IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Houghton v. Zalesky, |
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2008 BCSC 335 |
Date: 20080221
Docket: M088184
Registry: New Westminster
Between:
Camille
Elizabeth Hannah Houghton,
Matthew David Christopher Houghton, and
Geoffrey Glenn Douglas Houghton,
infants by their litigation guardian,
Tara Houghton, and the said Tara Houghton
Plaintiffs
And
Paul
Steffan Zalesky, Allwest Insurance Services Ltd. (Lessee),
Daimlerchrysler Services Canada Inc./Services Daimlerchrysler Canada Inc.
(Lessor), and Nissan Canada Inc.
Defendants
Before: The Honourable Mr. Justice Wong
Oral Reasons for Judgment
February 21, 2008
| Counsel for the Plaintiffs: |
T.E. Sprague |
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| Counsel for the Defendants: |
D.C. Fong |
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Place of Trial: |
New Westminster, B.C. |
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INTRODUCTION
[1] THE COURT: Judgment. This is a motor vehicle accident personal injury claim. Liability and quantum of damages are both in issue.
[2] The claims of Ms. Tara Houghton's three children, who were co-plaintiffs and passengers in her vehicle, were settled before trial. This trial was only about Ms. Houghton's claim as driver.
LIABILITY
[3] In closing submissions the defence changed their initial position of denying liability and conceded that the defendant driver, Mr. Zalesky was 80 per cent to blame for the accident in failing to yield to Ms. Houghton's right-of-way under s. 175(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. However, the defence submitted that Ms. Houghton should be attributed 20 per cent contributory liability for failing to keep a proper lookout. I disagree.
[4] The motor vehicle accident happened on June 2, 2004, shortly after 8:00 a.m. at the intersection of Cypress Bowl Road and the Highway 1 exit ramp in West Vancouver.
[5] The plaintiff, Ms. Houghton, was driving her late model Suburban sports utility vehicle with her three younger children as passengers northbound on Cypress Bowl Road en route to Mulgrave School. Near the end of the Highway 1 overpass which has an upward grade, Ms. Houghton encountered the defendant, Mr. Zalesky, suddenly emerging westbound from his stop sign position intending to turn left and proceed south on the Highway overpass.
[6] That corner presents poor visibility, both for Ms. Houghton and Mr. Zalesky with respect to cross traffic because of the overpass guardrail and concrete abutment to Mr. Zalesky's left. In addition the northbound overpass direction is not at 90 degrees to Mr. Zalesky's visual position but angled.
[7] Ms. Houghton had the right-of-way travelling on the through road with no previous experience of vehicles suddenly emerging from that stop sign location. Mr. Zalesky had the legal obligation to be sure that there was no hazardous oncoming traffic before he emerged abruptly into Ms. Houghton's path. He failed to do so and I find him wholly liable for the motor vehicle collision. The collision was very forceful, resulting in both vehicles being written off as total losses.
DAMAGES
[8] At the time of the impact, Ms. Houghton was wearing a shoulder/lap seatbelt. There was a headrest adjusted to her head and she was travelling at approximately 50 kilometres per hour. She was hit on the right front side of her vehicle by a Mercedes sports utility vehicle driven by Mr. Zalesky.
[9] At the time of the impact, she was looking straight ahead. She reported that she felt her body go to the left, hit the driver's door with her body, and thought that her head hit the window. Her body then went to the right. She did not lose consciousness. Apparently, the airbag did not deploy and the damage to her vehicle was estimated at $11,000. Ms. Houghton did not go to the emergency room. She did attend at her family physician's office approximately two days later. She reported that she felt at the time of the accident immediate right side neck and back pain, and her left lower back was a bit sore.
[10] When she attended at the doctor's office she reported that she had low back pain, headaches and neck ache. She also had some numbness in her thighs with prolonged sitting.
[11] Ms. Houghton then had ongoing treatment with chiropractic, some limited massage, and some physiotherapy. She also made use of a personal trainer. She has had that trainer since 1998 and continued to use the trainer after the accident.
[12] Since the time of the accident, Ms. Houghton testified that she has improved. She had some headaches which resolved after four to six weeks, her neck pain improved approximately 60 per cent, her upper and lower back improved 70 per cent, but did not resolve.
[13] Ms. Houghton was later assessed by Dr. G.M. McKenzie, an orthopaedic surgeon specialist. Dr. McKenzie reported on November 18, 2007, and at p. 5 under "Physical Examination" he states:
She remains five feet, eight inches tall. I weighed her today, she is 125 pounds. She has had a 15-pound weight loss since I saw her. She attributes it to the "stress and death of my husband". Having said that, she is now back at her pre-accident weight. Her gait and squat were normal. Cervical spine shows flexion with chin one finger breadth from the sternum. Extension is full. Rotation was full. Side bending was full. She had discomfort with side bending. She has tenderness in the midline from C3 to C5. She was tender on the right side at C3/4 which is minimal. On the left side she was tender from C3 to 5 over the paraspinals. She was tender over the left trapezius and mildly over the strapezius. I compared this to my previous report to you and this is not significantly changed. The upper extremity examination was unchanged from my previous report. Thoracolumbar spine shows flexion with fingertips to the ankle joint. Lumbar increment is four centimetres, extension was full and caused lumbar pain. Side bending and rotation were full and she had some tightness with side bending. She had tenderness from T3 to T5 over the right and left paraspinal areas and in the midline at T7. In the lumbar spine, she had some midline L5 S1 tenderness. She also had some left sacroiliac tenderness today but had no right sided SI joint tenderness. The paraspinal were not tender at the lumbar spine today. The lower extremity examination was normal, straight leg raising was full, femoral stretch testing was negative. The neurologic examination was normal. Again, I compared this to my previous report and there is no significant change in her physical examination today compared to then.
Investigations
She has had the MRI that I commented on previously. In essence the MRI at the lumbar spine was normal for her age showing some mild disc bulging at L5 S1. On the cervical spine she had some mild disc bulging at C5-6 with some minor degenerative changes.
Assessment/Opinion
This lady is now almost three-and-a-half years from the time of her accident. Prior to this accident she had some essentially asymptomatic or minimally symptomatic problems in the cervical spine. She had what she describes as situational issues which would always resolve within a two to three week timeframe. She did not have a history of any ongoing persistent chronic discomfort in her spine. She functioned at a very high level, both with regard to her activities of daily living, her housework and yard work and her recreational activities.
With regard to her neck, it remains my opinion that she likely has damage to the facet joints in the upper cervical spine. There may be a contribution of pain from degenerative change which was asymptomatic prior to the accident and is now activated by the accident. As it has been three-and-a-half years, she has entered the chronic phase in my opinion. The prognosis for resolution of this pain is poor. She is likely to have some ongoing permanent discomfort for the foreseeable future and perhaps permanently as a result of this motor vehicle accident. In my opinion, the causation of this discomfort is her motor vehicle accident.
With regard to the upper thoracic spine, it remains my opinion she has myofascial discomfort. As per the neck, this is now chronic and the prognosis for the resolution of this is poor. In my opinion, the causation is her motor vehicle accident.
With regard to the lumbar spine, it remains my opinion she has non-specific low back pain. In my opinion, the causation is her motor vehicle accident and the prognosis for resolution is poor.
As a result of her ongoing discomfort, in my opinion she will be limited in her job opportunities. She will require a job that does not involve prolonged lifting, carrying, bending, lifting, et cetera. In other words, in my opinion she would not be fit for a manual labour job. She will require a job that allows for control of her working environment. In other words, she is going to need to have the opportunity for frequent changes of position. This is likely also to affect the way she does her housework and the amount and type of recreational activities that she will be able to do without having discomfort.
[14] Another specialist consulted by Ms. Houghton is Dr. John Le Nobel, a specialist in physical medicine and rehabilitation, who had several assessments of Ms. Houghton and in his last report dated November 19, 2007 under the heading of "Current Treatments" he states:
These days Tara uses Advil anti-inflammatory generally some two to six tablets, five days per week. She uses Ativan in the range of once per week. She tells me she has not been for gymnasium workouts since June 2007. She had up to that time been slowly building up her fitness workouts to as much as 25 pound dumbbells in either hand. She did do the Grouse Grind once during the first half of 2007. She has been doing some gardening work, as much as 16 hours a week these days, although now is being more cautious and careful. In 2002 and 2003 years she would carry bags of yard trash down the driveway to the street. These days she will take them in a wheelbarrow. She tells me that she recently did two consecutive five-hour days in the garden. After, she felt sore and tired, but a good tired. On account of her symptoms, Tara has delegated more of the household tasks to her children. She tells me that absent the motor vehicle accident she would she feels have likely continued on with her previous style of shouldering the majority of the household work herself. Tara is hoping to return to doing some additional fitness workouts. She does have some of her own equipment available to her. She is hoping to get some help from a kinesiologist or fitness trainer to set up a home exercise workout program. She feels that more concentration on flexibility and stretching may be productive, perhaps utilizing some yoga or Pilates-type exercise.
[15] Finally, Dr. Le Nobel's opinion in that report states:
Based on the above information, Tara Houghton before the June 2nd, 2004 motor vehicle accident, was affected from time to time with pains in her low back which were addressed effectively with simple measures, such as massage, chiropractic and occasional medication. In spite of her symptoms, she was able to engage in heavy physical activity such as full days of gardening and able to perform regular fitness exercises in the gymnasium and regular and frequent walks on the Grouse Grind.
The motor vehicle accident of June 2nd, 2004 exposed her to acceleration/deceleration forces leading to symptoms of headache and neck and shoulder pain and pain worsening in her low back and limb numbness consistent with symptoms due to injury from exposure to such forces superimposed on her pre-accident status.
In spite of treatments through her own practitioner and through massage and chiropractic, she has remained symptomatic and limited in her activity tolerance, some three years and five months following the June 2nd, 2004 motor vehicle accident. Based on the time elapsed since being injured she is affected with a chronic pain condition.
Tara has ongoing neck pain diagnosed as due to symptomatic cervical spondylosis. Her neck symptoms have, I believe, resulted as a consequence of forces from the motor vehicle accident of June 2nd, 2004. It is as well evidence that there were some, albeit minor, pre-accident neck symptoms. That said, the symptomatic cervical spondylosis has been materially worsened and contributed to by effects of the motor vehicle accident of June 2nd, 2004.
As noted, Tara has had low back pain prior to the motor vehicle accident going back some years. She has as well since the motor vehicle accident felt a worsening and increased persistence of her low back symptoms. Her diagnosis today is of mechanical low back pain. She is I believe deconditioned with loss of muscle strength and endurance contributed to by effects of the motor vehicle accident superimposed on her prior condition.
She is limited of her tolerance for activities and particular for sustained sitting. Reported in her comments regarding limitation in her sitting tolerance are entries in the records from North Shore Wellness late 2000 year, November 28th: "Sat three hours, sore this morning". December 7th: "Hard time sitting".
Tara was I believe prior to the motor vehicle accident able to improve her functional capabilities through a variety of exercise measures. It is still I believe to be anticipated that with further attempts at exercise on a regular basis she will experience at least some improvement to the point that she can increase her sitting tolerance close to or possibly to the level that would otherwise be expected absent the June 2nd, 2004 motor vehicle accident.
I would anticipate that the assistance of a kinesiologist or fitness trainer could be of help in this respect. I would anticipate that the majority of benefit to be obtained through such an exercise program would be realized over a period of 12 to 14 months and that with such a fitness program, she will have her best chances of functional and symptomatic recovery.
I believe that such a fitness reconditioning program will offer to Tara her best chances of being able to engage in work such as she has done earlier in her life in the real estate field and such that she was most recently engaged in for the past ten weeks. I am not anticipating that surgery will be recommended for Tara.
There is certainly optimism that she can realize some improvement although a full return to all of her pre-accident activities in a symptom-free state is not definite. In that respect, her prognosis for the present time is uncertain. She has not in other words achieved maximal medical recovery based on my evaluation today.
It is noted that Tara has faced a significant loss over the past several months with the death of her husband of a few years only. To what degree precisely this loss has impacted on her musculo-skeletal symptoms is not certain. Certainly caring for her husband during the present year has compromised to some extent her ability to focus on the exercise fitness program.
[16] There is also a report by Mr. Paul Pakulak, an occupational therapist as to a work capacity study which he did of Ms. Houghton. That report is dated November 22nd, 2007 and at p. 26 on "Overall Functional Capacity" under the sub-heading of "Maximum Sustainable Activity Level" the report states:
In my opinion, Ms. Houghton is best suited for activity requiring light and modified medium level strength with limitations specific to prolonged and repetitive below waist level work, prolonged overhead work and prolonged positioning of the neck. Given her response to testing, significant increases in pain levels and a reduction in work pace and capacity at the conclusion of the assessment, it is anticipated that prolonged activity above a light level and/or without provisions for the above limitations will adversely impact her productivity and safety.
[17] Under the sub-heading of "Overall Work Capacity" Mr. Pakulak states:
In my opinion, Ms. Houghton demonstrated the capacity to be competitively employable at up a light level on a full and part-time basis with restrictions and limitations as noted above. She should avoid repetitive and prolonged low level work whenever possible. Prolonged overhead work should be kept to a minimum. She will require the flexibility to change positions periodically and to take stretching breaks to manage pain. It is also my opinion that her overall ability to compete for work in an open job market is reduced due to her ongoing injuries and resultant physical limitations. That is, the overall number of jobs that she would be able to compete for given her physical limitations and formal training are now limited. I would also say as an aside that Dr. McKenzie's assessment of some injury to the facet joints is the only one to pinpoint that aspect. Other doctors have not alluded to that aspect.
[18] From the evidence, Ms. Houghton appears to be an energetic, driven and perfectionistic person. She is clearly not a malingerer. Ms. Houghton is in the process of taking realtor refresher courses in order to challenge the examination to reinstate her realtor's licence. Taking into account her present physical limitations, it is a course of action I would commend.
[19] The defence contends that had Ms. Houghton earlier more assiduously pursued her reconditioning program her improvement as to pain symptoms would be sooner and better than it presently is. However, I think the stress of ongoing matrimonial asset dispute and divorce with her first husband, and concern about nursing and caring for her second husband's terminal illness of cancer before his death in July 2007, were legitimate distractions from her intended goal of more vigorous conditioning and should not be held against her as failure to mitigate.
Non-pecuniary Damages
[20] For loss of amenities and pain and suffering over the last four years, including projecting into the future, I would fix the amount at $50,000.
Past Income Loss
[21] At the time of the accident, Ms. Houghton was not gainfully employed outside of her home. She was a full-time caregiver and homemaker as her husband's income at that time was sufficient to comfortably support her and their children. However, the parties separated in 2002.
[22] Ms. Houghton testified that it was her intention at that time to eventually return to the work force. She further testified that coping with her accident injuries delayed her return to the workforce. A friend of Ms. Houghton, a Ms. Tracey Chalmers, who has business experience and acumen, testified that it was her view that Ms. Houghton had no choice but eventually to return to the workforce if she was to maintain the home in which she presently resides.
[23] Ms. Houghton gave evidence as to the reasons for her delayed entry and said that absent the accident, she would have been in a position to return to the workforce earlier than she did and with perhaps better success than she experienced with her later short-term employment as a manager at Absolute Spa and also with a realtor marketing agency where she was briefly employed called Brandu Industries.
[24] It was submitted on behalf of Ms. Houghton that a one-year delayed entry into the workforce under these circumstances was reasonable and may perhaps be calculated at $30,000. I think that is reasonable and I would grant her that amount as loss of past income.
Loss of Future or General Earning Capacity
[25] I am satisfied that Ms. Houghton's injuries, even with future improvement of symptoms will have some impact on her future overall capital asset earning capacity. Taking into account her present age of 44 years, her present physical condition, and that she will mostly likely re-enter her previous occupation as a realtor in residential sales which for her would be the most suitable and financially remunerative vocation available, I fix future earning capacity loss at $25,000.
Special Damages
[26] Ms. Houghton seeks recovery of special damages outlined in Exhibit 7 that include the costs of hiring people to perform tasks that she would have otherwise performed absent the motor vehicle accident. In addition, Ms. Houghton seeks the increased costs of homemaking services that she has incurred and paid. I think those items and amounts specified are appropriate and reasonable and I would grant the amount of $16,194.00 as special damages.
Cost of Future Care
[27] I have concluded future care should be time-limited to two years. Ms. Houghton will likely be better physically reconditioned and her pain symptoms will likely be less or better tolerated. The following items accordingly are appropriate:
1. Future housecleaning assistance: $2,880;
2. Future heavier seasonal house cleaning assistance: $960;
3. Spring and fall heavy garden clean-up assistance: $1,600;
4. Assessment and physical training assistance by a kinesiologist: $1,620;
5. Provision for periodic massage therapy or chiropractic sessions to assist with pain management during more severe flare-ups of pain: $1,350.
The total of which is $8,410 for cost of future care.
CONCLUSION AND SUMMARY
[28] The defendant, Mr. Zalesky, is wholly liable for the collision. As to damages, in summary the plaintiff is awarded the following:
| 1. |
Non-pecuniary damages |
$50,000.00 |
| 2. |
Past Income Loss |
$30,000.00 |
| 3. |
Loss of General Earning Capacity |
$25,000.00 |
| 4. |
Special Damages |
$16,194.00 |
| 5. |
Cost of Future Care |
$8,410.00 |
|
|
TOTAL |
$129,604.00 |
[29] Court order interest will be added to the appropriate items.
[30] Any issue as to costs?
[31] MR. SPRAGUE: Well there was a formal offer made by the plaintiff of $90,000, or my friend may have some issue with regard to that.
[32] MR. FONG: Yes, My Lord. The issue that we would have for the double costs was that the formal offer was made four days prior to trial which would not be within the seven days and so it would be up to you, Your Lordship's discretion on when the -- if double costs for trial should be --
[33] THE COURT: Was there only one offer?
[34] MR. SPRAGUE: No there wasn't My Lord. The offers go back -- the history is that back on the 29th of January the defendants made an offer of significantly less than the $90,000 and within seven days of the trial the plaintiff made an offer of $60,000. That offer was withdrawn a couple of days later and replaced with the offer of $90,000 with a letter explaining that perhaps the earlier offer significantly under-estimated the correct value of the plaintiff's claim -- and so it is my submission that the defendants clearly had an opportunity -- while they had directed their mind to resolution didn't accept the earlier offer so they are hardly prejudiced by a larger offer at a later date so -- there was lots of opportunity in my view to consider the offer and I don't know why they shouldn't be penalized by double costs for at least the trial.
[35] THE COURT: Mr. Fong?
[36] MR. FONG: My friend is correct with his timing and it is a factual summary of what has happened in that timing and I would just leave it to Your Lordship's discretion to award double costs as it is within your discretion.
[37] THE COURT: I think generally under these circumstances it follows as a matter of course and I see no reason to depart from this. This was a lengthy trial that the plaintiff was required to go through and the award was an amount more than the previous offers. Accordingly, there will be an order for double costs.
[38] MR. SPRAGUE: Thank you, My Lord. I suppose we could just leave it at liberty to apply if we are not able -- in the most unlikely event that we are not able to work out the Court order interest -- I can't imagine that arising, but liberty to apply if we are not able to --
[39] THE COURT: Well, I think basically we will go by this route. Refer it to the Registrar and the Registrar will set it and I will either approve it or not. So there is no need to come back before me if there is a difficulty.
[40] MR. SPRAGUE: Oh, fine. I will draft the order with that indication on it.
[41] THE COURT: All right.
[42] MR. FONG: Thank you, My Lord.
[43] MR. SPRAGUE: Thank you, My Lord. Thank you very much.
“The Honourable Mr. Justice Wong”