2008 BCSC 429 Chu v. Ponsford

Before: The Honourable Mr. Justice Masuhara

Reasons for Judgment

Counsel for the Plaintiff:	K.D. McGee
Counsel for the Defendant:	B. MacIntosh
Date and Place of Trial:	April 4-5, 2008
	Vancouver, B.C.

Introduction

[1] In this Rule 66 “fast track” proceeding Ms. Chu seeks damages arising from a motor vehicle accident that occurred on September 22, 2004 on the Brunette off-ramp that comes off Highway #1, in Coquitlam, B.C. (the “Accident”). The plaintiff was in her 1988 Jaguar XJ, waiting to merge with traffic when she was rear ended by the defendant in his Bronco truck. Damage to her car was estimated to be approximately $5,200. As a result her car was deemed to be a write off by ICBC. The Bronco sustained little damage. Liability is admitted by the defendant.

[2] The nature of the injuries suffered by Ms. Chu can be characterized as soft tissue. She alleges headaches; dizziness and nausea; sleep disturbance; pain and injury to her neck; pain and injury to her shoulders; pain and injury to her back; and radiating pain in her right arm.

[3] At trial, Mr. McGee for the plaintiff characterized Ms. Chu’s injuries as moderate, the pain from which all resolved in the expected period except in one area. The area that remains symptomatic is the plaintiff’s right sided posterior shoulder girdle and mid back.

[4] Mr. McIntosh for the defendant submits that the injuries were mild to moderate and argued that Ms. Chu’s ongoing symptoms did not arise from the Accident but rather resulted from physical deconditioning that occurred secondary to her having become pregnant and renal colic shortly following the Accident. The defence also submits that Ms. Chu’s breast-feeding of her child for 18 months post-partum and her breast implants were contributors to her ongoing problems. The defence further submits that Ms. Chu failed to mitigate by not returning to an active rehabilitation program after her third pregnancy.

Issues

[5] The issues for determination are:

1. Did the Accident cause the ongoing symptoms of pain experienced by Ms. Chu in the area of her right shoulder blade?

2. If so, what damages should be assessed.

Witnesses

[6] The witnesses called by the plaintiff were:

Ms. Chu, the plaintiff;

Dr. Hutchinson, the plaintiff’s family physician; and

Dr. Hirsch, a physiatrist who appeared by video deposition, and provided a written medical opinion.

[7] The witnesses called by the defence were:

Dr. Favero, an orthopaedic surgeon, who provided a written medical opinion.

Mr. Yen, an ICBC estimator, who estimated the damage to Mr. Ponsford’s vehicle.

Mr. Ali, an ICBC estimator, who estimated the damage to Ms. Chu’s vehicle.

Background

[8] The plaintiff was a healthy 33 years old and mother of two children at the time of the Accident. These children are 17 years and 12 years (a daughter and son). Since the Accident she has had two further children (a daughter and son). These latter two children are 2½ years and 3 months. She lives in a five-bedroom town home in Langley, B.C. with her husband of 3½ years, her children, and 2 small dogs.

[9] She has had two previous marriages. The breakdown of her second marriage was a source of considerable distress for the plaintiff. However, at the time of the Accident she was in a happy relationship that led to marriage in February 2005. She was thankful for what she now has but stated that her level of happiness has been affected by the persistent pain she suffers.

[10] Prior to the Accident she was employed by a bakery supply company. She was a sales order clerk and worked five days a week for four to six hours a day. The shorter hours were to accommodate her need to transport her children to and from school. Her tasks were largely clerical. She stopped about five months into her pregnancy in 2004 due to health issues arising from it. She has not returned to work but intends to when her children start school.

[11] Prior to the Accident she had enjoyed an active life. She would hike, camp, swim, go to the gym, and do house and yard work. She also volunteered at the Langley Food Bank and at her church.

[12] In August 2003, during a camping trip, she was swinging from a rope and fell onto rock in shallow water and fractured her heel. This required surgery. She was in a cast for some five weeks, and then progressed from a wheel chair, crutches and then to a cane. She was able to return to work a couple of months after the surgery. She was attending physiotherapy sessions sporadically up to the time of the Accident.

[13] She has had an ongoing problem with kidney stones since the age of 12. Her condition is called medullary sponge kidney disease. She has abnormally formed kidneys which tend to develop kidney stones which cause considerable pain. She has several medications to deal with this. However, during the pregnancy she did not take them.

[14] She was involved in two previous motor vehicle accidents but did not suffer injuries.

[15] On the day of the Accident, Ms. Chu was stopped and waiting to merge with traffic on the Brunette off-ramp from Highway #1. She was looking to her left at traffic in order to merge. Mr. Ponsford was driving his 1991 Bronco behind Ms. Chu. For some reason, he thought that Ms. Chu had accelerated forward to merge. He stated that he went from a dead stop and accelerated a distance of one and one half car lengths to merge as well. Unfortunately, Ms. Chu had not moved forward as he had thought. As a result of his actions, his vehicle collided into the rear of Ms. Chu’s car. He estimated that he was travelling about 10 km/h at the time of impact. Ms. Chu stated that she had her foot on the brake at the time of the impact and that her car was moved forward “a bit”. She also had her seat belt on and her headrest was properly in place.

[16] Immediately following the collision, Ms. Chu pulled her vehicle into the ICBC Claims Centre which is located at the very exit where the Accident occurred. Her vehicle damage was reviewed by Mr. Ali. The damage to her car from the Accident was described as soft sheet metal and plastic at the rear of the car. Her rear bumper, lights, and left quarter panel required repair. Her trunk would not close as a result of the damage. No structural damage to the vehicle frame was found. The damages were estimated to be $5,281.93. However, because this cost exceeded 75% of the value of the car, the car was written off under ICBC’s policy and she was paid some $7,000 being the value of the car plus taxes.

[17] The defendant’s Bronco was taken into ICBC a few days later. The estimator was Mr. Yen. He found that damage from the Accident on the front bumper and lower grill pad of the truck. The damage was minor and described as unsupported sheet metal damage to the front bumper and below the aluminum grill. The estimate of damage was $680.15.

[18] Immediately following the Accident, Ms. Chu testified that she felt “shaky right away” and felt some injury to her head and back. She called Mr. Chu, her then fiancé, to come and pick her up as she could not drive. They then went to pick up her son for lunch, which had been her original intent prior to the Accident. Ms. Chu shared custody of her son on an alternating weekly basis with her former spouse and would have lunches with her son during the week her son was not with her. Within an hour after lunch she attended her family doctor’s office. She reported to her doctor that she had neck pain, shoulder pain, a headache, muscle ache all over her body, but especially when she turned her neck. She also reported arm and back pain. She had a constant headache for the first two weeks following the Accident.

[19] She returned to work one month following the Accident. She stated that within a short time her neck pain and back pains resolved. However, pain around her right shoulder blade continues. She testified that this pain has persisted from the date of the Accident. She described the pain as a nagging dull ache. When she does any leaning or lifting, such as required for childcare, or driving the pain worsens. The pain at times can become unbearable. She also as a result tends to get headaches.

[20] In November 2004, she became pregnant. This pregnancy was very difficult for her. She was hospitalized twice during its course due to renal colic. The first was at 25 weeks. She was hospitalized for two weeks. She required the insertion of a nephrostomy tube. She was hospitalized again at 32 weeks and remained in hospital until being induced and delivered at 35 weeks.

[21] She remained at work for the first five months following the Accident but has not returned. She intends to return to work when her children reach school age. Ms. Chu had a fourth child some three and one-half months ago. This pregnancy was not difficult as she took more precautions, such as remaining hydrated. She testified that at this stage of her life she should be happy and joyful but that it has been diminished because of her pain and the limitation it causes her.

Law

[22] In this case, since liability has been established, the issue becomes one of causation in relation to the injuries of the plaintiff.

[23] Counsel for the parties agreed with my view that the test to be applied in this case was the “but for” test.

[24] The burden of proof is on the plaintiff to establish that “but for” the Accident she would not be experiencing the pain in her right shoulder blade area.

[25] I am mindful of the comments of McEachern C.J.S.C (as he then was) in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) where he quoted from his earlier decision in Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.):

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.

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.

Medical Evidence

[26] The parties tendered medical reports of the plaintiff’s family physician and experts.

[27] The general impression from the testimony of all of the medical witnesses was Ms. Chu was pleasant, cooperative and forthright. Specifically, Dr. Favero stated he observed “No over-reaction, exaggerated pain mannerisms, or non-organic clinical signs.” Dr. Hirsch concurred with this observation.

[28] Dr. Hutchinson has been the plaintiff’s family physician since the late 1990’s. She indicated that Ms. Chu was not known to have had any established or long-term issues with her neck and/or back pre-Accident. At her first attendance after the Accident, September 22, 2004; she was diagnosed by a locum with a Grade II musculoskeletal injury. She opined that the plaintiff had suffered soft tissue injuries to her neck and upper back as a result of the Accident. Dr. Hutchinson injected Depo-medrol with Xylocaine to painful trigger points in her right shoulder blade muscles.

[29] Dr. Hirsch called by the plaintiff saw the plaintiff in his office on December 10, 2007. He opined that Ms. Chu sustained injuries to her neck in the Accident and that she made a full recovery in regard to her neck injuries. He also opined that as a result of the Accident, she sustained injuries to her right posterior shoulder girdle region and mid back in the Accident and that the onset and persistence of her right posterior shoulder girdle and mid back symptoms is as a result of the Accident. He also reported that:

Possible compounding factors in regard to the ongoing right-sided posterior shoulder girdle and mid back symptoms are the prolonged immobilization in 2005 during the later part of her third pregnancy, and the postural requirements pertaining to breastfeeding. However, there is no evidence that in the absence of the injuries suffered in this motor vehicle accident, Mrs. Chu would have manifested symptoms of right-sided posterior shoulder girdle and mid back pain. It is, however, reasonable to assume that the aforementioned compounding factors contributed to the prolongation of these symptoms.

Dr. Hirsch also stated that he expected Ms. Chu to make a “good” or “very good” recovery. But given the duration of her symptoms his prognosis of a complete resolution was guarded. He did not believe that the persistence of her symptoms, which could be periodically distracting, would not significantly negatively impact upon Ms. Chu’s day-to-day activities.

Dr. Favero, called by the defence saw the plaintiff on July 18, 2007 in his office. His examination revealed two positive findings; physical deconditioning and tenderness at the top of the right shoulder blade area musculature. Based on his review of various medical and other related documents; his interview of the plaintiff; and examination, he opined that as a result of the Accident, Ms. Chu suffered a mild to moderate soft tissue injury to her neck and upper back areas.

[30] Based on his clinical experience and training, he stated that he would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the Accident. He went on in his report to state further that:

Mrs. Chu’s prolonged neck/upper back soft tissue complaints were the result of significant physical deconditioning that occurred secondary to her having become pregnant shortly following her motor vehicle accident. This apparently interfered with her having continued with a structured/goal directed exercise program. Further, M. Chu’s renal colic during her pregnancy, enforced bed rest, restricted physical activities, etc. in my opinion were also significant factors contributing to physical deconditioning, and the prolongation of her current upper/mid back soft tissue and muscular complaints. In addition, the fact that Ms. Chu breast fed for 18 months post-partum was probably another significant factor contributing to her upper back pain problem, as were the breast implants that she described as being a possible source of upper back and shoulder girdle discomfort.

[31] Dr. Favero opined that no restrictions on her physical activities were required and that she could continue or resume all normal forms of childcare, employment, housework and recreational activities.

[32] He also opined that Ms. Chu’s ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the Accident.

Discussion

[33] The focus of this case involves the cause of the persisting pain in Ms. Chu’s right shoulder blade area. The parties agree that in general the symptoms from the type of soft tissue injury sustained by the plaintiff would normally resolve within 6 to 12 weeks and that the injuries should heal within a year.

[34] The principal difference between the medical opinions is that Dr. Favero’s view is that Ms. Chu’s symptoms are not due to the Accident but arose from other factors such as the deconditioning that she experienced from the difficulties surrounding her third pregnancy and resulting breastfeeding of her child. On the other hand, Dr. Hirsch’s view is that Ms. Chu’s symptoms have persisted since the Accident, and that given all of the information available, he opined that her pain is a result of the Accident.

[35] The defence argues that Ms. Chu did not tell Drs. Favero and Hirsch of back pain that she had in the past and that this has a bearing on the findings to be made by the court on Ms. Chu’s persisting pain. Both Drs. indicated that had they been aware of this that their opinions might be different. I would note that the evidence of previous back pain arises from an entry in the records of a kinesiologist some five months prior to the Accident. Though both doctors stated that they had reviewed these records they did not notice the entry.

[36] The defence also argues that Ms. Chu’s credibility is brought into question because she did not tell the two doctors of her previous back pain; that she testified on a bad day that she could not even get down on the floor to play with her 2 year old yet did not ever report these difficulties to her family doctor; her failure to return to an active rehabilitation program that worked for her in the past, namely that she did not return to physiotherapy; her excuse that she sought out chiropractic treatment over physiotherapy because she could not afford the time to go for a one-half hour session lacked time. It is also submitted in this vein that Ms. Chu’s credibility should be questioned given her.

[37] I do not find that the one mention of back pain to her kinesiologist some 5 months before the Accident a matter sufficient to conclude that Ms. Chu’s persisting back pain was a pre-existing problem or that her credibility has been undermined. I say this on the basis that it is one entry regarding back pain, there is no other report of such pain, and further, that Ms. Chu provided an explanation that she was relating to the kinesiologist as part of her history that she experienced pain when she had a limp and had to do computer work. She explained that she was limping until about December 2003 and wanted to tell her kinesiologist of this at her appointment in April 2004. The back pain she was referencing was not as at April but at an earlier time.

[38] I am of the view that Ms. Chu was not attempting to conceal the truth. Rather, I accept her evidence that she was relating her history to her kinesiologist. I found Ms. Chu to be consistent and forthright in all of her other testimony. Like Drs. Favero and Hirsch and Hutchison I did not find Ms. Chu to be opportunistic in her testimony. Her explanation was reasonable in the circumstances. I note as well, Dr. Favero’s testimony that the symptoms of 10% to 15% of those suffering soft tissue injuries as Ms. Chu do not resolve and remain chronic. Ms. Chu’s symptoms have been consistent since the Accident.

[39] I find that her explanation for her lack of reporting the symptoms from the Accident to her family physician after December 2005 to September 2006 and earlier; that there was not much more she could do, to be reasonable. I say this based on the surrounding circumstances of Ms. Chu at the time. She had recently given birth to her third child in July after a very difficult pregnancy; she had been hospitalized twice during the pregnancy. The first time at 25 weeks for two weeks and the second time at 32 weeks; remaining there until being induced and delivering at 35 weeks. Further, her testimony indicated that though her child was healthy, the child had a condition that caused her to vomit and not thrive. The child was diagnosed with eosiniophilic esophagitis and ketotic hypoglycaemia. This child is now 3 years old and is 22 lbs, which I am told is equivalent to a nine-month child. The child has been hospitalized five times and is under the care of a feeding team and child development team. My view is that Ms. Chu had a number of variables to manage beyond her those from the Accident. I note as well that during this period, Ms. Chu continued to receive massage therapy treatment and she continued to do her core strength exercises (pilates) at home, stretches, and other exercises she learned from her physiotherapy and massage therapists. She also swims with her family, attends a fitness gym with her eldest daughter (she has been a member for three years). She continues to do house and yard work, she uses cloth diapers for her children so is required to clean them, she cooks and cleans, and cares for two small dogs. In terms of hobbies she paints furniture, she also paints on canvas and ceramics. She is unable to do these activities as much as she did before.

[40] In my view, I found Ms. Chu to be a credible witness. She is a person who is hardy and accustomed to having experienced considerable pain yet has worked and carried on with her life. She has not overstated her injuries. Rather, she says that all of her symptoms have resolved except for one area. Her symptoms are consistent with the injuries she sustained in the Accident. I note again Dr. Favero’s testimony that 10% to 15% of cases do not resolve. While I am of the view that Ms. Chu will have a “good” to “very good” recovery, complete recovery is uncertain.

[41] I find that Ms. Chu’s persisting symptoms in the area of her right shoulder blade are as a result of the Accident.

[42] The defendant also argues that Ms. Chu has failed to mitigate. In this regard, the defence submits that Ms. Chu never returned to an active rehabilitation program after her third pregnancy, which is now some 3½ years.

[43] There is a duty on the plaintiff to take reasonable steps to limit loss. The onus is on the defence to establish that the plaintiff could have reasonably avoided some part of the loss: Red Deer College v. Michaels [1976] 2 S.C.R. 324 at 331. Given, the treatments sought by Ms. Chu, her attempts to continue with the exercises that she learned from her therapists, her home exercises, as well as the considerable health issues she faced during her third pregnancy, the ongoing health issues her young daughter faced from the start and the attention Ms. Chu was required to focus on the child, as well as her fourth pregnancy, I am not persuaded that her actions were unreasonable.

Damages

Non pecuniary:

[44] The plaintiff submits that the plaintiff is entitled to non –pecuniary damages in the order of $35,000. Cases in support are: Stevanovic v. Sin, [2007] B.C.J. No.2679 (S.C.); Cryderman v. Giesbrecht, [2006] B.C.J. No. 1148 (S.C.); Chumber v. Ford Credit Canada et al, 2006 BCSC 1935; Letourneau v. Min [2001] B.C.J. No. 2324 (S.C.); Letourneau v. Min, [2003] B.C.J. No. 274 (C.A.); and McTavish v. MacGillivray, [2000] B.C.J. No. 507 (C.A.).

[45] The plaintiff submitted that while there is some evidence of a loss of capacity with respect to certain activities such as painting and housekeeping, the appropriate approach in this case should be to make an allowance for this feature in the assessment of non-pecuniary damages.

[46] The defendant submits that the plaintiff is entitled to non-pecuniary damages in the range of $15,000 to $20,000. Cases in support are: Farrant v. Laktin 2008 BCSC 234; Kenny v. Leveson-Gower 2005 BCSC 447; and McDonald v. Pearce 2005 BCSC 1106.

[47] Taking into account the injuries involved; the unresolved symptoms and the prognosis of a good to very good recovery, the nature of the persisting pain; Ms. Chu’s hearty constitution, carrying out most activities she did in the past though with greater effort; and the cases referred to by the parties, my assessment of the damages is that Ms. Chu is entitled to $25,000.

Past income loss:

[48] The parties agree that the amount of past income loss is $974.67 and that she is entitled to be compensated for this loss. I am also advised that this is a net figure, adjusted for tax effects.

Special damages:

[49] The plaintiff claims expenses for:

Massage Therapy: 17 sessions from October 6, 2004 to January 16, 2007 in the amount of $843.

Physiotherapy: 4 sessions from January 6, 2005 to February 4, 2005 in the amount of $80.

Chiropractic: 14 sessions from January 20, 2007 to November 29, 2007 in the amount of $530.

These expenses total $1,453.

[50] The defendant submits that the chiropractic sessions were not recommended by any physician. The defendant points out that both the plaintiff’s and defendant’s experts did not see the benefit of passive modalities which were chiropractic adjustments and massage in Dr. Hirsch’s view. Dr. Favero added acupuncture and physiotherapy to this list.

[51] In my view, the chiropractic treatment is a form of primary care. No referral from a physician is required. Though Drs. Hirsch and Favero do not favour this modality, it is agreed that it provides some short-term relief to the plaintiff. The doctors did not state such treatments were inappropriate. The treatment that Ms. Chu has sought ought is not excessive and I conclude that these expenses are reasonable in the circumstances.

[52] In the result, Ms. Chu is awarded $1,453 under this head.

Future Care:

[53] I note that Dr. Favero strongly recommended that Ms. Chu be provided 12 sessions of individualized exercise therapy with a knowledgeable kinesiologist or physiotherapist to teach Ms. Chu a proper exercise program emphasizing core muscle strengthening, shoulder girdle/scapular stabilizing muscle strengthening, stretching and cardiovascular exercise. He stated that proper posture and alternative pain management strategies would also be an important part of a functional rehabilitation program. Following the 12 sessions of individualized exercise therapy, he recommended that Ms. Chu be provided a three-month gym membership with the strong encouragement that she continues with her goal oriented exercise program.

[54] Dr. Favero also recommended that Ms. Chu be provided 6-12 session of cognitive behavioural therapy with a knowledgeable psychotherapist. This would be to review active pain management skills, to teach her proper relaxation techniques, to go over goal based pacing of her physical activities and to challenge maladaptive attitudes that she may have developed regarding her pain.

[55] In terms of future management, Dr. Hirsch stated that Ms. Chu should continue with her “well established, home-based exercise program” and to have a cardiovascular workout routine. He was also of the view that she may benefit from trigger point injections but that the injections should be performed by a physician who is well acquainted with this modality. He also agreed with Dr. Favero’s recommendation of exercise therapy sessions and gym membership. Dr. Hirsch did not align himself with Dr. Favero’s recommendation for cognitive therapy, since it was his view more usually employed for people with chronic pain disorder, which is not present in this case. However, he did not oppose this therapy.

[56] There was little evidence of the costs of these items. Neither the plaintiff nor defendant addressed these items in final submissions. Counsel are requested to advise if a determination by the court is required.

Conclusion

[57] As a result of the forgoing, Ms. Chu is awarded the following damages (exclusive of the question of future care as discussed above):

Damages		Amount
Non-pecuniary	$	25,000.00
Past Income Loss	$	974.67
Special Damages	$	1,453.00
Total	$	27,427.67

“The Honourable Mr. Justice Masuhara”

Citation:	*Chu v. Ponsford,*
	2008 BCSC 429