IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Iliopoulous v. Abbinante, |
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2008 BCSC 336 |
Date: 20080318
Docket: M92424
Registry: New Westminster
Between:
Jolanta Iliopoulous
Plaintiff
And
Vincenzo Abbinante
Defendant
Before: The Honourable Mr. Justice Bernard
Reasons for Judgment
| Counsel for the Plaintiff: |
D. Kennedy |
| Counsel for the Defendant: |
D. Framingham |
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Date and Place of Trial/Hearing: |
October 4, 2007 |
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New Westminster, B.C. |
[1] On January 11, 2004, Jolanta Iliopoulos was the front-seat passenger in a mini-van struck, on the driver’s side, by the front of a mini-van driven by Mr. Abbinante. Ms. Iliopoulous was wearing a seatbelt. The collision was the sole fault of Mr. Abbinante. The mini-van occupied by the plaintiff sustained extensive damage and was “written-off.” The collision occurred without warning and the impact was relatively severe. Ms. Iliopoulous sustained soft-tissue injuries, some of which she says persist and are likely permanent.
[2] On August 12, 2005, Ms. Iliopoulous was driving a mid-sized sedan when she “rear-ended” a vehicle which had stopped in traffic. The front of her car went under the back of the vehicle she struck, causing more damage to her car than to the one struck. Her car, worth $5,000, was “written-off.” The collision was the sole fault of Ms. Iliopoulous. Ms. Iliopoulous says that this collision temporarily aggravated her injuries from the earlier collision.
[3] Ms. Iliopoulous’s claim is for damages arising from the first collision. The defendant’s liability is admitted. In dispute is the effect of the second collision as an “intervening act” and whether Ms. Iliopoulous failed to mitigate her damages. The head of damages where there is significant disagreement is in respect of future loss of income earning capacity.
[4] The plaintiff seeks damages as follows:
| (1) |
Non pecuniary |
$55,000 - $60,000 |
| (2) |
Special |
$1,457 |
| (3) |
Loss of Future Earning Capacity |
$50,000 - $80,000 |
| (4) |
Future Care |
$20,450 |
[5] Ms. Iliopoulous was a healthy, pain-free, physically fit 45-year old mother of four teenagers at the time of the collision in 2004. She stretched, walked, did yoga, gardened, did household chores, cared for her family, and was employed as a medical office assistant. In 2004, she was the sole income earner for her family. Her husband was disabled with lymphoma, which he had been battling since 2000. He succumbed to his illness in 2004.
[6] In the morning following the 2004 collision, Ms Iliopoulos saw her physician, Dr. Bitonti. She was experiencing pain in her head, neck, shoulders, feet, lower back, right hip, and knees. Despite the pain, she continued to work in order to support her family. She struggled with her duties at work and at home. She said she suffered from extreme fatigue from working in pain at her job. It left her with no energy to work at home. She described having a heavy head, and suffering from pain in her head, neck, shoulder, lower back, hip and feet. She said the problems with her feet subsided within 6 months and that the “crunching” in her neck resolved before the second collision; however, the other symptoms persisted through 2005 and 2006. She noted that she would be adversely affected by changes in the weather.
[7] Ms. Iliopoulous did not have physiotherapy. She claims that she was unable to get funding for it. In June 2005, she saw a chiropractor for the pain in her lower back. She took various anti-inflammatory and pain-relieving medications and hot showers.
[8] Ms. Iliopoulous said that the 2005 collision “set her back” or aggravated her condition “a bit,” specifically around the right shoulder and lower back. She sustained a new injury to her chest. She said: “I only felt worse for a week or two after the second MVA and then I returned to my previous state.”
[9] At the time of her trial testimony (May 2007) Ms. Iliopoulous said that she experience pain on a daily basis – “some days much worse than others.”
[10] She described a pain in her right hip which radiates through her waist and lower back. She suffers from “pins and needles.” She says her symptoms are aggravated by bending at the waist. Her job duties are primarily secretarial and she works with a headset which helps her to “multitask.” She is often required to type for three-hour periods, which she finds difficult because of her condition.
[11] Ms. Iliopoulous estimated that she has had about 50 per cent improvement in her condition since the 2004 collision, but that this trend halted about one year ago. She said that her condition worsened in the winter just past.
[12] In January 2004, general practitioner Dr. Bitonti diagnosed Ms. Iliopoulous as suffering from soft tissue and ligament injuries to her neck, shoulder, back and right hip and severe anxiety while driving, all arising from the 2004 collision. Dr. Bitonti said that Ms. Iliopoulous “followed the medical advice and treatment given faithfully.” In February 2007, Dr. Bitonti opined that the 2004 collision is the cause of Ms. Iliopoulous’s chronic pain and spasm in the neck, back, and right hip muscles. Dr. Bitonti said that is unlikely that Ms. Iliopoulous will have any major improvement in the future; that she will require regular massage, physiotherapy, and medical treatment to help manage the pain and improve her neck and back range of motion; that she will likely require someone to help her with heavy housework and gardening; and, that the chronic condition will likely force her to make changes to her personal and professional life in the future.
[13] In relation to the 2005 collision, Dr. Bitonti testified that the injuries were short-lived and related to the right shoulder – a different area of injury than that in the first collision. She opined that it was not possible that Ms. Iliopoulous would have recovered from her injuries sustained in the first collision “but for” the second collision. She regarded the second collision as only a temporary aggravation of Ms. Iliopoulous’s problems arising from the first collision.
[14] Dr. Hershler, a specialist in physical medicine and rehabilitation saw Ms. Iliopoulous on August 17, 2004, February 22, 2005, and February 15, 2006. He prepared a report in October 2006. In his report he wrote that he found significant connective tissue injuries to the upper cervical spine, right sacroiliac joint and right lumbar region, all of which he attributed to the 2004 collision. His prognosis for recovery and resolution of pain was “extremely guarded.” He added that there was a “good” likelihood that Ms. Iliopoulous’s chronic pain would lead to a reduction in work hours and a premature shortening of her work years. He recommended ten counselling sessions to assist her with pain management and anxiety.
[15] Dr. Hershler testified that he did not know that Ms. Iliopoulous had been in a second collision in August 2005; however, he said that by August 2005 Ms. Iliopoulous had reached “chronicity” of symptoms, and in such a state recovery is “less likely to be affected by a subsequent injury.” He added that if Ms. Iliopoulous’s neck was not injured in the second collision then his conclusions would remain the same.
[16] Dr. Hill, an orthopaedic surgeon, interviewed and physically examined Ms. Iliopoulous on February 7, 2007. Dr. Hill prepared a report which was tendered into evidence by the defendant. Dr. Hill’s diagnosis was substantially the same as the others’ and he opined that the “primary trauma” was the 2004 collision. He said that Ms. Iliopoulous was never properly rehabilitated and that her recovery “would have been more complete and less elongated” if she had not been in the second collision. He recommended an exercise regimen and attributed Ms. Iliopoulous’s failure to pursue regular exercise as contributing to her “deconditioned” state which he refers to as “a secondary factor in causing her ongoing complaints.” In his report he concludes that “she will probably over the long-term gradually experience resolution of her problem and may end up with a degree of sensitivity about her neck and back and it will be less so if she is provided a rehabilitation program and carries out the fitness activities that I have suggested.”
[17] In February 2007, physiotherapist Katie Barr evaluated Ms. Iliopoulous’s physical capacity. The results led Ms. Barr to opine that Ms. Iliopoulous was employable, on a full-time basis, only in a “limited strength” occupation. Ms. Iliopoulous’s position as a medical office assistant is such an occupation. She concluded that Ms. Iliopoulous will always require a flexible employer, a flexible schedule, and a position with variable demands. She will need to be able to have breaks and rests, and to be able to pace her activities.
[18] Alison McLean, an occupational therapist, analysed the costs of future care for Ms. Iliopoulous. She states that Ms. Iliopoulous, as a result of her symptoms, her reduced range of motion, and her physical deconditioning, has not been able to resume leisure/recreational activities and has difficulties with: (a) her tolerance for work tasks; (b) gardening; (c) cleaning her car; and (d) heavier household tasks. She recommends:
(1) 18 to 24 physiotherapy assessment/treatment sessions, at a cost ranging from $640 to $1,325;
(2) A fitness program, including kinesiology, at a cost ranging from $1,500 to $3,800 in the first year, and approximately $500 per year, thereafter;
(3) 26 massage therapy sessions, at a cost ranging from $1,300 to $1,700;
(4) 18 pulse signal therapy sessions at a cost of $2,500;
(5) 10 counselling sessions at a cost of $1,500;
(6) Homemaking assistance at a cost ranging from $2,800 to $3,360 per year, for five years, and $800 to $960 thereafter;
(7) Grocery delivery at a cost of $312 per year, for five years, and $156 per year, thereafter;
(8) Ergonomic assessment at a cost of $225 to $300;
(9) Driving program at a cost of $800;
(10) Car wash service at a cost ranging from $30 to $120 per year;
(11) Yard maintenance at a cost of $850 per year;
(12) Ergonomic work station at a cost ranging from $800 to $1230;
(13) Extended car mirror at a cost of $5 to $10;
(14) Heating pad at a cost of $20 per year; and,
(15) Medications, at an unknown cost.
[19] Ms. Iliopoulous sustained significant soft tissue injuries from the 2004 collision. The impact from the defendant’s vehicle was great and came without warning. Ms. Iliopoulous’s body experienced a violent lateral thrust. Ms Iliopoulos sustained the sort of injuries one would expect from such a collision.
[20] Ms. Iliopoulous attended to her physician immediately but obtained little, if anything, to assist her and to promote recovery. At the time of the collision she was caring for her terminally ill husband and four teenaged children. As the sole income earner for the family, she persevered through pain-filled work days, and collapsed with exhaustion at the end of each day. Not surprisingly, her priority was providing needed financial support to her family.
[21] Ms. Iliopoulous has not recovered from all the injuries she sustained. She has been frank about those which resolved through the passage of time. She now suffers from chronic radiating pain from her right hip to her lower back. This pain has a significantly negative impact on her work, on her leisure activities, and on her general enjoyment of life. The medical evidence supports the chronicity of her symptoms and her poor prospects for substantial improvement in the future.
[22] I am satisfied that the controversy over the second collision as an intervening cause ought to be resolved in favour of the plaintiff. I accept Ms. Iliopoulous’s testimony that the impact from the second collision was relatively minor and that it caused a short-lived aggravation of her injuries from the first collision. There is medical evidence which corroborates Ms. Iliopoulous’s testimony in this regard; moreover, it is noteworthy that the second collision was materially different from the first. In the second collision, Ms. Iliopoulous drove into the rear of another vehicle. Unlike the earlier collision, she was not taken completely by surprise and she was not thrust laterally. The evidence establishes that she did not sustain an injury to her neck in this second collision; accordingly, the evidence of Dr. Hershel is not undermined.
[23] In relation to mitigation of damages, I am not persuaded that Ms. Iliopoulous showed any failure, in all the circumstances. Perhaps there are situations where one could be faulted for failing to focus one’s time and energy on recovery, rather than upon earning an income and meeting the needs of one’s family; however, this was not one of them. Ms. Iliopoulous was the sole income earner for a large family living through a trying time as the father/husband struggled with, and succumbed to, cancer. She persevered through the pain to meet the needs of her family, and this left her without personal reserves or resources for exercise and treatments.
[24] I accept the evidence of Drs. Bitonti and Hershler in relation to the impact Ms. Iliopoulous’s chronic injuries will have on her working life. I am satisfied that her chronic pain will more than likely compromise: (a) her future employability; (b) the number of hours she will be able to work, if employable; and (c) the duration of her working years. I accept Ms. Barr’s evidence that Ms. Iliopoulous is, by her injuries, restricted to limited strength occupations and needs an understanding and flexible employer. Prior to the 2004 collision, she was a strong, healthy and fit woman who did not face these restrictions and needs in the workforce.
[25] The plaintiff seeks $55,000 to $60,000. In support of her position she cites the following cases: Gibbs v. Skemp, [1998] B.C.J. No. 680 (S.C.)(QL), ($55,000); Jackman v. All Season Labour Supplies Ltd. 2006 BCSC 2053, ($40,000); Kahle v. Ritter, 2002 BCSC 199, ($50,000); Paller v. Paller, 2004 BCSC 977,($60,000); and Prevette v. Cusano, 2001 BCSC 489, ($50,000). I agree that these cases bear relevant similarities to the instant case (in particular, the Kahle case) and offer a useful measure for the quantum of non-pecuniary damages.
[26] The defendant’s position is that $30,000 to $35,000 is appropriate and that it must be reduced by 40 per cent in recognition of: (a) the plaintiff’s failure to mitigate; and, (b) the exacerbation of her injuries through her negligence in causing the second collision.
[27] For reasons previously stated, I am satisfied that there is no reasonable basis upon which the fair and just award for non-pecuniary damages ought to be reduced; accordingly, having regard to the cases cited, non-pecuniary damages are set at $50,000.
[28] The plaintiff claims $1,460. The only controversy arises from the defendant’s position that the plaintiff: (a) failed to mitigate and (b) exacerbated her injuries through her own negligence. In light of the rejection of these two positions, special damages are set at $1,460.
[29] The plaintiff seeks $50,000 to $80,000. In support of her position, she cites the following cases: Gibbs v. Skemp ($55,000); Kahle v. Ritter ($80,000); Miscisco v. Small, [1993] B.C.J. No. 1105 (S.C.)(QL), aff’d 2001 BCCA 576, ($40,000); Prevette v. Cusano ($40,000).
[30] The defendant submits that the plaintiff has failed to prove a substantial possibility of a future event leading to an income loss to justify an award of compensation based upon an estimation of the chance that the event will occur (see Parypa v. Wickware,.1999 BCCA 88, 65 B.C.L.R. (3d) 155, at para. 65).
[31] In support of his position, the defendant argues that the plaintiff’s career ambition is to work as a doctor’s assistant for the remainder of her working years, and that there is no reason to believe, based upon her full-time employment since the first collision, that she will not do so.
[32] I am satisfied that evidence of Drs. Bitonti and Hershel proves a substantial possibility that Ms. Iliopoulous’s working hours, working years, and future employability will be compromised by her chronic injury. She has suffered a loss or impairment of her earning capacity as a capital asset; however, in light of: (a) her career objectives; (b) her relatively secure employment; (c) her demonstrated work ethic; and (d) the prospect for some improvement in her condition with the benefit of future care and treatment, I would not consider the probability of actual future loss to be very high.
[33] Assessing this loss on a judgmental basis, with due regard to the cases cited and to Ms. Iliopoulous’s personal circumstances, damages for future loss are set at $35,000.
[34] Notwithstanding the occupational therapist’s recommendation, Ms. Iliopoulous does not seek, as part of her future care, the costs for fitness and kinesiology programs after the first six months, counselling, housecleaning, grocery shopping, a driving program, a telephone headset, and an extended car mirror. The plaintiff’s claim is for the balance of Ms. McLean’s recommendations, at a total cost of $20,450.
[35] The defendant submits that there is no evidentiary foundation to support many of these future care costs; that a mere proposal from Ms. McLean is not enough. The most contentious costs are for the costliest items: kinesiology treatments, massage therapy, pulse signal therapy, yard maintenance, and medications.
[36] I am satisfied that Ms. McLean’s recommendations are rationally linked to Ms. Iliopoulous’s diagnosis and prognosis, and that they are supported by the whole of the evidence. For example, Ms Iliopoulos testified to her struggles with gardening, and Dr. Hershel specifically recommended pulse signal therapy, and testified to its merit. The chronicity of Ms. Iliopoulous’s pain and the poor prospects for recovery establish that the periods which the various costs are intended to cover are reasonable, with the exception of the period for yard maintenance which is shortened from ten years to five, based upon a lack of evidence supporting the former. Future care costs are set at $16,220.
[37] The plaintiff’s claim for damages is allowed. The quantum is set at $102,680.
“The Honourable Mr. Justice Bernard”