue at a minor or moderate level into the future.
[149] Non-pecuniary
damages are awarded to take into account the non-economic impacts an accident
can have on someones enjoyment of life, including on such things as their
relationships, lifestyle, and recreational activities, taking into account the
persons age and the nature of the injuries, as canvassed in Stapley v.
Hejslet, 2006 BCCA 34.
[150] It is
difficult to untangle the factors that have negatively impacted on Mr. Rossos
enjoyment of life since the accident so as to focus only on those caused by the
accident.
[151] There is
no doubt that the plaintiffs biggest enjoyment in life, pre-accident, came
from playing his guitar.
[152] I accept
the plaintiffs evidence that he suffered more discomfort immediately after the
accident than he does now, but that his neck and back pain continues to
negatively affect his guitar playing to some extent.
[153] However,
the plaintiff also complains that his arm and hand problems negatively affect
his guitar playing. I have found these ongoing symptoms were not caused by the
accident.
[154] The
plaintiffs enjoyment of life has been negatively affected by other
circumstances in his life, leading to a psychological condition diagnosed by Dr. OShaughnessy
as Persistent Depressive Disorder. I have concluded that this condition was
not caused by the accident.
[155] I find
that the accident caused Mr. Rosso some loss of enjoyment of life which
will continue in the future, as he will likely experience ongoing mild neck and
back pain. This probably has interfered with his sleep to some extent in the past,
and initially caused some headaches and fear around driving.
[156] If Mr. Rosso
attends yoga and finds other life interests including paid work and some form
of artistic outlet, he is likely to increase his enjoyment of life. He has
been awarded damages to compensate him for attending yoga and so it is
important not to duplicate these damages under this heading.
[157] I have
considered the range of non-pecuniary damages in a number of other cases where
the injuries are modest, such as in Pond v. Bucsis, 2013 BCSC 2001 where
$30,000 was assessed as an appropriate award for mild soft tissue injury to the
plaintiffs neck. The pain was not severe but was likely chronic and had some
modest impact on her recreational activities. In that case, the award was then
reduced by 30% for failure to mitigate.
[158] Here I
find that the injuries are minor and have had a minor impact on Mr. Rossos
life, especially in comparison to other circumstances in his life, such as the
death of a close friend and his inability to become a commercially successful
rock musician. I conclude that a fair and reasonable assessment of
non-pecuniary damages is $20,000.
Conclusions
[159] I have
found that the plaintiff has suffered from some mild ongoing neck and back pain
due to the accident.
[160] I do not find
that the plaintiffs injuries caused by the accident are so severe that they
prevent him from working.
[161]
I have assessed the plaintiffs damages as follows:
a)
damages for loss of future earning capacity in the amount of $23,000;
b)
past income loss equivalent to nine months of income, at the same income
level as he was earning at the time of his accident. If the parties are unable
to agree on this number, they have liberty to re-appear before me;
c)
cost of future care for yoga classes in the amount of $10,000;
d)
special damages of $1,000; and,
e)
non-pecuniary damages of $20,000.
[162] Costs will
be awarded to the plaintiff unless there are issues impacting costs which the
parties seek to draw to my attention.
[163] I commend
both counsel for their helpful submissions.
S.A. Griffin, J.
The Honourable Madam Justice Susan A. Griffin