IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Montgomery v. Williamson, |
| 2015 BCSC 792 |
Date: 20150513
Docket: M147514
Registry:
New Westminster
Between:
William Bryan
Montgomery
Plaintiff
And
Brent Williamson
Defendant
Before:
The Honourable Mr. Justice Crawford
Reasons for Judgment
Counsel for Plaintiff: | J.C. Moulton |
Counsel for Defendant: | L. Hibbert |
Place and Dates of Trial: | New Westminster, B.C. December 2-5, 2014 |
Place and Date of Judgment: | New Westminster, B.C. May 13, 2015 |
I.
introduction
[1]
Mr. Montgomery was driving his 2009 Toyota Highlander over the Alex
Fraser Bridge on January 24, 2011 when he had to come to a stop for traffic in
front of him.
[2]
Unfortunately for him, Mr. Williamson was driving his truck behind Mr. Montgomery
and did not see the traffic stopping. He drove at high speed into the back of Mr. Montgomerys
vehicle, driving it forward some distance, causing some $14,000 damage to Mr. Montgomerys
vehicle, and smashing in the front of Mr. Williamsons vehicle causing it
to be a write-off.
[3]
Mr. Montgomery described a period of time where he has no
recollection, i.e. before Mr. Williamson came up and tapped on his
drivers side door.
[4]
After the various formalities were completed, rather amazingly Mr. Montgomery
was able to drive his vehicle back to his house, He took a nap but ongoing pain
caused him to go to a walk-in clinic.
[5]
The pain in his neck and back continued and not long after Mr. Montgomery
went to see Dr. Prentice who had been his family doctor since 2002.
[6]
I am satisfied Mr. Montgomery sustained severe injuries to the
soft-tissue in his upper back and neck and aggravated a pre-existing condition
in his right shoulder.
[7]
Unfortunately for him these matters have become chronic. The headaches
are now being treated by trigger-point injections, while his right shoulder was
operated on to deal with pain from arthritis which, in the view of some of the
doctors, has been accelerated by the car accident.
[8]
The defendant does not dispute that Mr. Montgomery was injured in
the car accident but says that the right shoulder injury is not related, that Mr. Montgomerys
neck injuries are not as severe as the plaintiff argues, and that his business
losses are not as great as the plaintiff argues.
A.
Mr. Montgomery – pre-accident
[9]
Several friends of Mr. Montgomery, his wife and his mother-in-law
gave evidence as did Mr. Montgomery. I do not propose to go over that at
length. I am satisfied Mr. Montgomery, who is a large and powerfully-built
man, had an active, athletic career as a young man and was a convivial and
outgoing personality which carried over into marketing and sales and eventually
the start-up of his own business.
[10]
By the time of the accident, he was married with young children with
whom he was very much involved.
[11]
He did the landscaping around his house and a substantial portion of the
housework.
[12]
He enjoyed his outdoor sports, in particular snow skiing and water
skiing, and recreational hockey where one of his friends described him as a
player in the Cam Neely mold (i.e. an aggressive forward).
[13]
He enjoyed other games and coaching his and other children.
[14]
His company had made steady ground since starting up in 2009. His wife
who is also an accountant did the books for his company and the figures put
forward as income and expenses were not disputed.
[15]
It is evident that the earnings have fallen off but not for some two
years post-accident.
B.
Mr. Montgomerys injuries
[16]
The effect on Mr. Montgomery was immediate in terms of neck and
back pain and headaches. He initially attended a walk-in clinic on two
occasions and then rather curiously while at a social event and laughing,
suddenly felt a severe pain in his neck and consequent nausea. The walk-in
clinic doctor referred Mr. Montgomery to the Peace Arch Hospital for CT
imaging to rule out any possible injury that had been overlooked, but the CT
scans came back with no findings of concern.
[17]
However, the pain and headaches led to fatigue. Mr. Montgomery soon
reduced his daily workload, taking daily naps for one to three hours for 18
months post-accident and those have continued, though less frequent.
[18]
His family doctor, Dr. Prentice referred him to physiotherapy and
then massage therapy and the treatments have continued though on a lesser basis
for almost four years.
[19]
Dr. Prentice noted there were no health issues pre-accident.
[20]
While the neck and lumbar injuries seemed to be resolving throughout
2011, late in the year, Mr. Montgomery felt something happened with his
right shoulder at physiotherapy. This eventually led to the attendance on Dr. Smit
who initially was of the opinion that the motor-vehicle accident had caused
arthritis to develop in Mr. Montgomerys right shoulder.
[21]
However, after further consideration of the fact that Mr. Montgomery
had played rugby in high school with some damage to his shoulder, and the
report of a water-skiing accident in 2008 which had led to Mr. Montgomery
seeking medical attention a year later, though without any further complaint
from Mr. Montgomery pre-accident, Dr. Smit changed his opinion to the
extent that he felt the arthritis pre-existed the car accident and the car
accident had accelerated the arthritic process.
[22]
He noted from the surgery he performed April 15, 2014, disruption of the
biceps anchor, extensive synovitis, osteoarthritis of the glenohumeral joint,
partial thickness rotator cuff tear, and extensive subacromial
bursitis of the right shoulder.
[23]
This was treated by removal of the frayed labrum,
extensive removal of the bursal tissue and the undersurface of the acromion was
smoothed.
[24]
In his later opinion, Dr. Smit felt the accident
brought on the surgery 5-10 years earlier than would have been expected i.e. a
slowed, progressive right shoulder pain and loss of function happened far more
quickly due to the accident and trauma to Mr. Montgomery.
[25]
Dr. Regan also provided an opinion. He agreed Mr. Montgomery
had sustained injury to his neck and back and that had resulted in bilateral
trapezial myofascial pain and aggravated his cervical arthritis, in turn
causing his headaches. In his written opinion Dr. Regan stated the right
shoulder osteoarthritis pre-existed the car accident and surgery would have
been required sometime in the future.
[26]
In cross-examination Dr. Regan quite fairly conceded that given Mr. Montgomery
had no shoulder difficulties for two years prior to the accident, save some
difficulty throwing a football, and made no complaint about his right shoulder
until late 2011, it was possible the soft tissue injuries to Mr. Montgomerys
upper back resulting in reduced activity by Mr. Montgomery could have
caused muscle dysfunction in the shoulder musculature, triggering Mr. Montgomerys
shoulder pain, and would have sped up the arthritic process and brought forward
the consequent surgery.
[27]
Dr. Prentice in his report dated March 28, 2012 did not find a
causal relationship between the shoulder issue and the car accident but in the
circumstances, I accept the opinion of the two other specialists that there is
a relationship between the car accident and acceleration of shoulder pain and
the remedial shoulder surgery, while keeping in mind that the osteoarthritis
and surgery would have occurred in the not so distant future. .
[28]
Dr. Prentice did agree in 2012 that Mr. Montgomerys upper
back and neck pain was chronic but he was still hopeful that there would be a
further improvement and perhaps cessation of pain.
[29]
That did not happen. Dr. Bohorquez, a specialist in physical
medicine and rehabilitation diagnosed Mr. Montgomery with myofascial pain
affecting the cervical paraspinal muscles that in turn led to cervicogenic
headaches from tight and painful cervical paraspinal muscles.
[30]
By definition he noted the condition was chronic and that had not been
cured in spite of Mr. Montgomery having multiple treatment modalities. He
doubted that Mr. Montgomery would ever be fully pain free or headache
free.
[31]
However, trigger point injections were being started and he hoped there
might be further improvement.
[32]
He stated Mr. Montgomery understood and should continue his
exercises for stretching and strengthening his cervical paraspinal muscles.
[33]
He proposed Mr. Montgomerys exercise techniques be reviewed from
time to time by a kinesiologist to ensure proper exercise techniques were being
used. As well Mr. Montgomery would benefit from massage therapy once per
month for neck pain and headache control.
[34]
He indicated the ongoing use of nortriptyline at night-time. With
respect to the trigger-point injections that had been started, he indicated
more benefit might be obtained from Botox injections but each time would cost
approximately $750.
[35]
As well, he believed Mr. Montgomery would benefit from a referral
to a multi-discipline pain clinic to help focus on activities despite the pain.
[36]
He noted the effect to Mr. Montgomery as a self-employed salesman, noting
that while neck pain and headaches were not totally disabling Mr. Montgomery,
the onset of fatigue meant loss of work and also reduced computer time.
[37]
Mr. Montgomery has a start-up interest in another company involving
computers and he stated his time working on a computer was two to four hours a
week.
[38]
Dr. Bohorquez noted Mr. Montgomerys driving and travelling
time would continue to be affected if there was not going to be further
improvement.
[39]
It was noted that Dr. Robinson had been consulted with respect to
the cervicogenic headaches but they were quite difficult to treat.
II.
plaintiffs argument
[40]
The plaintiff referred to Debou v. Besemer, [2014] B.C.J. No. 2358,
and Caroll v. Hunter, 2014 BCSC 2193 and submitted an award of $90,000
was reasonable.
[41]
As well, if the Court accepted a causal relationship between the car
accident as causing the onset of significant pain in the right shoulder
resulting remedial surgery in 2014, the award should be increased to $120,000.
III.
defendants argument
[42]
While conceding the plaintiffs neck, upper back and headache injuries
were caused by the accident, the defendant noted Mr. Montgomery referred
to his level of pain since 2013 as being a three to four out of 10, thus more
of a discomfort than excruciating pain and only a sharp pain when he was overly
strenuous.
[43]
The defendant also argued that the lack of sleep and consequent fatigue
was now caused by a recently diagnosed sleep apnea. However, there was no
medical testimony to suggest any such relationship. Arguably, the apnea issues,
being post-accident, might well be related to the upper back and neck issues. I
do find soft tissue pain caused lack of sleep and fatigue, but at trial this
was at a reduced level.
[44]
The defendant focused on the consultation report from Dr. Oliver
dated September 1, 2009 to Dr. Prentice that Mr. Montgomery had said
his right shoulder was dislocated while playing rugby in his youth and further
injured water-skiing. That report was made by Dr. Oliver who saw Mr. Montgomery
September 2009, approximately one year after the water-skiing incident.
[45]
However, Mr. Montgomery denied he had dislocated his shoulder in
his youth and stated he did not have any real problems with his shoulder, he
was playing all his sports including his hockey, and the only restriction he
had was that he was not throwing a football 100% i.e. he had a nagging
discomfort. I note throwing the football would be an overarm action.
[46]
As well, the defendant points to the fact that it took from 7-9 months
post-accident before Mr. Montgomery started experiencing significant pain
in his right shoulder. It was not reported by any of the treating medical personnel
until January 30, 2012 (Dr. Prentice).Thus the defendant says the
plaintiffs complaints of injury to the right shoulder are all based on
previous injuries unrelated to the car accident.
[47]
As well, with respect to Mr. Montgomerys depression and anxiety
which was treated by Dr. Prentice providing Celexa for some six months,
the defendant said it was not a significant issue.
[48]
In terms of enjoying his life, the defendant noted the plaintiff had
resumed playing golf (once) and had been able to play volleyball (once with his
children when evidently he injured his finger).
[49]
The defendant also noted the plaintiff had resumed some of his household
chores (none related to the heavier duties and none at all related to the
outside chores such as landscaping that he previously did).
IV.
discussion
[50]
I am satisfied that the car accident has caused a chronic, ongoing
myofascial pain to Mr. Montgomerys upper back and neck area resulting in
ongoing headaches.
[51]
I also accept the opinions of the specialists that there is a causal
relationship between the car accident and the right shoulder surgery. i.e. that
the pain and subsequent surgery was brought on some 5-10 years earlier than it
might have been.
[52]
I accept Mr. Montgomerys evidence and the evidence of his wife and
friends that the previously outgoing salesman had become far less so to the
extent that he has withdrawn from his social circle, is irritable within his
family circle and recently his wife has been suggesting counselling is needed.
[53]
It is a reasonable conclusion in the circumstances that the depressive
effect of ongoing pain and headaches and resultant loss of sleep and fatigue
has sapped the energy of the salesman who was an effective force for his
company (and for his family in 2009 and 2010 but in a lessened and diminished
fashion since that time).
[54]
In the circumstances and given the conservative forecasts of the several
doctors involved, an appropriate award is $95,000.
A.
Lost Income
[55]
In 2008 the plaintiff made $109,451 gross and $99,491 net as a regional
sales manager for a video cam manufacturing company. He decided to go to
self-employment in the same field, essential security installation work which
involved telephone calls, website sales, site visits, customer trainer, and
installation and attendance at trade shows all over western Canada but
primarily Alberta and British Columbia.
[56]
He said he worked 40 to 60 hours per week with a lot of travelling. By
the time of the accident he had approximately four large clients but was
seeking 12.
[57]
Post-accident he said the pain, fatigue, and afternoon napping meant he
was at best, working some 30 to 40 hours per week.
[58]
After the 2014 surgery, he said he was slowly accumulating more sales.
[59]
His evidence was that he had three principal customers, GPM, Sony, and Tatung
and that GPM was 45 – 50% of his 2010 sales, but eventually GPM left him in
April 2013 as his sales gradually fell from $4,500 -$5,000 to $2,000 per month.
[60]
He lost Tatung, a $500 per month customer in the fall of 2012, and Sony,
a $6,000 per month customer, in early 2013.
[61]
He attributes the loss of clients to missing trade shows and not getting
his name out in those forums as well as not being able to get around to see
customers and clients as he should. This was confirmed by the president of GPM
who gave evidence and said they tried to keep Mr. Montgomery as a sales
person until eventually the sales and customer complaints got to a situation
where they had to let him go in early 2013.
[62]
Mr. Montgomery said his sales were also helped by a larger federal
prison contract and that that kept sales somewhat buoyant through 2011 and
2012.
[63]
He agreed he had taken an interest in a start-up company in early 2013 but
that was only two to four hours per week. He acknowledged that his modest
advertising budget was far less in 2013, but said he primarily used a website
and direct contacts. He agreed that his expenses for meals went up in 2012 and
2013.
[64]
He agreed that he can still function in sales and wants to continue but
his ability had been lessened.
[65]
As well, Ms. Montgomery noted the changes that had occurred,
namely, he had never been an afternoon napper and after the problems set in
post-accident, she was having to wake him and get him out on the road.
[66]
His lack of energy and fatigue showed in their various holidays and
trips where he would not waterski or play volleyball, where before he had been
the leader. Rather he became a spectator. As well she was concerned about the
change in his personality and that he became short fused, irritable, agitated,
and did not play with the children and he was no longer the happy go lucky
person he previously was.
[67]
In her mind, there was no question the result of the injuries was also
resulting in his inability to carry on his business at his previous level.
[68]
The defendants principal arguments arise from three neatly presented
schedules showing the company income using the year end June 30 in Schedule 1,
using a calendar year approach in Schedule 2, and last a summary of personal
income tax returns using the year end, Schedule 1 the 2010 gross profit is
$30,164; 2011, $75,354; 2012, $103,204; 2013, $72,396; and 2014, $60,555.
[69]
In the years 2011, 2012, and 2013 the management fees taken were
$75,200, $85,500 and $69,000.
[70]
Some of the difficulty in attempting to see what the effect of the
injuries is the rather flat line revenues and expenses. Plainly the year 2012
is the best year, but none of it adds up to the year of earnings as postulated
with the three principal customers providing monthly income of potentially
$10,500 or $126,000 a year. There was evidence when some of the large contracts
were ended but not the starting times, thus the defendant says when one looks
at the overall figures they do not show such an extreme loss of cliental and
such an award should be modest.
[71]
The defendant also argued the sales documents had not been produced but
did not raise the issue in cross-examination of either the plaintiff or his
wife (the company accountant) and I do not accept that argument at this stage.
What I do accept is there is some lack of clarity in connecting the evident
injuries to Mr. Montgomery and the financial loss that has been arguably suffered.
[72]
Counsel argued for Mr. Montgomery that I should consider the lost
sales from the three principal customers.
[73]
As well it was argued there had been a steady growth in the first two
years by some 40% per annum and there was another way of projecting income that
would have increased for 2011, 2012, 2013, and 2014.
[74]
I do accept the general thesis that Mr. Montgomerys hours meant
that he was unable to serve customers properly, was unable to attend trade
shows, and generally keep driving with the previous force he brought to his
occupation. I accept there is evidence that his companys income do not
increase as well as it might and I do accept principal customers were lost.
[75]
The plaintiff submits that can be quantified between $139,000 –
$262,000. The defendant says those claims are not evidenced by the companys
financial records. While both arguments have some weight, the plaintiff submits
an award of $75,000 is appropriate in the circumstances.
[76]
I accept that submission as fair in light of the somewhat general
evidence. I award $75,000 for lost earnings before trial.
B.
Loss of Future Earning Capacity
[77]
The parties agree on the law that is applicable, as stated by the
British Columbia Court of Appeal in Perren v. Lalari, 2010 BCCA 140 at para. 32:
A plaintiff must always prove, as was
noted by Donald J.A. in Steward, by Bauman J. in Chang, and
by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.
[78]
I accept the medical evidence is such that Mr. Montgomerys present
abilities in his sales efforts are still some 20 – 25% less than he was
pre-accident. There is still evidence of chronic neck pain and chronic
cervicogenic headaches but some of that may be treatable and there is still
some prospect for future improvement.
[79]
On the other hand the defendant says that given the plaintiff says he
can continue to work and he has chosen to continue to work in sales, Mr. Montgomery
has failed to prove there is no real and substantial possibility that he will
incur income loss in the future.
[80]
I do not find that to be the case here. Plainly Mr. Montgomery has
ongoing neck, back, and headache problems that are chronic, and the medical
consultants are not optimistic there will be a full recovery.
[81]
I do accept that with the shoulder surgery and improved right shoulder
function and the possibility of more control of the neck and upper back
injuries, the possibility of Botox injections lessening the debilitating
effects of the headaches, that Mr. Montgomery may well regain much of his
former strength and energy.
[82]
However, there remains a real and substantial possibility that these
matters may not resolve as one may hope. Given that, the defendant says such an
award should be nominal. In light of the medical forecast, I am not so
optimistic.
[83]
I find that Mr. Montgomery is less capable overall from earning
from all types of employment. He would be less attractive or marketable to
other employers. Physically he would be less capable of other employment.
Overall he is less capable of earing income in a competitive labour market. He
has suffered a loss of his future earning capacity. Given his new venture was
in a start-up mode, a capital asset approach is appropriate.
[84]
Again, counsel for the plaintiff has put forward a submission I accept
as fair and appropriate estimate of $75,000, and I so award.
C.
Special Damages
[85]
At trial $10,292 were agreed upon. As well I accept a recent bill for
the Botox of $760.35 is appropriate.
[86]
What was in issue between the parties was the cost of an MRI that the
plaintiff obtained for $1,049. However, that did isolate issues regarding the
shoulder pain that Mr. Montgomery was complaining of, and led to earlier
surgery, and given my finding the process was accelerated by the car accident,
the expenditure was appropriate. I therefore allow the special damages in the
amount claimed of $11,052.35.
D.
Future Cost of Care
[87]
The principal costs are based on the medical evidence as to a pain
clinic, ongoing advice from a kinesiologist, psychological counselling, and
massage. To some degree these matters are interrelated; for instance, I would
not think the psychologist would be necessary if the pain clinic was attended
which would include all of the aspects of massage, psychological counselling
and kinesiology, although the kinesiologist and massage may be long term
matters.
[88]
The plaintiff submitted the costs over 10 years would be $63,000 and
about half of that for five years. As well, the Botox injections may well be an
ongoing requirement. Again, I accept plaintiffs counsel submission that
$40,000 is appropriate in the circumstances.
E.
Housekeeping
[89]
The evidence was that Ms. Montgomery and her mother pitched in to
do much of the work that Mr. Montgomery in his energetic pre-accident days
had performed around the house, which was estimated to be approximately 40% of
the housekeeping. As well, he had done all the outside landscaping and outside
work, in the house they had before the accident. The evidence was that
housekeeping costs are $25-30 per hour and the time Ms. Montgomerys
mother-in-law assisted was approximately four to eight hours per month.
[90]
In Deglow v. Uffelman, 2001 BCCA 652, the Court of Appeal
reiterated that a plaintiff may recover for loss of homemaking capacity though
no expense has been incurred for those services, referring to McTavish v.
MacGillivray, 2000 BCCA 164, para. 73.
[91]
In rough mathematical terms for some three and a half years at $25 – $35
per hour, gives a total of approximately $7,500.
[92]
In terms of assessing the future loss of home making capacity, the
principal question would be how long Mr. Montgomerys injuries will cause
him to be less effective around the house. Given the potential recovery of his
right shoulder injury, I am of the view this will be on a diminishing basis,
and taking into account the potential for Mr. Montgomery to largely
recover his abilities around the house over the next five to ten years I assess
the future loss of homemaking capacity at $5,000.
V.
Costs
[93]
The plaintiff is entitled to his costs unless there is some issue as to
same, in which case, counsel may arrange to speak to the matter before me
through trial scheduling.
The Honourable Mr. Justice Crawford