2008 BCSC 435 Randhawa v. Hwang

Before: The Honourable Madam Justice Fenlon

Reasons for Judgment

Counsel for the Plaintiff	D. M. McGregor
Counsel for the Defendant	E. A. Burgess J. S. Dyer
Date and Place of Trial:	February 25 - 29, March 3 - 5, 2008
	Vancouver, B.C.

Introduction

[1] Ms. Randhawa claims for damages arising out of a motor vehicle accident that occurred on February 17, 2003, five years before trial. Liability for the accident is admitted, but the defendant says that the motor vehicle accident is not the cause of the plaintiff’s ongoing health problems and her inability to work. The defendant points to a work injury and five previous motor vehicle accidents as the cause of the plaintiff’s health problems. The main issue in the case is causation.

[2] The Court has been asked to assess non-pecuniary damages, special damages, loss of future earnings, and the cost of future care.

Background

[3] Ms. Randhawa was 47 years old at the date of trial. She has a long history of back injuries and complaints. In the 1980s while working at a hospital as a care aide, she suffered a low back injury lifting a patient. In 1985 and in 1987, Ms. Randhawa was involved in motor vehicle accidents, at least the second of which caused her to experience some low back pain. In 1990, when Ms. Randhawa was five months pregnant with her third child, she was involved in a third motor vehicle accident. Following that accident, she experienced low back pain which was exacerbated by her pregnancy and which did not resolve after the birth of her son. Ms. Randhawa stopped working as a care aide after that accident although it was not clear on the evidence whether that was due to her back problems or her desire to be at home with her infant son.

[4] By 1995, Ms. Randhawa had begun working as a receptionist and moved in 1996 to take up a similar position with West Coast Home & Truss Ltd. ("West Coast Truss"). While she was on her way to work in June of 1996, she was involved in a fourth accident when the vehicle she was travelling in was rear-ended by a dump truck. Ms. Randhawa was rendered unconscious for a short period, injured her neck and lower back, and was screaming in pain in the ambulance. Ms. Randhawa was not able to resume work until September 1996, at which point she was involved in a fifth motor vehicle accident. Ms. Randhawa’s vehicle was again rear-ended and she experienced lower back and neck pain which she described as worse than what she went through after the fourth motor vehicle accident earlier that year. Ms. Randhawa did not return to work after the fifth motor vehicle accident until December of 1999, some three years later.

[5] By the spring of 1997, Dr. Crosby, an anaesthetist, had diagnosed bilateral facet joint arthropathy and had begun giving Ms. Randhawa a nerve block for pain through injections into the lower spine. Those injections continued until January of 2002.

[6] Ms. Randhawa’s claim for damages relating to the two 1996 motor vehicle accidents went to trial in October of 2001. At that trial, Ms. Randhawa testified that she was still suffering from constant low back pain and headaches bad enough to cause her to vomit, as well as ongoing neck pain. She also gave evidence that her social life was seriously affected by the injuries she had experienced following the 1996 accidents, as she was unable to cook for her family and friends, to do heavy housework, or to enjoy parties, dancing and family gatherings generally.

Position of the Parties

[7] Ms. Randhawa says that while she continued to experience occasional stiffness in her low back with flare-ups resulting in a sore neck and headaches before the 2003 motor vehicle accident, those symptoms were usually activity-related, and associated with excessive stress or work tasks. The plaintiff says that while she continued to have some low back pain, she was able to work through it and was managing at home, in her social life, and at work. Ms. Randhawa says that while she experienced many of the same symptoms and problems following the 1996 accidents, those symptoms had largely resolved and she was managing to keep things together, both at work and at home.

[8] The defendant argues that other than some soft tissue injury which resolved within about a year, Ms. Randhawa's condition was the same before the 2003 accident as it was after, that the plaintiff exaggerated the extent of her disabilities and was not credible, and that she failed to meet the burden of proving, on a balance of probabilities, that her present difficulties resulted from the 2003 motor vehicle accident.

The Accident

[9] Ms. Randhawa was the driver of a mid-sized sedan which was struck on the right front end by the defendant’s vehicle as he attempted to move into the plaintiff’s lane from her right. At the time of the accident, Ms. Randhawa was wearing a seatbelt and her seat back was equipped with a headrest that came to above the top of her head. She bumped her elbow but no other part of her body. The police attended but no report was made. An ambulance also attended. After Ms. Randhawa had been checked over by a paramedic, she decided to have her husband drive her home rather than be taken to the hospital because she understood that she would have to wait several hours before being seen, and was told that she could come to the hospital if she needed to later. Her vehicle sustained moderate damage to the right front wheel-well area and underwent repairs of just under $5,000.

Analysis

1. Credibility: Should the Plaintiff's Evidence be Accepted?

[10] Ms. Randhawa was not a careful witness. She had a tendency to be emotional and dramatic on the stand, and to over generalize about her symptoms. For example, she said on examination for discovery that following the accident she always had trouble getting in and out of her car, to the point that she had to lift her leg into the vehicle and hold onto the door frame to ease in. At trial, she qualified her evidence by saying that she was describing her bad days when she gave that evidence on discovery. Video surveillance clearly showed the plaintiff getting in to and out of her vehicle on many occasions with minimal difficulty. Dr. Hunt and Dr. Hershler, two experts who testified on behalf of the plaintiff, noted that the plaintiff told them that her car was a "write off" following the accident, which was not the case. When confronted with a written statement she had signed at an I.C.B.C. Claims Centre the day after the accident that differed from her account at trial of how she felt immediately following the accident, she suggested that the written statement might not be what she signed or that she had not read it. In addition, Ms. Randhawa’s memory was generally poor.

[11] The defendant argues that the plaintiff should not be believed when she describes her injuries. While I accept the defendant’s submission that Ms. Randhawa’s evidence must be carefully assessed, I do not find her to be a witness who engaged in deliberate falsehoods or gross exaggerations about her symptoms.

2. Were Ms. Randhawa's Injuries Caused by the Accident?

[12] The starting point for the analysis on causation is whether the plaintiff’s physical and psychological complaints were essentially the same both immediately before and after the accident. If they were, they cannot be attributed to the defendant's negligence.

[13] I find that in the five to six months before the 2003 accident, Ms. Randhawa’s symptoms from the 1996 accidents had subsided to the point that she was functionally better and no longer seeking medical attention. She continued to have occasional low back symptoms and some headaches, but they were manageable, did not require medical treatment, and were not interfering with her ability to work and to function generally. I base this finding on the following evidence. First, the medical records of Dr. Chin, the plaintiff’s family doctor, which demonstrate that the plaintiff’s last contact with his office occurred on August 23, 2002, with the next visit taking place the day after the motor vehicle accident of February 17, 2003. Dr. Chin’s records also indicate that the last prescription he wrote for the plaintiff for pain relief medication was in August of 2002.

[14] Second, the Medical Services Plan of British Columbia ("MSP") claims history shows that the plaintiff sought regular and generally monthly medical attention up to August of 2002, including visits to general practitioners, psychiatrists and pain specialists. In contrast, there is a complete absence of MSP claims from August 30, 2002, to February 14, 2003, when a visit to Dr. Tang at a walk-in clinic took place some three days before the motor vehicle accident. There is no mention in Dr. Tang's medical record that Ms. Randhawa reported lower back pain at that time. Based on the agreement of counsel and in accordance with Seaman v. Crook, 2003 BCSC 464,14 B.C.L.R. (4th) 132, I rely on this record as evidence that Dr. Tang recorded on that date that Ms. Randhawa’s reported concerns related to vertigo and recurrent flu.

[15] Third, Ms. Randhawa had significant depression following her 1996 motor vehicle accidents, and was hospitalized in February of 2002 for nine days. But Ms. Randhawa had stopped seeing her psychiatrist, and had stopped taking her medication by August of 2002. Ms. Randhawa’s psychiatrist had recommended further follow-up and ongoing medication, but it appears that Ms. Randhawa declined to follow that advice.

[16] Fourth, prior to the accident, Ms. Randhawa had been employed in a clerical/receptionist position on a relatively continuous basis from the end of December 1999 until just after the accident in February of 2003, with one five-month lay-off commencing in March of 2002.

[17] Fifth, Mr. Gonzalez, who worked with Ms. Randhawa at West Coast Truss, testified that, from August 2002 (when she returned to work at West Coast Truss after the five-month lay-off) until the accident in February of 2003, Ms. Randhawa was happy and bubbly most of the time, with lots of energy. He recalled her heading off to the gym to work out and easily fulfilling her clerical and office duties, including cleaning the office and using the vacuum cleaner.

[18] Sixth, Ms. Randhawa’s daughter, Serena Randhawa, gave evidence that her mother was enjoying the activities around her graduation from high school in June of 2002. She also recalled her mother being an active participant in the packing and moving of the family home over the course of one day on an emergency basis when the purchasers arrived unexpectedly as a result of a mix-up around the possession date.

[19] I find that while Ms. Randhawa was not entirely free of lower back pain prior to the motor vehicle accident, it had receded to the point that it no longer required treatment in the six months prior to the accident, and did not prevent her from working or engaging in social activities. I find that following the accident, Ms. Randhawa’s condition changed significantly, and that she experienced lower back symptoms of a markedly different kind and degree which impaired her ability to work and to function at home and socially. In short, the plaintiff's physical and psychological complaints were not the same both before and after the accident.

[20] The next issue before the Court is whether Ms. Randhawa’s ongoing medical problems were caused by the motor vehicle accident of February 17, 2003, or by her earlier injuries. The issue of causation is to be determined by applying the principles articulated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458 and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

[21] In Athey, the Court held at p. 467:

It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. …As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

[emphasis in original].

[22] In Resurfice Corp., supra, McLachlin C.J.C. wrote at paras. 24-25:

[I]n special circumstances, the law has recognized exceptions to the basic "but for" test, and applied a "material contribution" test. Broadly speaking, the cases in which the "material contribution" test is properly applied involve two requirements.

First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.

[23] In this case, Ms. Randhawa's injury falls within the ambit of the risk created by the defendant’s breach. In addition, it is not possible for Ms. Randhawa to prove, using scientific evidence, that her injuries were caused by the collision of the two vehicles in 2003. All of the experts who testified at trial agreed that there was radiological evidence of spinal degeneration prior to the 2003 accident. All experts agreed that such changes are often asymptomatic. They also agreed that the existing imaging technology cannot detect small tears to the annular fibres that surround the discs in the spine, and that some patients have pain related to musculoligamentous injury that cannot be attributed to "hard, organic pathology" visible on MRI or CT scans.

[24] The injuries sustained by the plaintiff following the 2003 accident fall loosely into three categories:

1. Musculoligamentous injuries to the cervical spine with associated headaches;

2. An L5-S1 disc herniation causing pain into her lower left leg and foot; and

3. Musculoligamentous injury to the lumbar-sacral region of the spine.

[25] The plaintiff acknowledges that the soft tissue injuries to the cervical spine were resolved through physiotherapy and chiropractic treatment within 12 to 15 months of the accident. The L5-S1 disc herniation and associated pain into the lower left leg and foot was first diagnosed by Dr. Mutat in the summer of 2005, although the plaintiff attended at the emergency department to have her lower back pain managed on January 25, 2004, March 18, 2005, and July 6, 2005. The plaintiff underwent discectomy surgery for the disc herniation in April of 2006. It is only the musculoligamentous injury to the lumbar and sacral region of the spine, with radiation of pain into her buttocks and legs, that the plaintiff asserted to be an ongoing problem at the time of trial.

[26] The defendant admitted at trial that "the motor vehicle accident caused mild to moderate soft tissue injury, mainly to the plaintiff's upper body area, resulting in three weeks of total disability and about one year of gradually decreasing motor vehicle accident-related complaints until her condition returned to its pre-motor vehicle accident level" in about June of 2004. Accordingly, the Court must determine causation only with respect to the disc herniation and Ms. Randhawa's back pain after June of 2004.

[27] Dr. Hunt is a neurosurgeon who was called by the plaintiff. He was of the opinion that the February 2003 accident contributed to the development of the plaintiff’s disc herniation, which occurred gradually over time. It was his opinion that the disc herniation was caused by small tears to the annular fibres surrounding the disc, which eventually ruptured due to the ongoing stresses from day to day living. He admitted that he could not say what tears were present in the fibres prior to the accident and that everything can contribute to stresses on the spine, including prior accidents. However, he was of the view that because the February 2003 accident was the last major trauma before Ms. Randhawa experienced the disc herniation, it was a significant contributor to that problem.

[28] Dr. Hunt agreed on cross-examination that lifting of file boxes by the plaintiff when she was at work on March 24, 2003, which resulted in back stiffness and a visit to the emergency room, would also be a contributing factor because tears, once they begin, get worse with everyday activity.

[29] Dr. Hunt attributed the plaintiff’s lower back problems to a significant ongoing facet joint problem triggered by the motor vehicle accident.

[30] The plaintiff also called Dr. Hershler, a specialist in physical medicine and rehabilitation. Dr. Hershler was of the view that the plaintiff’s disc herniation resulted from tears to the annular fibres which occurred at least in part from the motor vehicle accident of February 2003. In his opinion, the pre-existing injuries to the spine from the previous motor vehicle accidents and the degenerative changes due to aging were rendered symptomatic and debilitating by the accident. It was his opinion that "[t]his accident made a difference in a vulnerable spine". Dr. Hershler agreed on cross-examination that all of the plaintiff's previous accidents and the activities of daily living could have affected the spine, but he maintained that the February 2003 accident was a contributing factor both to the facet joint injury and to the disc herniation that was diagnosed in 2005.

[31] Dr. Hershler did not find the plaintiff to be exaggerating her pain symptoms. He found her pain behaviour to be in keeping with his physical findings.

[32] Dr. Sovio, an orthopaedic surgeon, testified on behalf of the defence. He found there was no objective evidence of ongoing injury to explain the plaintiff’s ongoing pain and also found a number of "Waddell signs", which he described as complaints that are not anatomically-based. He was therefore of the opinion that factors other than physical ones were affecting the plaintiff’s presentation.

[33] Dr. Jones, a neurologist, was called by the defence. He examined Ms. Randhawa in 1998 following the earlier car accidents, and again in 2006, and found that there was not much difference in terms of hard physical findings of a neurological nature between the two exams. The only organic change he found was an absent left ankle reflex which related to the S-1 nerve root and disc herniation. However, on cross-examination Dr. Jones agreed that pain can occur without hard organic signs. Dr. Jones accepted that the plaintiff may well have had a soft tissue injury from the 2003 accident, but he was of the view that it should have resolved, rather than become worse. On cross-examination he acknowledged that, as reported in a 2005 medical journal, some patients with soft tissue injuries deteriorate over time, and that this had been his experience in practice, although he stated that the deterioration in those cases was not due to the soft tissue injury, but rather to psychological and other physiological factors.

[34] With respect to the disc herniation, Dr. Jones acknowledged that the sharp leg pain Ms. Randhawa was experiencing in 2005 and 2006 was due to S-1 nerve root irritation, but because it came on two and a half years after the February 2003 accident, he was of the view that it was probably not causally related. However, on cross-examination he agreed that a patient can have a remote injury to a disc and years later the disc can rupture, which is something he has seen in practice. He agreed that the reason he gave the opinion that the motor vehicle accident in 2003 was not the cause of the disc rupture was simply the lack of a temporal relationship.

[35] Dr. Clement is a radiologist who was called by the defence. He reviewed the pre and post accident imaging studies of the plaintiff's spine and concluded that the imaging data did not support substantive anatomical changes in the lumbar spine between February of 1997 and August of 2003. He therefore concluded that "there was no imaging evidence to suggest any substantive anatomical change in the lumbar spine secondary to the motor vehicle accident".

[36] With respect to the disc herniation, Dr. Clement was of the view that a disc protrusion is the result of the wear and tear of a lifetime, and that it was impossible to attribute it to a particular car accident, especially where the pre and post accident scans show no anatomical change. On cross-examination, Dr. Clement acknowledged that CT and MRI scans cannot pick up microscopic tears to the annular fibres that are evident in pathological studies on cadavers.

[37] The anatomical evidence relied on by the medical experts called by the defence is not inconsistent with the facts found by the plaintiff’s experts. All of the experts agreed that there was anatomical evidence of a disc herniation, but no marked anatomical changes evident in imaging studies to explain the ongoing pain in the lumbar region. After listening to all of the expert testimony, and in particular taking into account the defence experts’ focus on the lack of hard organic findings and their acknowledgement on cross-examination that small tears to the annular fibres surrounding the disc cannot be picked up on MRIs, that ruptures can occur at times remote from the insult to the disc, and that patients can experience pain in the absence of hard anatomical changes, I accept the evidence of the plaintiff’s physicians and find that it is more probable than not that the February 2003 accident was a contributing cause to both the disc herniation and the ongoing musculoligamentous lumbar injury.

[38] I accept the evidence of Dr. Hunt and Dr. Hershler that Ms. Randhawa’s earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find that the defendant’s negligence was the only cause of the plaintiff’s problems after February 17, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries.

Farrant v. Laktin

[39] After completion of the trial, defendant’s counsel brought to the Court’s attention the case of Farrant v. Laktin, 2008 BCSC 234, which he asked the Court to consider in relation to the issue of causation. In that case, Slade J. found that the plaintiff had failed to prove that his pain symptoms were caused by the motor vehicle accident, rather than by his pre-existing condition. Having reviewed the reasons for judgment in Farrant, I am of the view that the case is distinguishable from the case at bar.

[40] In Farrant, the plaintiff was involved in a low speed motor vehicle accident three and a half years before trial. The plaintiff had a long history of symptomatic degenerative disc disease including a discectomy and laminectomy in 1977, with periods of time off work, including six to eight months off when his back went out while he was re-stocking windows at work. The plaintiff steadily improved in the five months after the accident, reporting to his doctor that he was 80-90% recovered. About six months after the accident in that case, the plaintiff began a new position which involved heavy lifting, and his back pain gradually increased.

[41] In contrast, in the case at bar, Ms. Randhawa had ongoing lumbar pain following the accident, and the medical experts agreed that the degenerative changes evident in her spine before the February 2003 accident were of a minor nature consistent with the normal aging process. Further, the Court in Farrant found at para. 104 that the plaintiff’s medical expert provided "no explanation of the relationship between physical exertion, such as lifting, and increased pain emanating from the central nervous system", and also found that the expert's evidence did "not explain the change over time in the intensity of the plaintiff’s back pain." Slade, J. accepted the evidence of the defendant’s expert, which took into account and explained both "the post-accident improvement and subsequent worsening of the plaintiff’s condition" (para. 107). The Judge accepted that expert’s opinion that it was the plaintiff’s pre-existing degenerative disc disease in conjunction with the exertion of repeated heavy lifting at work, that were the causes of his pain symptoms. The Judge also noted that both experts were orthopaedic specialists, neither of whom "professed specialized knowledge of neurology" (para. 87). In contrast, Dr. Hunt was a neurosurgeon, and both he and Dr. Hershler, a physical rehabilitation specialist, provided an explanation for the delay between the 2003 accident and the onset of the disc herniation more than a year later.

Vulnerable Plaintiff and Measureable Risk of Injury Absent Accident

[42] I have already found that Ms. Randhawa’s earlier problems had largely resolved about six months before the accident in question. It follows that this is a case for the application of the "thin skull" principle. The law is well settled that the wrongdoer must take his victim as he finds her: Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.) at p. 399. In this case, the weakness or latent susceptibility of the plaintiff was quiescent but was activated into being as a result of the tortious conduct of the defendant: Pryor at pp. 399-400.

[43] It was apparent from Ms. Randhawa's testimony and from her medical history, in particular her psychological history, that she does not deal well with the challenges posed by pain and physical limitations. She tends to fixate on her pain and problems. This was described by various experts as "pain syndrome" or "pain behaviour". In any event, this too falls within the thin skull rule. The plaintiff was emotionally and physically fragile at the time of the accident, and the defendant must take the plaintiff as he finds her.

[44] Having concluded that the subject accident was a contributing factor to both the disc herniation and Ms. Randhawa’s facet joint and musculoligamentous problems, I must consider whether there was a measurable risk that the plaintiff, being psychologically and physiologically vulnerable, would have experienced these problems at some point even if the 2003 motor vehicle accident had not occurred.

[45] Ms. Randhawa had a pre-existing facet joint injury which had been diagnosed by Dr. Crosby prior to the February 2003 accident. She also had degenerative age-related changes to her spine. While I have found that the 2003 motor vehicle accident caused those latent problems to become symptomatic, I agree with the defendant’s submission that there was a measurable risk, even without the 2003 accident, that Ms. Randhawa’s spinal health would have been affected by the stresses of daily living.

[46] The plaintiff is only entitled to be put into the position she would have been in but for the accident, and is not to be compensated in a manner that would put her in a better position. In accordance with Athey at p. 478, if there is a realistic chance that the disc herniation and facet joint problems "would have occurred at some point in the future without the accident, then a reduction of the overall damage award" should be considered, "because the plaintiff is to be returned to his 'original position' ", which might have included such a risk occurring in the future even without the car accident.

[47] Ms. Randhawa had some symptoms associated with facet joint problems and disc pressure more than five years following the 1996 motor vehicle accidents. Those symptoms had been largely quiescent for only six months before the motor vehicle accident in issue. As Dr. Hunt and Dr. Hershler testified, Ms. Randhawa had a vulnerable spine before the 2003 accident because of the five previous accidents and some degenerative changes. Dr. Hershler acknowledged in cross-examination that disc herniations occur as a result of "an evolutionary process". In his view, all of the six accidents and the stresses of daily living weakened the spine to the point that "a last straw" occurred and the disc ruptured. Dr. Hershler agreed that it was really the result of an "accumulation of stress". Dr. Hunt testified that "everything we do can contribute to a disc herniation, making a bed, twisting, or picking up something heavy like a box". On the basis of this evidence, I find that there was a significant risk that the herniation would have occurred at some point in the future from other spinal stresses.

[48] With respect to the soft tissue and ligamentous injury to the sacrum and lumbosacral junction, Dr. Hershler noted there were pre-existing injuries from earlier accidents which were aggravated and made symptomatic by the sixth motor vehicle accident. Dr. Hunt stated in his evidence that Ms. Randhawa’s pre-existing degenerative changes rendered her more vulnerable to re-injury. In addition, as Ms. Randhawa’s counsel submitted, Ms. Randhawa is a person who "was emotionally fragile" and tended to react to disability and dysfunction by focusing and ruminating on it. I find the plaintiff to be a person with a low tolerance for pain and physical limitations who is likely to be easily affected by life’s difficulties. I find the risk that the pre-existing condition of Ms. Randhawa’s spine and her psychological fragility would have detrimentally affected her in the future, regardless of the defendant’s negligence, to be 40%.

Adverse Inference

[49] The defendant argued that the Court should draw an adverse inference against the plaintiff for her failure to call her general practitioner, Dr. Chin, who has treated Ms. Randhawa since 1990. The defendant argued that Dr. Chin’s evidence would have addressed a number of salient points including his prescription of pain medication, his expert opinion on the causation of the eventual disc herniation, and his expert opinion on the relationship between her current complaints and the subject motor vehicle accident. The defendant argued that Dr. Chin’s voluminous clinical records were no substitute for an expert report or his viva voce evidence.

[50] The defendant also argued that an adverse inference should be made against the plaintiff for her failure to call Dr. Mutat, the surgeon who actually observed and treated the disc herniation.

[51] The decision to draw an adverse inference is a matter of the Court’s discretion: McTavish v. MacGillivray (1997), 38 B.C.L.R. (3d) 306 (S.C.) at para. 14. In this case, I decline to draw such an inference in relation to the plaintiff’s failure to call Dr. Mutat and Dr. Chin. Dr. Chin, as a general practitioner, would not be in a position to give a definitive opinion on the causation of the disc herniation, or the extent to which the plaintiff’s current symptomology is attributable to the last accident, as opposed to the earlier ones. While Dr. Mutat treated the actual disc herniation, the fact that a herniation occurred was not in dispute. It is not apparent to the Court what particular advantage Dr. Mutat would have in relation to diagnosing the reason for the disc herniation, and again I decline to draw an adverse inference against the plaintiff for failing to call that doctor.

Damages

[52] While Ms. Randhawa’s musculoligamentous symptoms in her lower back continue, the symptoms associated with the disc herniation were largely resolved by the discectomy surgery conducted by Dr. Mutat in April of 2006. Although Ms. Randhawa did not distinguish in her testimony between the nerve root pain into her left leg and foot which was apparently addressed by the surgery, and the radiation of pain from the lumbar region of her back into her buttocks and leg (referring to both as pain into her legs), based on the medical evidence I find that the nerve root pressure was alleviated by the surgery, and that the radiation of pain which Ms. Randhawa continues to experience is due to the facet joint and musculoligamentous injuries to her back.

Non-Pecuniary Damages

[53] The plaintiff relies on a series of cases where damages of $65-85,000 were awarded for pain and suffering for comparable injuries and pain lasting for about five years from the date of the accident to trial. In contrast, the defendant relies on cases in which the soft tissue injury resolved in a year to a year and a half, and submitted damages of $10-20,000 would be appropriate.

[54] The plaintiff continues to have intermittent back pain, she has had such pain since the February 2003 accident, and she will continue to have some symptoms into the future. Having reviewed the authorities provided to the Court by both the plaintiff and the defendant, I find that Ms. Randhawa’s injuries are more like those described in the plaintiff’s authorities. After taking into account Ms. Randhawa’s tendency to over emphasize her bad days, I assess the plaintiff’s non-pecuniary damages at $65,000.

Past and Future Wage Loss

[55] The defendant concedes that due to soft tissue injury the plaintiff was off work for three weeks at a loss of $500 per week. After that three week period, Ms. Randhawa returned to work until April 8, 2003. According to the record of employment prepared by her employer, she was laid off on that date due to a shortage of work. At trial, the plaintiff said that she stopped working because of the pain in her back, but on examination for discovery she volunteered that she had been laid off:

Q And then you had your car accident and you took some time off?

A Yes.

Q About three weeks?

A That’s right.

Q Then you went back, correct?

A That’s right.

Q Why did you go back?

A Why did I go back? Like, I was thinking my work was really busy and they need me and I said I’ll try to go back if I can do it.

Q Did you feel a little bit better at that time?

A No, I was in pain. I was still, like, you know. That was choice to go back. I was not feeling that good.

Q And you worked for about -- you worked for about a month?

A That’s right.

Q And then you stopped again?

A I laid off.

Q You were laid off?

A Yeah.

Q Why were you laid off?

A Shortage of work or something.

Mr. Gonzales, who worked with the plaintiff, testified that a receptionist was hired to fill in for Ms. Randhawa after she left, but I find that Ms. Randhawa was laid off in April 2003. I also find, based on her previous lay off of five months in 2002, that it is likely that Ms. Randhawa would have found other work by October 1, 2003, but for the injuries sustained in the motor vehicle accident.

[56] At the time of the accident, Ms. Randhawa was earning $2,000 a month as a receptionist, and had been working full-time for more than three years. She has not worked since April of 2003. There was no evidence of any efforts to return to work or to retrain following the accident, and Ms. Randhawa acknowledged that she did not try to do so. Dr. Hershler opined in his report of September 7, 2007, that Ms. Randhawa was not able to return to work, but I do not accept that she was then or is now unable to work at all. Ms. Randhawa is taking medication to control her pain, and I have found that her ongoing problems following the disc surgery were intermittent rather than persistent. When asked to explain Ms. Randhawa’s limited functioning in his office as opposed to on the video, Dr. Hunt on cross-examination stated that patients often do not take their medication before a medical examination so they appear "at their worst" or "real" level of functioning. In the circumstances, I am of the view that the plaintiff could have worked part-time following the resolution of her disc herniation and recovery after the surgery in April of 2006, which I estimate to be from July 1, 2006. I find that the plaintiff is likely to improve once the litigation is behind her and she is less focused on her pain and physical problems. Plaintiff’s counsel in his submissions argued that the plaintiff was still unable to work, but that it was likely that her "condition will either improve, or be more effectively managed and borne by her, to allow her to return to some form of employment in the future". I agree with that submission generally although not with the date at which Ms. Randhawa can return to full-time work.

[57] I award the plaintiff compensation for past income loss of $500 per week for three weeks immediately following the accident; $2,000.00 per month from October 1, 2003, to June 30, 2006; and $1,000 per month from July 1, 2006 to March 31, 2008. I make no award for future wage loss. Counsel have agreed that welfare payments received by Ms. Randhawa, as well as income tax and employee contributions, should be deducted from the award of damages for wage loss, and that they are in a position to calculate those deductions.

[58] Total damages for past wage loss before such deductions are $88,500 calculated as follows:

Three weeks off work immediately

following the accident: $ 1,500

October 1, 2003, to June 30, 2006: $66,000

July 1, 2006, to March 31, 2008: $21,000

TOTAL $88,500

Special Damages

[59] The parties agreed that the plaintiff incurred special damages of $3,118.

Future Care Costs

[60] Dr. Hershler recommended Pulsed Signal Therapy at a cost of $3,000, but there was no evidence that the plaintiff intended to engage in that therapy, which has been offered to her and recommended by Dr. Hershler since 2004. The plaintiff also asked for 35 physiotherapy visits at $30 per visit, but there was no medical evidence to support this treatment and Dr. Hershler in his September 2007 report actually recommended against more physiotherapy. I make no order for those expenses.

[61] Ms. Randhawa is currently taking Gabapentin which costs $2,500 per year, and Amitirptyline, at $64 per year. These medications were prescribed by Dr. Mutat, and Dr. Hershler recommended that pain medication continue. The plaintiff also acknowledged that she would be seeking further assistance from Dr. Mutat in hopes of resolving her current situation to some extent. Recognizing that it cannot be predicted with any certainty how long or with what frequency Ms. Randhawa will continue to need Gabapentin in particular, I award $5,000 towards the cost of all future medication expenses.

Failure to Mitigate

[62] The defendant argued, although not vigorously, that the plaintiff failed to mitigate her damages because she did not undergo chiropractic or physiotherapy treatment following her disc surgery in 2006, and because she failed to engage in aquatic exercises as recommended by Dr. Hunt. The defendant also raised the issue of the plaintiff’s failure to engage in Pulsed Signal Therapy as recommended by Dr. Hershler, even though the defendant took the position with Dr. Hershler on cross-examination that the therapy was unproven.

[63] Based on all of the evidence, I am satisfied that Ms. Randhawa made reasonable efforts to mitigate her damages. The video surveillance evidence demonstrated that she walked regularly for exercise as directed by her physician. She testified that she continued to stretch and do exercises. Following the accident, she attended physiotherapy for 37 sessions, and received 46 chiropractic treatments. In addition she underwent surgery and a long course of injections into her spine.

Summary of Damages (Before Reduction to Reflect 40% Risk
of Problems Absent the Accident)

Non Pecuniary: $ 65,000

Special Damages: $ 3,118

Past Wage Loss: $ 88,000

Cost of Future Care: $ 5,000

TOTAL $161,618

Reasonableness of Award

[64] In accordance with Ruiz v. Bouaziz, 2001 BCCA 207, 150 B.C.A.C. 161, paras. 76 and 77, I next assess the overall award for reasonableness. In all of the circumstances, I see no need to either reduce or inflate the award which, at 60% of $161,618, comes to $96,970.

Costs

[65] If counsel cannot agree on costs or on the appropriate deductions to be made from the award for past income loss, they are at liberty to speak to those issues.

Fenlon, J.

Citation:	*Randhawa v. Hwang,*
	2008 BCSC 435