2005 BCSC 132err1.doc Wells v. Basanta et al

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for the Plaintiff	WM. R. Lambert D. Windsor
Counsel for the Defendants	G.L. Shumka
Date and Place of Trial/Hearing:	January 20 & 21, 2005
	Victoria, B.C.

[1] The plaintiff seeks damages for injuries as a result of an unusual motor vehicle accident.

[2] On March 14, 2002, the plaintiff was travelling west on McKenzie Avenue in Victoria, British Columbia, when her vehicle was struck by a sheet of gyproc construction material which had fallen from a roof top container on a van just in front of her.

[3] The plaintiff’s reaction was to brake suddenly, bringing her car to a stop from a speed she estimates at 50 kilometres per hour. There was no damage to the body of the vehicle. The plaintiff’s insurer paid for a new windshield on the basis that it may have been chipped by the gyproc. The force exerted by the gyproc striking the vehicle was not shown to have any bearing on the dynamics of the accident. The plaintiff thought the gyproc split into two pieces at the scene. The defendant testified that, in fact, only a corner of the gyproc sheet was damaged. In the aftermath of the incident, he says he loaded it back on the van for future use. He estimated his own speed at 40 kilometres per hour at the time of the incident. He was a credible witness as to both speed and the amount of damage to the gyproc.

[4] It is obvious that if such incidents ordinarily led to injury, driving would be hazardous indeed. Instead, common sense and experience suggest that such stresses are well within the physical tolerance of average men and women and occur in city traffic every day of the week.

[5] One must look then to whether or not there was a particular or latent susceptibility that led to the outcome the plaintiff describes. The plaintiff does not suggest that she was particularly vulnerable due to any ongoing physical condition or characteristic.

[6] Dr. Shannon Miller, the plaintiff’s chiropractor, testified that the plaintiff was injured because her head was turned to the right when the accident occurred. She said this made her more vulnerable to injury, and explained the mechanism of such injuries with reference to a model of a spine. The history she took from the plaintiff was as follows:

The motor vehicle accident involved Dr. Wells’ vehicle being struck in the windshield by a piece of drywall falling from the vehicle travelling in front of her. Dr. Wells reports she rapidly decelerated to a stop from travelling at 50 km/hour, her head being turned to the right at the time of impact. Dr. Wells reported that she had neck pain within one hour of the accident, and a headache that began in her suboccipital region and extended overhead to the eye.

[7] Dr. James Melling, the plaintiff’s family physician testified. He took the following history almost three weeks after the accident:

On March 14, 2002, 13:00 hours, while driving on MacKenzie Avenue in her 1990 Volkswagen Fox, Jennifer’s windshield was struck by a chunk of drywall, which flew off a vehicle driving in front of her. She slammed on the brakes when her windshield smashed and was wearing a three-point restraint. This prevented any blunt injury and she did not strike any other vehicles. She was able to stop safely. She was not injured by the drywall or any glass from her windshield. She presented first for assessment on April 4^th 2002, which was approximately three weeks after her accident.

[8] Dr. Melling went on to report:

Given that there was no physical impact with another vehicle and the very small mass of a piece of drywall relative to her vehicle it was not my feeling that this would be an injury of a prolonged nature. It is my understanding that ICBC tends to have the attitude of “no collision, no claim” I felt that it would be very difficult for her to have a successful personal injury claim against ICBC. Never the less [sic] we discussed possible actions she could take including hiring a lawyer. We parted with my encouragement for her to be active and pretend that she had not been injured.

[9] Dr. Melling’s last observation on the accident was this opinion:

Because of the above captioned accident, (although there was no collision with another vehicle) Dr. Wells experienced Grade 1 soft tissue injury to her neck, referring more to the right than left, associated with discomfort in her right upper limb. It is concluded that the injury must have resulted from her voluntary deceleration after the windshield of her VW was struck by a foreign body of about 1% the mass of her vehicle. …

[10] Dr. Melling’s report does not include reference to the plaintiff’s neck being turned to the right at the time she braked. He also was clearly given the impression of a more serious incident in which the windshield was “smashed” and glass flew about. He had no doubt that she had some stiffness when she first saw him:

Objectively, Jennifer was noted to be sitting comfortably with normal body language. I observed mild straightening of her cervical spine. There were no cuts or lacerations. It was obvious without need for detailed examination that she was experiencing mild stiffness in her neck and upper back, but no abnormalities suggesting fracture of damage to any neurological structures. Nor was there anything to suggest head injury or minor traumatic brain injury. No x-rays or other investigations were indicated. She was diagnosed with grade 1 fibroligamentous strain of her neck and upper back.

[11] He went on to observe:

In keeping with my philosophy she was encouraged to become more physically active especially to work on strength and flexibility of her neck, upper extremities and upper back. I specifically discouraged her from having passive manipulative therapy in favour of active exercise.

[12] I accept Dr. Melling’s report to the effect that when he saw the plaintiff some three weeks after the accident, she was suffering from “a strain of her neck and upper back.” It is clear, however, that he is simply accepting her word that the onset followed the incident, and in drawing a causal link. His opinion in this regard is not informed by any expertise on the dynamics of accidents but is simply a matter of inference assuming what the plaintiff says is true.

[13] Obviously, the plaintiff did not describe the mechanics of the accident to Dr. Melling in quite the same way as she described them to Dr. Miller, her chiropractor. On cross-examination, it was evident that the plaintiff’s report of having her neck turned was not a specific recollection, but a reconstruction of what “must” have happened, based on her knowledge of biomechanics. On discovery, she had said that she did not remember if she had actually turned her head.

[14] The plaintiff is a qualified chiropractor. At the time of the accident she was working as a locum at established chiropractic offices. Some months afterwards, she started her own practice. She continued to work after the accident and acknowledged that her method of practice is somewhat strenuous. She had seen a chiropractor the week before the accident for “wellness”. She had a chiropractic adjustment the day of the accident from the chiropractor in the office in which she was working. She has since had something like 60 chiropractic attendances with Dr. Miller although she acknowledges that as of the summer of 2002, these were largely for “wellness”.

[15] Dr. Melling was rather direct with the plaintiff respecting his view of the merits of passive manipulative therapy. Not surprisingly, given her occupation, the plaintiff largely ignored this advice.

[16] The plaintiff is apparently a capable, motivated professional who is making a success of her business. I do not think she was in any way attempting to deceive the court in giving her evidence, despite occasional inconsistencies. I accept that she found the event of March 14, 2002 startling, and that she believes her symptoms of pain arose on that occasion.

[17] The difficulty with this is that there is no cogent explanation for how the injuries could have occurred. While Dr. Miller described the mechanism as an “acceleration/deceleration” injury, a term normally synonymous with so-called “whiplash” injuries, the established mechanism in this case is a sudden braking in city traffic at a relatively low speed. I am unable to find on a balance of probabilities that the plaintiff’s head was turned when the accident occurred. As such, the only evidence before me is of a deceleration from perhaps 50 kilometres per hour to zero at the rate at which a car can be brought to do so by braking. There is no evidence that any external factor influenced this change in velocity. The gyproc panel that struck the vehicle was hardly damaged. It was not shown to be of a mass to materially affect the vehicle’s change in velocity. It did not “smash” the window as Dr. Melling seems to have imagined. The plaintiff did not say any part of her body struck any part of the interior of the vehicle.

[18] The plaintiff claims damages for pain and suffering and loss of enjoyment of life, income loss, and special damages relating to her treatments and travel to her treatments. The course of her recovery was described by Dr. Miller in her report as follows:

During the initial phase of her recovery, Dr. Wells made modest progress. The body positions that Dr. Wells was required to use to perform her work as a chiropractor mimicked the positions used in orthopaedic testing. This would mean that every time she placed herself in one of those positions, she would experience an increase in symptoms and aggravate her condition. This would also be true during such activities as shoulder checking while driving, carrying heavy items and some exercise positions. Attempts at an early active care program (exercise) where thwarted by an exacerbation of symptoms.

As. Dr. Wells’ headaches began to subside, she became increasingly bothered by pain in her right arm and shoulder. Modifying her body positioning to continue to minimize triggering her initial symptoms placed more stress through her shoulder. Dr. Wells experienced significant frustration with continuing to experience significant symptoms. Her tolerance to dealing with stress was reduced. Having to cope with pain on a regular basis causes fatigue, both mentally and physically. On several occasions, Dr. Wells reported having low energy. She would exhaust herself getting through an ordinary day of work.

Despite continuing to have positive physical exam findings, by October 2002, Dr Wells had begun a regular exercise routine. She was determined to get better. She had also sought out different treatment modalities including Chinese rehabilitative massage and had consulted a physiotherapist. The combination of exercise, massage, physiotherapy and chiropractic proved to be effective and Dr. Wells made slow and steady progress. By April 2003, Dr. Wells had made significant improvement. To maximize her recovery, Dr. Wells continued with a combination of therapies as she intensified her exercise routine. As time passed, she reduced the use of therapies in favour of her exercise program.

At the time of writing this report, Dr. Wells’ recovery is estimated at 95%.

PROGNOSIS

Given Dr. Wells’ youth, her excellent general health prior to this accident, and her efforts at improving her physical health, it is anticipated that Dr. Wells will achieve a full recovery. The inherent properties of soft tissue healing will leave Dr. Wells with some residual effects. (See appendix A for soft tissue injury residual effects)

SUMMARY

In March 2002, Dr. Jennifer Wells was involved in a motor vehicle accident and suffered from soft tissue injuries to her neck and upper back. She was diagnosed with a grade III cervical acceleration/deceleration injury which included facet joint irritation in the neck, nerve root compromise at C7 on the right, cervicogenic headaches, and upper back and neck segmental dysfunction. The motor vehicle accident may have been considered minor, however, due to the fact that her head was turned and she decelerated quickly, her injuries were substantial.

[19] As a result of these complaints the plaintiff claimed that an every–second–weekend visit to Vancouver to see her boyfriend had to be eliminated and that she was unable to assist her parents (with whom she lived) around the house as she had before.

[20] The plaintiff says that, while she was able to work, she feels the lost income because she had to delay starting out in business on her own by about three months, costing her a sum she calculates at about $9,000 net. She also feels her injuries reduced her ability to market her services as she would have, had she not been hurt.

[21] The plaintiff saw two massage therapists for single visits and attended a Chinese massage therapist some 38 times up to July of 2003. She saw a physiotherapist at Dr. Mellling’s suggestion and took advice about exercise. She said that she was functionally back to normal by January of 2003 though she continued to have shoulder–related pain.

[22] The plaintiff’s fiancé Bryan Sagar testified. He said she complained following the accident about headaches and neck, back and shoulder problems. He found her more withdrawn at times and said she as less active.

[23] The plaintiff has produced receipt totalling $2,981.52 for treatments and mileage.

[24] The plaintiff cites Boag v Berna 2003 B.C.S.C. 779 as authority for the preposition that slight accidents may have more than trivial consequences. In that case, Williamson, J. made the following observations at paragraphs 11 and 12:

[11] I am satisfied the accident was not as violent as it has been described by the plaintiff. The plaintiff agrees that there was very little damage to his automobile, and, as noted above, at first he did not think he was injured. The defendant deposed that the accident occurred while the two vehicles were stopped, and the defendant’s foot slipped off the brake so that his car rolled forward and struck the plaintiff’s car.

[12] I am satisfied that the motor vehicle accident could not be described as violent. However, I am aware that it is often inappropriate to equate the damages to a motor vehicle to injuries that may be sustained by occupants of that vehicle. That a piece of steel is not dented does not mean that the human occupant is not injured.

He went on to assess damages for pain and suffering and loss of enjoyment of life at $14,000. On that, and on the authority of Levasseur v Fraser 2003 B.C.S.C. 946, the plaintiff submits that her pain and suffering should be assessed similarly.

Although it is certainly true that it not possible to draw a straight line from apparent damage to injury, and that sometimes relatively minor accidents give rise to significant injuries, the accident in Boag v. Berna (supra) nevertheless involved a collision. As far back as Butler v. Blaylock Estate, [1981] B.C.J. No. 31, and again in Price v. Kostryba (1982), 70 B.C.L.R. 397 (which cited Butler) McEachern J., then the Chief Justice of this court, said:

18. I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

19. An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence -- which could be just his own evidence if the surrounding circumstances are consistent -- that his complaints of pain are true reflections of a continuing injury.

[25] The same is true for the mechanism of injury here. The plaintiff submits that Dr. Melling found the plaintiff to be believable and that the court should find that persuasive. It is clear, however, that he had a somewhat more colourful image of what occurred than was actually the case. Though there is much talk, in cases of this kind, of medical doctors’ observations that “malingering” was not detected, it must be recognized that such behaviour, labelled as such, almost never is.

[26] I do not cast aspersions on the sincerity of the plaintiff or on her fiance’s evidence. Having heard that evidence, however, I am of the view that the unusual, no-doubt alarming event of March 14, 2002 coincided with sensations of pain that afternoon that cannot, on a balance of probabilities, be found to be as a result of the accident. The plaintiff is quite obviously aware of her body and musculature and is capable of articulating, to a fine degree, what she is feeling. I think virtually every ache and pain she experienced later has been assigned to the accident. These sorts of pains can come on spontaneously, often as a result of strenuous work or exercise. I say so not as a finding, only as a way of saying that the absence of a specific explanation for the onset of the pain does not mean it was not real or experienced. On the state of the evidence, however, I would be rewarding a coincidence if I were to award damages. The evidence here is not convincing: it does not tip the balance of probabilities in the plaintiff’s favour. In the absence of evidence showing how the plaintiff could have been injured given the dynamics of the accident, she has failed to carry the burden of proof. The plaintiff’s case is accordingly dismissed.

Costs will follow the ordinary course unless counsel seek leave to make further submissions.

“T.M. McEwan, J.”
The Honourable Mr. Justice T.M. McEwan

February 11, 2005 -- Revised Judgment

On page 8, paragraph 21, the physiotherapist should read Dr. Melling.

On page 9, paragraph 24, the citation should read Boag v. Berna 2003 BCSC 779.

Citation:	*Wells v. Basanta et al.*,
	2005 BCSC 132