2005 BCSC 79 Smith v. Towns

Before: The Honourable Mr. Justice Slade

Reasons for Judgment

Counsel for the Plaintiff:	Gregory Smith
Counsel for the Defendant Towns and the Defendant Patricelli:	L. Mackoff M. Dong
Date and Place of Trial/Hearing:	November 29-30, 2004 December 1-3, 6-10, 2004
	New Westminster, B.C.

I. INTRODUCTION

[1] The plaintiff, Ms Smith, was motoring along 104th Street in Surrey on November 13, 2001, when she was struck from behind by another vehicle. She sustained what were believed at the time to be soft tissue injuries. These produced soreness in the neck, right arm, and lower back. She also experienced headaches.

[2] As Ms Smith's pain persisted over the following eighteen months, she was referred to a neurologist. He found no neurological abnormalities, and concluded that she was suffering with a chronic discomfort condition as a result of soft tissue injuries.

[3] Ms Smith continued to report symptoms to her family physician, who referred her to a neurosurgeon.

[4] On December 28, 2003, before her appointment with the neurosurgeon, Ms Smith's vehicle was, once again, struck from behind by another vehicle. Her pain symptoms, which had diminished somewhat since the first accident, worsened.

[5] The neurosurgeon's consultation report, dated January 13, 2004, comments on degenerate changes revealed by an x-ray of Ms Smith's cervical spine. However, in his August 25, 2004 medical-legal report, the neurosurgeon attributed her symptoms to strained muscles and ligaments in the cervical and lumbar spine regions (i.e. soft tissue injuries) from the forces applied in the two motor vehicle accidents.

[6] On November 23, 2004, one week before commencement of the trial, another spinal x-ray was taken. In a further report dated November 29, 2004, the neurosurgeon notes further degenerative changes in the cervical spine. He attributes to the motor vehicle accidents an accelerated progression of a pre-existing, and formerly asymptomatic, degenerative disease of the spine. The November 29, 2004, report attributes her pain symptoms to nerve impingement due to spinal degeneration.

II. THE ISSUE

[7] The central issue in this case is whether Ms Smith's ongoing post-accident symptoms, as reported by her, relate to soft tissue injuries suffered in the motor vehicle accidents, or to the acceleration of a previously asymptomatic degenerative disorder of the spine.

[8] The difference is significant. If the motor vehicle accidents resulted in soft tissue injuries only, the evidence suggests that her condition has stabilized with minimal ongoing discomfort and no significant disability or, at best, an eventual full recovery. If, on the other hand, the collisions have materially contributed a process of spinal degeneration, the prognosis for recovery is much worse. In addition, the progression of the disease may necessitate corrective surgery.

III. THE EVIDENCE

The Plaintiff

[9] The plaintiff is 35 years of age. She has two children, a son aged 11 and a daughter aged 5. She and her husband separated in October 2003. The children reside primarily with her.

[10] Ms Smith completed grade 12, then attended a community college for one year. She obtained employment at a bank, and was employed as a casual worker at the time of the first motor vehicle accident in November 2001. Her primary activity was that of homemaker. Her 2001 employment income was approximately $3,300.

[11] Ms Smith was interested in training to become a hairdresser, and ultimately to work in the film industry. She had, since 1994, styled hair for female participants in wedding parties. She had done hair and makeup for approximately fifteen weddings between 1994 and 2000.

[12] Ms Smith was in generally good health up to the time of the first accident. She occasionally suffered headaches, apparently related to her menstrual cycle and changes in birth control medication. This was largely resolved around 2000. She had experienced bouts of tendonitis, apparently related to the care of her infant daughter. She had experienced occasional bouts of neck and back pain, one associated with a motor vehicle accident in 1989, also a rear end collision, another associated with pregnancy, and another, apparently activity-related, in September 1998. The 1998 episode was resolved with the assistance of massage therapy in around ten days.

[13] Ms Smith was in another accident in 1991, but suffered no injuries. It was suggested to Ms Smith that she had been in yet another motor vehicle accident in 1992. She had no recollection of this.

[14] Prior to the first motor vehicle accident, Ms Smith's primary physical activities centred on childcare, including assisting her son in a minor baseball league, and her daughter in soccer. Her adult-oriented social activities included membership in a gourmet cooking group.

[15] Immediately after the first accident, Ms Smith was unable to move the right side of her body. She was assisted by bystanders. Her sister picked her up and took her home. She regained movement in her right arm within a week. She suffered headaches, neck pain, and pain in the upper back and between the shoulder blades.

[16] On the advice of her physician, Ms Smith attended two physiotherapy sessions, then started working with a kinesiologist in January 2002. Her schedule did not permit regular attendance with the kinesiologist, who provided her with instruction on a series of exercises. She has continued these exercises ever since.

[17] Ms Smith assessed herself as fifty percent recovered as at December 28, 2003, the date of the second motor vehicle accident. Her persistent symptoms were of neck and back pain. The intensity of these pain symptoms increased in the days following the second accident.

[18] On the advice of her physician, Ms Smith continued her pre-accident activities, and has been able to do so, in moderation. She finds herself exhausted by the end of the day. She experiences frustration due to constant pain. This makes her irritable with the children.

[19] Ms Smith testified that the level and location of pain she now experiences changes from day to day. She suffers pain between the shoulder blades, in the back, and down her right leg. She does not believe that she could meet the physical demands of hairdressing, as her endurance while working at eye level with her hands is limited.

[20] Ms Smith continues her active role in her son's hockey. She also takes driving vacations with the children, generally to Osoyoos, where they camp and Sea-doo on the lake.

[21] In addition to her involvement in her children's sport activities, she attends with both of them for auditions for roles in film productions.

[22] After the November 2001 accident, Ms Smith missed a work shift scheduled for November 29. She attempted a return to work in May 2002, but left after four hours due to neck and back pain. She has not returned to work since. She agreed that she made a choice to stay home with the children.

[23] Ms Smith's right arm pain had resolved by June 2003. She had frequent headaches after the November 2001 accident. These were substantially resolved within one month. By January 2003, headaches were rare. On cross-examination, she agreed that she had no episodes of arm weakness after two months from the date of the 2001 accident.

Medical Evidence

Dr. Donnelly

[24] Dr. Donnelly has been Ms Smith's general physician since May 1993. She saw Ms Smith on November 23, 2001, and, based on her examination, diagnosed a neck strain/soft tissue injuries. She recommended neck and shoulder exercises, and prescribed anti-inflammatory and muscle relaxant medications for pain. Ms Smith reported little change in her symptoms on the eight subsequent visits between December 5, 2001 and January 27, 2003.

[25] Dr. Donnelly referred Ms Smith to Dr. Cameron, a neurologist. Dr. Cameron reported, based on his October 7, 2003 examination, his opinion that she was suffering with a chronic discomfort condition as a result of soft tissue injuries sustained at the time of the November 2001 accident.

[26] Ms Smith's symptoms persisted. In November 2003, Dr. Donnelly referred her to Dr. Hunt, a neurosurgeon.

[27] After the December 28, 2003 accident, Ms Smith attended a previously scheduled appointment with Dr. Hunt. Dr. Hunt reported on his January 13, 2004 examination. He observed significant degenerative changes in the cervical spine x-rays, and arranged for cervical and lumbar MRI scans. He agreed with Dr. Cameron that Ms Smith's problems are with the muscles, ligaments, joint capsules, and fibrous outer coating of the discs. This, in his opinion, was due to excessive stretching in the accidents.

[28] Dr. Donnelly's opinion and prognosis are set out in the following paragraphs:

Ms Smith has degenerative changes in both her cervical and lumbar spine, described in the MRI and CT results and discussed in Dr. Hunt's consultation. I think Ms Smith's degenerative disease will likely progress. Her symptoms are likely due to the accident related injuries but worse because of the underlying degenerative changes. It is not possible to determine to what degree these factors contribute to her symptoms nor to predict future problems or the effect the accident related injuries have on the underlying disease.

...

It is possible that there will be future disability, either total or partial, due to the combination of the underlying degenerative changes and the injuries sustained in the accidents. Any future accident could significantly worsen the prognosis. I cannot provide an accurate prognosis but I believe Ms Smith will have future disability because of the underlying degenerative changes and the injuries sustained in these accidents.

Dr. Cameron

[29] In his October 15, 2003 report to Dr. Donnelly, Dr. Cameron expresses the following opinion:

It is my opinion that Mrs. Smith is suffering with a chronic discomfort condition as a result of soft tissue injuries that she sustained at the time of the motor vehicle accident in November 2001. Her neurological inquiry is completely normal. …

[30] Dr. Cameron prepared a medical-legal report, as requested by counsel for Ms Smith. This report, dated September 14, 2004, was served on the defendant in accordance with the Rules of Court. The defendant gave notice that Dr. Cameron's attendance was required for cross-examination at trial.

[31] Dr. Cameron assessed Ms Smith on October 7, 2003, at which time she complained of ongoing headaches, neck pain, lower and upper back pain, and right upper extremity (arm) pain. She reported that these symptoms were prominent for a week after the accident, severe for about three to four months, then slowly improved until she plateaued. She was having some good days and some bad days. She was able to do all activities of normal living, but develops pain and discomfort. She reported feeling sixty percent back to normal, and that her main ongoing problem was right shoulder pain.

[32] Dr. Cameron's report affirms his opinion, as related to Dr. Donnelly, that Ms Smith suffered chronic discomfort and pain as a result of soft tissue injuries she sustained at the time of the November 13, 2001 accident.

[33] Dr. Cameron reassessed Ms Smith on August 24, 2004. She told him about the December 28, 2003 motor vehicle accident, and her experience of pain symptoms since that accident. She reported that her condition has plateaued, and that she continues to suffer with neck pain, occasional headaches, and right upper extremity pain. The pain is exacerbated by strenuous physical activity.

[34] Dr. Cameron was aware that Dr. Hunt, a neurosurgeon, had largely agreed with his October 2003 observations on the nature of Ms Smith's injuries. Dr. Hunt had also suggested that Ms Smith sustained a mild concussion at the time of both motor vehicle accidents. Dr. Cameron disagreed with this, as Ms Smith had been able to relate to him a complete recall of both accidents.

[35] Dr. Cameron's statement of opinion includes the following:

… It is my opinion that Ms Smith was partially disabled due to pain and discomfort, limiting her abilities to perform recreational activities and work-related activities around the house and raising her children after the first motor vehicle accident and up to the point in time of the second motor vehicle accident of December 28, 2003.

It is my opinion that Ms Smith suffered further soft tissue injuries at the time of the second motor vehicle accident of December 28, 2003, and it is my opinion that Ms Smith suffered exacerbation of preexisting pain in the neck, shoulder, and upper back at the time of the second motor vehicle accident of December 28, 2003. It is my opinion that Ms Smith continues to be partially disabled due to the ongoing pain and discomfort as a result of soft tissue injuries that she sustained at the time of the first motor vehicle accident, and which were exacerbated at the time of the second motor vehicle accident of December 28, 2003.

[36] Dr. Cameron says Ms Smith remains partially disabled due to pain and discomfort, although she is able, as of August 2004, to perform all normal activities of living, including recreational activities. He asserts that it is probable that she will continue to improve up until approximately two years following the second motor vehicle accident. It is, he says, possible that she may suffer long-term pain and discomfort to a mild degree.

[37] Defence counsel waived the requirement for Dr. Cameron's attendance for cross-examination.

Dr. Hunt

[38] Dr. Hunt examined Ms Smith on January 13, 2004, approximately two weeks after the second motor vehicle accident. She reported her ongoing neck pain prior to the second accident, and of persistent mid and low back pain. She also reported that she had, in the past four months, developed pain radiating into her right buttock and thigh.

[39] Dr. Hunt found some left side restriction in neck movement. He found no neurological abnormality in the upper or lower limbs. For the most part, he agreed with Dr. Cameron's October 2003 assessment.

[40] Dr. Hunt did, on his examination of x-rays, observe what he considered to be significant degenerative changes in Ms Smith's cervical spine. He ordered MRI scans of the cervical and lumbar spine.

[41] Dr. Hunt prepared a medical-legal report at the request of plaintiff's counsel. It is dated August 25, 2004.

[42] Dr. Hunt had examined Ms Smith on January 13 and August 17, 2004. She had also consulted with him on May 5, 2004. Dr. Hunt related that Ms Smith had reported increased discomfort between the shoulder blades over the past six months. His most recent physical examination revealed some limitation on neck rotation, and pain symptoms on neck extension.

[43] The MRI scans of the cervical and lumbar spine, as recommended by Dr. Hunt on January 13, 2004, were performed on March 16, 2004. He observed a posterior disc bulge with an associated bone spur formation at the C5/6 cervical level, on the left side, and minor degenerative changes at the C4/5 and C6/7 cervical levels. The lumbar spine MRI scan demonstrated no significant abnormalities.

[44] Dr. Hunt states that the MRI scan confirms that Ms Smith had pre-existing degenerative changes. These were more than one would expect from the motor vehicle accidents. Although he could not state with certainty the extent to which the injuries sustained in the motor vehicle accidents had contributed to the degenerative changes, he asserted a probability that some of the changes presently seen on MRI scanning and x-rays are due to forces applied to the cervical and lumbar spine at the time of the motor vehicle accidents. Dr. Hunt attributed Ms Smith's ongoing difficulties to muscle and ligamentous injuries. He recommended further MRI scanning if her symptoms continued to increase and she develops any neurological signs.

[45] Dr. Hunt says that Ms Smith's pre-existing degenerative changes made her more vulnerable to suffering adverse effects of the acute muscle and ligamentous strain of the cervical and lumbar spine from forces applied in the two motor vehicle accidents.

[46] In a further report dated October 21, 2004, Dr. Hunt reported on a further reassessment of Ms Smith, conducted October 19, 2004. He says that her condition has plateaued, and it is probable that she will continue to be restricted in her physical abilities. This, in his opinion, would preclude her from a career in hairdressing.

[47] On November 23, 2004, Ms Smith had an x-ray taken of her cervical spine. On November 24, 2004, Dr. Hunt reviewed this x-ray, and compared it to x-rays performed on December 13, 2001 and July 15, 2003. He then provided a written report to plaintiff's counsel, dated November 29, 2004, in which he expressed an opinion as to the progression of degenerative changes in the interval between 2001 and the present. He states in this report that there has been a greater degree of degenerative change than one would expect in an individual of 35 years of age. He says:

In summary, it is this writer's opinion that the motor vehicle accidents of November 13, 2001 and December 28, 2003 as well as Ms Tina Smith's previous motor vehicle accidents, have all contributed to the development of the degenerative changes of her spine which are increasing to a degree that this writer believes that it is probable that she will be faced with cervical spinal surgery in the future. The exact timing for such an event cannot be determined by this writer, as there are a number of variables involved in this type of decision-making.

[48] In his most recent opinion, Dr. Hunt stated that the bony structures of the cervical spine were encroaching on the openings through which the nerve routes pass. This affects her head and neck movements in the upward or extended direction. This affects her ability to perform everyday activities and, in particular, to work with her hands above eye level.

[49] In the course of his direct evidence, Dr. Hunt offered yet another explanation for Ms Smith's ongoing pain symptoms. He explained that the narrowing of the disc space between the vertebrae, due to Ms Smith's accelerated degenerative spinal condition, could produce inflammation in the facet joints to the anterior of the vertebrae. This will produce pain symptoms and result in physical limitations.

Dr. Clement

[50] Dr. Clement is a radiologist. His report, dated November 27, 2004, expresses an opinion on the significance of the extent of degenerative changes revealed on radiological imaging of Ms Smith's cervical spine between December 13, 2001 and November 23, 2004. These include x-rays taken December 13, 2001, July 15, 2003, November 23, 2004, a CT scan taken July 14, 2003, and an MRI taken March 16, 2004.

[51] In summary, Dr. Clement, whose particular expertise is in reading radiological imaging, found:

(1) as at December 13, 2001, slight degenerative changes were present at the C5/6 and C6/7 levels;

(2) her spine, at the C5/6 level, was unchanged as of July 14, 2003 (CT scan) and July 15, 2003 (x-ray);

(3) minimal degenerative changes had occurred at the C6/7 level between December 13, 2001 and July, 2003;

(4) it is not possible to attribute the degenerative change noted, above, to the November 13, 2001 accident;

(5) the March 16, 2004 MRI shows no change at C5/6 and mild degenerative change, identical to that shown on the July 14, 2003 CT scan, at the C6/7 level;

(6) mild to moderate neuroforaminal canal opening at level C5/6, and mild, right side, narrowing at level C6/7. The degree of narrowing is neurologically insignificant; and

(7) the lumbar spine shows as normal on the March 16, 2004 MRI image.

[52] In his concluding paragraph, Dr. Clement states that mild degenerative changes at C5/6 and C6/7 appear on examinations performed between December 2001 and November 23, 2004. Some progression between those dates is indicated at the C6/7 level. The progression is mild, and "not at all unusual even in a patient in their 30's". There is no indication that Ms Smith's degenerative changes or the mild progression of change at level C6/7 are attributable to trauma.

[53] On cross-examination, Dr. Clement testified of the absence of a strong correlation between degenerative spinal changes and pain symptoms. He agreed that the majority of women with changes of the sort observed would be asymptomatic most of the time. He also agreed that the majority of people with degenerative changes remain asymptomatic except at a very advanced age.

Dr. Griesdale

[54] Dr. Griesdale is a neurosurgeon. His clinical practice is largely concerned with the clinical assessment and operative treatment of patients with degenerative conditions of the cervical and lumbar spine.

[55] Dr. Griesdale had reviewed the radiological imaging. In his opinion, Ms Smith's cervical spine exhibited degenerative changes before the November 13, 2001 accident, which were not extraordinary for a 35 year old patient. He found no basis for a concern that Ms Smith would require surgical intervention in the future.

[56] On cross-examination, Dr. Griesdale said he did not disagree with Dr. Hunt's opinion that the motor vehicle accidents have had the effect of rendering Ms Smith's degenerative changes symptomatic. He did not, however, agree that the accidents have had the effect of accelerating the degenerative process.

[57] In Dr. Griesdale's opinion, the most probable explanation for Ms Smith's symptoms is soft tissue injuries. The degenerative disease could be a contributing factor. When asked whether mild to moderate degenerative changes in the neck, as seen in Ms Smith, can aggravate the effect of a soft tissue injury to the neck, he said this is possible.

[58] Dr. Griesdale said there is sufficient foraminal space for the nerve roots at the C5/6 and C6/7 levels. He observed no indication on the radiological imaging that the process of degeneration has been accelerated. He agreed that, given the complexity of the neck structure and the processes giving rise to pain symptoms, a possible cause of symptoms is an irritation of the facet joints.

IV. OTHER EVIDENCE

Jeff Padvaiskas: Work Capacity Evaluation

[59] A written report, authored by Mr. Padvaiskas, was entered in evidence. The report sets out Ms Smith's symptoms, and limitations on her activities, all as reported by her. She performed numerous directed tasks to enable Mr Padvaiskas to assess her dexterity, fitness, mobility, strength, and endurance.

[60] Mr Padvaiskas concluded, based on work capacity testing, that Ms Smith could meet the physical demands of her previous work at a bank. Generally, she is able to perform full time work, but has reduced suitability for work requiring sustained and prolonged sitting without weight shifting or opportunity for short breaks. She is limited in sustained above-shoulder reaching and work requiring sustained bending.

Ms Pallavi Raj Toor

[61] Ms Toor is an acquaintance of Ms Smith. She is a hairdresser, and has owned her own business since 1995.

[62] Ms Smith has been a client of Ms Toor from 1997 up to the present. Ms Toor would consider employing Ms Smith if she completed an accredited hairdressing course, obtained a licence, and was physically fit.

[63] Ms Toor testified that her employees make between $3,000 and $3,500 monthly, plus tips of between $30 and $50 each day.

[64] Ms Toor also testified of the physical demands of hairdressers' work. Most of the day is spent standing, with the hands extended to the front at around shoulder level.

V. ANALYSIS

Nature and Cause of Injuries

[65] The plaintiff's assertion that her pain symptoms are the result of spinal trauma sustained in the motor vehicle accidents has not been proven to a level of probability.

[66] Dr. Hunt's reference to facet joint irritation as an accident related cause of Ms Smith's symptoms was advanced as a possibility, not an opinion on the presence in fact of this condition.

[67] It is essential to the plaintiff's theory of causation that the evidence support some impingement of the nerve roots passing through the foraminal spaces of the cervical spine. I accept the evidence of Drs. Clement and Griesdale that the foraminal openings have not been sufficiently compromised to result in impingement on the nerve roots. Dr. Cameron found no neurological abnormalities.

[68] The evidence of Drs. Hunt, Clement and Griesdale support the plaintiff's contention that degenerative changes in her spine exceeded those which appear, on average, in women of her age.

[69] I accept that Ms Smith did not, before the first accident, have symptoms associated with a disorder of the cervical spine. I accept Dr. Clement's evidence that any observed degenerative changes between December 2001 and November 2004 are not unusual, and that these changes are not likely to produce pain symptoms.

[70] It is apparent that Ms Smith's symptoms are not the result of degenerative changes to the cervical spine.

[71] Radiological imaging revealed the loss of lordotic curvature in Ms Smith's neck, and a disc bulge at C5/6. There is no evidence that these resulted from either accident, or that they explain her symptoms.

[72] What, then, has caused Ms Smith's problems?

[73] It is Dr. Cameron's opinion that Ms Smith suffered soft tissue injuries in the November 2001 accident. She was partially disabled due to pain up to December 28, 2003, the date of the second accident. This accident resulted in further soft tissue injuries, which exacerbated her pre-existing neck, shoulder, and upper back pain. She continues to be partially disabled due to pain and discomfort as a result of these soft tissue injuries. This partial disability did not, as of August 2004, render her unable to perform any of the normal activities of living, including recreational activities. It is probable that she will be fully recovered by early 2006, two years after the second accident.

[74] As I have rejected Dr. Hunt's explanation for Ms Smith's problems, Dr. Cameron's opinion stands uncontroverted.

[75] Dr. Cameron's report settles both the question of causation of Ms Smith's injuries, and the nature of those injuries. They are soft tissue injuries, initially caused by the November 2001 accident, and aggravated by the December 2003 accident.

Loss of Earning Capacity

[76] The evidence does not establish a substantial possibility that Ms Smith's ability to earn income has been affected by her injuries. Pain symptoms associated with each accident resolved sufficiently in the ensuing three to six months to permit her full involvement in her previous activities of daily living and recreational activities. Tests conducted in the course of her work capacity evaluation, and her presentation at trial, support the contention of the defence that she is a physically fit, active, young woman. Mr Padvaiskas' concerns over her endurance, if required to work with her arms at eye level, is not a sufficient basis for finding that her ability to work as a hairdresser has been diminished. Ms Toor's demonstration of the ergonomics of working on a client's coiffure did not support the contention that continuous eye level work is required. Dr. Hunt's opinion on Ms Smith's inability to work as a hairdresser is based on his concern that she may suffer from nerve impingement or facet joint inflammation. This is not supported by the evidence.

VI. DAMAGES

Non-Pecuniary Damages

[77] Counsel for the plaintiff relied on authorities in which injuries, as found, were more severe and persistent than the injuries which I find Ms Smith sustained. These authorities include: Burnett v. Rose, [1999] B.C.J. No. 1881 (S.C.); Paller v. Paller, [2004] B.C.J. No. 1806 (S.C.); Monahan v. Nelson, [1997] B.C.J. No. 870 (S.C.); Tsang v. Vermerris, [1997] B.C.J. No. 246 (S.C.); and Brown v. Black Top Cabs Ltd, [1995] B.C.J. No. 1846 (S.C.). In these cases, non-pecuniary damages ranged from $50,000 to $100,000.

[78] The range of damages proposed by the plaintiff relate to injuries more of the nature suggested by Dr. Hunt than I have found Ms Smith suffered, based on her evidence, and the evidence of Dr. Cameron.

[79] Counsel for the defendants relied on the following cases in submissions on range of damages: Tuchscherer v. McMaster & Bruggeman, 2001 BCSC 1340; Kovacevic v. Leischner, 2000 BCSC 1492; Dowell v. Knight, 2002 BCSC 1566; Galbraith v. Marin, 2004 BCSC 671; Pennykid v. Escribano, 2004 BCSC 954; Read v. Marques, 2003 BCSC 167; Cowen v. Farmer, 2001 BCSC 1006; and Taschereau v. Scarfo, 2002 BCSC 604. The suggested range, based on these authorities, was between $10,000 and $15,000.

[80] While the injuries sustained by Ms Smith were more similar in their nature to those sustained by the plaintiffs in authorities relied on by the defence, the injuries sustained by Ms Smith were, I find, somewhat more severe and persistent than those found in the defendants' authorities.

[81] I accept Ms Smith's evidence that she sustained significant neck, upper back and right arm pain following the November 2001 accident. She also experienced frequent headaches. The arm pain and headaches were substantially resolved within a fairly short time. The neck and shoulder pain persisted, and had diminished by 50-60% when the second accident occurred in December 2003. Although Ms Smith had been cleared for a return to work in March 2002, an attempt at work in May 2002 resulted in severe discomfort.

[82] Ms Smith's persistent symptoms were made worse by the December 2003 collision. By August 2004, she was capable of performing all of her regular activities, albeit with some lingering discomfort. It is apparent that Dr. Cameron's report best describes both Ms Smith's injuries and the consequences, for her, of these injuries. I also accept Dr. Cameron's prognosis for a full recovery.

[83] I find the following authorities of greater assistance in determining the award of damages in this matter:

Campbell v. Makela, 2003 BCSC 634 ($20,000)

Accident and initial symptoms: the accident was a rear-ender that occurred Aug. 5, 2000. The vehicle was a write off. The plaintiff's immediate symptoms were headache, dizziness, shoulder pain and neck pain.

Findings at trial: the trial was held 32 months after the accident. Kirkpatrick J. found that the plaintiff had suffered a grade II whiplash. The acute phase of the injury resolved by about 50% within two months from the MVA. The plaintiff followed a conscientious exercise program. However, despite his efforts, he continues to experience flare ups of pain. Kirkpatrick J. could not conclude that the plaintiff would never fully recover. The plaintiff's continuing pain prevents him from enjoying the full range of activities he enjoyed before the accident. The activities he can do with his kids are limited, as is his ability to do household chores.

Rota v. Ross, 2002 BCSC 1761 ($30,000)

Accident and initial symptoms: accident was a rear-ender that occurred Oct. 14, 1998. Within minutes of the accident the plaintiff felt a burning sensation down her neck + headache. Initial diagnosis was a grade one whiplash. Didn't miss any work because of the accident.

Findings at trial: clear that plaintiff suffered a moderate soft tissue, whiplash type, injury that has been slow to resolve. It has caused and continues to cause pain in her left back and shoulder area, some four years since the accident. Her condition has plateaued. Some continued improvement is expected (though no finding on whether or not there will be a full recovery). Her continuing pain interferes with her activities (such as jogging, housework).

Goertzen v. Ryan, 2000 BCSC 1170 ($20,000)

Accident and initial symptoms: accident was a rear-ender that occurred July 2, 1997. Impact was substantial, caused 10K damage to def's vehicle. Plaintiff's back became progressively stiff over course of evening, by next day, she was very stiff and sore. She developed a headache that lasted several weeks. As she began to improve in her upper back, her lower back began to give her a fair bit of pain.

Findings at trial: trial was January 27, 2000, about 2½ years from MVA. There was some dispute over the plaintiff's efforts at mitigation. The plaintiff did less rehab as she started to work more as she improved. This resulted in some flare ups. The judge would not treat this as a failure to mitigate. The judge found that the plaintiff suffered a moderate whiplash with the majority of symptoms resolving within about 7.5 months post accident. Since then she had flare ups and occasional difficulty with work.

Savage v. Dore, [1998] B.C.J. No. 253 ($22,000)

Accident #1 and initial symptoms: rear-ended on June 14, 1993. She suffered immediate neck and right shoulder pain. Prior to second accident she saw her doctor 13 times and attended 27 physio appointments + 3 massage therapy. Symptoms had improved within 6 weeks, but she was not fully recovered at time of second accident.

Just before the second accident in February 1994, she had headaches 3 or 4 times a week, her arms and legs had some activity related pain, and her back and neck were 50% improved.

About 8 months later…

Accident #2 and initial symptoms: rear-ended on February 23, 1994. After this accident her back and neck stiffened right up. These symptoms lasted 8 to 12 weeks, after which her symptoms diminished to pre-second accident levels.

[84] I assess Ms Smith's non-pecuniary damages at the sum of $25,000.

Other Heads of Damages

[85] Ms Smith did not advance a claim for special damages or past loss of income. As I have found that her earning capacity was not diminished as a result of her injuries, there will be no award under that head of damages.

VII. COSTS

[86] Subject to submissions counsel may wish to make on costs, I would award the plaintiff her costs at Scale 3.

“H.A. Slade J.”
The Honourable Mr. Justice H.A. Slade

Citation:	*Smith v. Towns,*
	2005 BCSC 79