2008 BCSC 483 Jacobs v. McLaughlin

Before: The Honourable Mr. Justice Metzger

Reasons for Judgment

Counsel for the Plaintiff:	M. H. Zoriak and R. Cameron
Counsel for the Defendants: Jean McLaughlin and Marianne Meehan	M. J. Hargreaves
Counsel for the Defendant: Anna Moyer	C.P. Collins
Date and Place of Trial/Hearing:	20071015-20071019; 20071022-20071026; 20071029-20071102; and 20071105-20071106
	Victoria, B.C.

LIABILITY

[1] The plaintiff Jacobs brought separate actions against the defendants McLaughlin, Moyer and Meehan and in each case liability was admitted. The actions came to trial together for assessment of damages.

[2] The defendant McLaughlin admits liability for the motor vehicle accident on March 16, 2003 and that the plaintiff suffered injury.

[3] The defendant Moyer admits liability for the motor vehicle accident on January 25, 2005 and that the plaintiff suffered injury.

[4] The defendant Meehan admits liability for the motor vehicle accident on November 29, 2005, but does not admit the plaintiff suffered any injury from the impact.

CHANGE IN PLEADINGS

[5] The Statement of Claim as amended on October 26, 2006, set out that the plaintiff was diagnosed with multiple sclerosis (“MS”) about five months after the first collision in March 2003. It was stated that the plaintiff suffered a significant and disabling relapse of her MS about May 2006, which was about three to four months after the last collision in late November 2005. The Court was asked to determine whether the plaintiff’s underlying MS condition was aggravated by the connective tissue injuries sustained in the collisions. The plaintiff’s position was that the MS condition was accelerated by trauma and stress resulting from the collisions. The defendants denied this allegation.

[6] On the first day of trial, the Court was advised the plaintiff was abandoning the allegation that the motor vehicle accidents played a role in the causation, namely the triggering, aggravation or acceleration/progression of the plaintiff’s MS. The concept of a synergistic or compounding effect of the MS on the soft tissue injuries was not foreclosed.

[7] Thus, the court is to determine:

1. What injuries, if any, did the plaintiff suffer in each motor vehicle accident?

2. What has been and continues to be the impact of the plaintiff’s connective tissue injuries on her functioning, having regard to the plaintiff's MS related difficulties?

3. What is a fair assessment of the plaintiff’s damages?

[8] The plaintiff seeks the following global relief:

Special Damages	$ 3,550
Past Wage Loss	15,000
Future Cost of Care	20,000
Future Loss of Earning Capacity	65,000
Pain and Suffering	120,000
TOTAL:	$223,550

INTRODUCTION

[9] The plaintiff testified she was healthy, happy and enjoyed all facets of life prior to her motor vehicle accidents. She was enrolled at Camoson College, taking business and accounting courses. She worked as a barista for approximately three years between 2000 and 2003 at the Second Cup Café in Langford, British Columbia. She was active in hiking, swimming, aerobics and Latin dance. She played several music instruments including the marimba, other percussion instruments and piano. She was a hobby artist.

[10] Ms. Jacobs was described as energetic, outgoing, ambitious, smart, engaging, jovial, and intelligent. Ms. Jacobs maintains she was in excellent health, both physically and mentally, except for neurological complaints such as numbness in her hands, some weakness and an episode of fainting in early February 2003.

[11] In May 2006 she was hospitalized at Victoria General for an episode of fully disabling MS. Dr. Devonshire, an expert witness whose evidence is discussed in detail below, stated that MS is an autoimmune disease, where "[t]he immune system itself is attacking the coating on the nerves". Apparently, lesions or plaques in the brain can be seen using an MRI, but do not necessarily correlate to the level of symptoms a person with MS will experience. Dr. Devonshire described the symptoms of MS as including issues of cognitive impairment, fatigue, balance, dizziness, headaches, neuropathic pain, coordination problems, vision problems, as well as weakness, burning, tingling and electrical sensations. The evidence indicates that the symptoms of MS often fluctuate widely in a patient such as the plaintiff. Dr. Devonshire stated that MRI images show the disease activity does not cease, even in periods of remission.

[12] During the period of May 5, 2003 to June 20, 2003 the plaintiff attended Camosun College taking business administration and e-business courses and receiving grades of A and A+ respectively. The plaintiff resumed her education program with further courses from September 2, 2003 to December 6, 2003 in business administration/managerial accounting. From January 5, 2004 to April 8, 2004, she also took courses in business administration in which she managed to maintain B- and B grades. A diploma in Business Administration was granted, providing in part a foundation for her later and more difficult academic pursuits with respect to an MBA.

[13] The plaintiff was employed at Triumf Nuclear Physics Laboratory at the University of British Columbia, Vancouver, ending April 2003, and then at Hutcheson & Co., an accounting firm in Victoria, ending May 2004. In addition, the plaintiff established her own business, City Cat Business Solutions, as of July 1, 2003 and she worked various jobs at coffee shops, though the actual dates of employment were not established. The plaintiff attended and was an active participant in the Juan Air flight school in May and June 2004. She attended ground school, followed by in-flight training. The plaintiff received training in the following subjects: theory of flight/aerodynamics; flight instrumentation; Canadian aviation regulations and licensing; flight operations; engines and airframes; aircraft systems; human factors of physiology; pilot decision making; meteorology theory; meteorology; decoding meteorology; navigation theory; radio electronic theory; and generally matters pertaining to becoming a pilot.

[14] There is no dispute that throughout 2004 and 2005 the plaintiff spent long hours at the computer with questionable posture due to her chair and desk arrangement.

[15] Ms. Jacobs saw Dr. Lis Bateman in February 2003, when she was experiencing what were later discovered to be the early stages of an aggressive form of MS. When she saw Dr. Bateman, Ms. Jacobs had fluctuating symptoms of significant fatigue, dizziness, walking into walls, and frequent fainting and falls that could cause or aggravate soft tissue injuries.

THE MOTOR VEHICLE ACCIDENT OF MARCH 16, 2003

[16] On March 16, 2003 (accident #1), the seat-belted plaintiff and sole occupant of a 1981 Toyota Tercel was rear ended at a low speed while stopped at a traffic light to make a left turn. Her vehicle was pushed forward but the damage to both vehicles was minimal.

[17] Ms. Jacobs stated she recalls the impact of the March 16, 2003 accident and that her next recollection is of sitting in the intersection. At trial she described that she momentarily lost consciousness and “saw stars”. Ms. Jacobs testified that she immediately experienced pain in her neck, back and head. At no point did she say she hit her head.

[18] The plaintiff was immediately able to drive her vehicle into a lane to avoid blocking traffic and to avoid further danger to herself or others. She was able to accurately exchange information with the other driver without any apparent difficulty.

[19] There is nothing in the evidence to suggest that the plaintiff suffered from any degree of confusion following the collision, that she suffered from amnesia regarding events immediately prior or subsequent to the trauma, or that she complained of significant concentration or memory problems. There is no indication the plaintiff had any brain injury symptoms from the collision. Neither the police nor an ambulance attended. I am satisfied that the accident was of minimal impact.

[20] Ms. Jacobs saw Dr. Menzies on the day following the collision, March 17, 2003, complaining of headaches, sore neck, sharp pain in her shoulders and pain shooting down to her low back. Dr Menzies noted “no loss of consciousness” in respect of the collision. Two days later, Ms. Jacobs saw Dr. Campbell in Victoria at St. Anthony’s clinic, complaining of back pain.

[21] Despite the plaintiff’s previous complaint of dizziness to Dr. Menzies on February 11, 2003, she made no complaint with respect to dizziness to Dr. Campbell.

[22] The plaintiff did not call the medical experts who saw her following this accident. The defence called the treating general practitioner, Dr. Ida Graf-Blaine and tendered the record of the treating specialist, Dr. Kemble.

[23] No doctor supported the plaintiff's allegations of mild traumatic brain injury resulting from accident #1.

[24] The plaintiff testified that her current recollection is that she experienced unremitting headache, neck pain and back pain throughout the time up to and including the second accident.

[25] She testified that these symptoms made it impossible or very difficult for her to sit still at her desk, whether in the classroom, studying at home, or in an accounting office. She says that the discomfort and pain were so severe that she got very little sleep and was continually tired. She says that she felt that her symptoms impacted her ability to think. She says that her discomfort was so great that she had to quit flying school in the summer of 2004.

[26] There is no evidence that the doctors who treated her prior to the diagnosis of MS suggested that the plaintiff required neuropsychological testing, as one might assume would accompany a mild traumatic brain injury, which manifests at its worst at the outset.

[27] The principles enunciated by McEachern C.J. in Price v. Kostryba (1982), 70 B.C.L.R. 397 (B.C.S.C.) at p. 399, are applicable to the case at bar. Repeating his observations in Butler v. Blaylock (7 October 1981), Vancouver B781505 (B.C.S.C.), McEachern C.J. stated as follows:

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

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.

[28] What objective evidence has the plaintiff adduced of the injuries arising out of the March 16, 2003 accident? Were any of these injuries still present at the time of accident #2 on January 25, 2005? (See Long v. Thiessen (1968), 65 W.W.R. 577 (B.C.C.A.).)

[29] The plaintiff attended upon nine doctors for a total of 12 appointments between March 16, 2003 and September 22, 2004, inclusive. She provided records relating only to the first two visits with Dr. Menzies and Dr. Campbell.

[30] On the plaintiff's March 17, 2003 medical chart some of the symptoms noted are consistent with a whiplash injury sustained the day before. The plaintiff complained of headache, neck pain and back pain. The defendant McLaughlin admitted her negligence caused some injury to the plaintiff.

[31] The plaintiff says that on March 19, 2003, she was suffering from headache, neck pain, sleep disruption and low back pain. Her friend, Ms. Orten, confirmed this and added that the plaintiff appeared tired, although I have found that Ms. Orten's evidence lacked objectivity. Dr. Campbell’s chart for March 19, 2003 shows only a complaint of low back pain, with pain radiating into the left anterior thigh.

[32] The plaintiff could not specifically recall Dr. Campbell, but she did recall that she attended St. Anthony’s Clinic on or about March 19, 2003, and that the doctor there told her that she should be fine in “one to two weeks”.

[33] The defendant McLaughlin took no issue with the symptoms reflected in the March 17 and 19 charts of Drs. Menzies and Campbell.

[34] The plaintiff has significant memory problems. Unbeknownst to the plaintiff and her then-treating doctors, the plaintiff was already suffering from remitting/relapsing MS which included her fluctuating symptoms of significant fatigue, dizziness, walking into walls, and frequent fainting and falls.

[35] I am troubled that the plaintiff called no attending doctors and produced only the two charts referred to above for the time between the first and second accidents. I am concerned that if her symptoms were as persistent as she claims they were, it seems logical that she would have mentioned her symptoms to all of her doctors. Such symptoms recorded over this period of time would have objectively demonstrated a consistent pattern of complaints.

[36] Dr. Graf-Blaine, one of the two witnesses called by the defendant, took a detailed intake chart of Ms. Jacobs on June 26 and 30, 2003 and completed a physical examination on July 15, 2003. Dr. Graf-Blaine also saw Ms. Jacobs on January 13, February 1 and 8, 2005. The charts indicate that Dr. Graf-Blaine was an attentive and thorough physician. I reject the plaintiff's evidence that Dr. Graf‑Blaine treated her in a humiliating fashion and did not pay attention to her complaints. Whenever there is a conflict in the evidence between Ms. Jacobs and Dr. Graf-Blaine, I accept the doctor’s testimony.

[37] The doctor’s June 30, 2003 chart indicates that Ms. Jacobs reported multiple paresthesias, back pain, dizziness, walking into walls, vision shifts, a lack of ability to concentrate, memory loss, a decrease in her usual interests, frequent “passing out” and fatigue. Ms. Jacobs stated then, as she does now, that she believed the motor vehicle accident of March 16, 2003 was the cause of all her difficulties.

[38] Dr. Graf-Blaine referred Ms. Jacobs to Dr. Kemble, a specialist in neurology.

[39] The plaintiff's medical records from the summer of 2003 contain two references to back pain and headache.

[40] In Dr. Graf-Blaine's June 30, 2003 referral letter to Dr. Kemble, she noted the plaintiff had “back pain”. Dr. Graf-Blaine did not specify the area of the back and it is apparent that this was one of a litany of complaints being passed along to Dr. Kemble for his assessment and review.

[41] Dr. Kemble met with Ms. Jacobs on August 18, 2003. She reported to him that two months prior to their meeting she had developed symptoms including numbness affecting the right half of her face and tongue, difficulties in word-finding, dizziness not necessarily occurring with change in position and difficulty in concentrating because of problems with her memory. In addition, she complained that she had started to feel generally fatigued. At the time the plaintiff saw Dr. Kemble, however, she felt that many of her symptoms had cleared and some had diminished over the week before their meeting.

[42] The plaintiff told Dr. Kemble that her headaches had cleared a week previous and that the dizziness was still occurring occasionally and caused objects in a room to appear to move around. Dr. Kemble noted as part of her history that the plaintiff at that time had “no pain in the extremities or spine”. This notation is inconsistent with the plaintiff’s present representations that her headaches and other back pain were continuous and disabling since the first motor vehicle accident. It is an inconsistency that was never explained by her medical experts.

[43] On examination, Dr. Kemble noted that the plaintiff had full range of cervical movement without any significant cervical tenderness and she had no other spinal tenderness. In addition, she achieved straight leg raising to 80 degrees bilaterally. Neurologically, she was deemed to be normal other than having a slight impairment of the right sensation affecting the right hemiface and tongue. I note that straight leg raising to 80 degrees took place in the absence of pain in the spine. There is no pre-motor vehicle accident record that can be used as a touchstone for comparison purposes to establish what was “normal” for the plaintiff.

[44] Dr. Kemble felt it was possible that these symptoms were stress related although he suspected that Ms. Jacobs could be suffering from demyelination or an episode of a minor vertebral artery dissection. He then sent her for an MRI which made it clear that the plaintiff did have demyelination typical for MS. For whatever reason, the plaintiff appears not to have been advised of the results of the MRI and she went about her activities in light of the then remitting MS symptoms. Ms. Jacobs was ultimately diagnosed with MS in May 2006.

[45] On January 13, 2005, Ms. Jacobs reported to Dr. Graf-Blaine for another complete physical. She told the doctor that she was going to a physiotherapist for back pain, but there were no other complaints.

[46] Ms. Jacobs testified that as her musculoskeletal pain become worse in early 2004, her then boyfriend, Mr. David Jarvis, encouraged her to try alternative treatments. Mr. Jarvis took Ms. Jacobs to Dr. Willo Jordan-Walker on February 19, 2004. At that time, Ms. Jacobs was complaining of acute back pain as well as shoulder pain.

[47] Dr. Jordan-Walker, a doctor of traditional Chinese medicine, treated the plaintiff on February 19, March 16, September 9 and November 24, 2004. He was not called as an expert witness. He stated that the plaintiff and David Jarvis completed the history sheet that he identified as Ms. Jacobs' chart.

[48] Someone wrote on the history sheet that the plaintiff was experiencing “neck” pain. It was then crossed out. The plaintiff and the doctor were unable to clarify who had done that. Mr. Jarvis paid for the treatments but did not testify.

[49] Dr. Jordan-Walker could not recall the plaintiff, but from the chart he confirmed that the plaintiff told him she had low back complaints. This was almost a year post‑accident and at a time when she was complaining of dizziness, decreased energy, tingling and numbness, which were later determined to be symptoms of ongoing MS activity.

[50] Dr. Jordan-Walker treated Ms. Jacobs only four times for these “acute” complaints. Moreover, he stated that the plaintiff's symptoms appeared to migrate through different parts of her body like “moving wind”. He acknowledged that this “moving wind” meant that one day the pain could be in the back, the next in the neck or legs or even in the feet.

[51] Dr. Jordan-Walker had no objective evidence of the plaintiff’s symptoms as he relied on the chart authored by the plaintiff and Mr. Jarvis.

[52] The plaintiff’s present complaint of unremitting headache and neck pain in December 2004, having continued since March 16, 2003, is also inconsistent with the evidence of her own physiotherapist.

[53] While the plaintiff advised or led her various medical practitioners to believe that she had been taking physiotherapy from soon after accident #1, it is clear that the physiotherapy did not begin until December 15, 2004, with Alan Jones at the Fort Royal Physiotherapy Clinic in Victoria when she suffered an episode of “acute low back pain with tenderness and spasm”.

[54] Mr. Jones made reference not just to tenderness in the plaintiff's back but to "spasm centered across the lumbrosacral area and difficulty maintaining set position". These problems required hot packs, ultrasound, massage and specialized back care instruction regarding appropriate exercise. I accept Mr. Jones’ testimony that if there were no narrative comments in one of his noted attendances, there was no change as compared to the last narrative notation. Despite numerous attendances, there are no narrative notations between December 15, 2004 and January 27, 2005.

[55] The complete lack of physiotherapy prior to December 15, 2004 starkly contrasts with the intensive, almost daily treatment obtained after December 15, 2004. The plaintiff attended physiotherapy treatments on December 20, 21, 22, 23, 24, 29, 30 and 31. She continued to be treated on January 4, 11 and 20, 2005, just prior to her second motor vehicle accident. Mr. Alan Jones admitted his notes suggested that as of January 20, 2005, he would have anticipated her return for further physiotherapy.

[56] Ms. Jacobs saw Dr. Peter Rowell at the James Bay Medical Clinic in Victoria on December 23, 2004. His clinical record noted only low back problems complained of by the plaintiff. There is no reference to neck pain, headaches or other symptoms.

EXPERT EVIDENCE OF DOCTOR DEVONSHIRE

[57] Dr. Devonshire is a neurologist and the director of the University of British Columbia MS clinic in Vancouver. She does research, manages the database and has privileges at the Vancouver General Hospital, the UBC Hospital and the G.F. Strong Rehabilitation Centre.

[58] Her report was commissioned in the context of a claim that one or more of the motor vehicle accidents caused, triggered, accelerated or exacerbated the plaintiff’s MS.

[59] As this position was abandoned on the first day of trial, many portions of the report were excised. Thus, the report became largely irrelevant despite the eminence of Dr. Devonshire.

[60] Dr. Devonshire saw Ms. Jacobs on November 16, 2006 and January 15, April 19 and June 21, 2007.

[61] Dr. Devonshire lacked a full medical history of the plaintiff from the time of the first accident. She admitted that such a history would be necessary for her to express an opinion about the existence of soft tissue injuries and their causation. She reviewed medical legal reports but did not review clinical records.

[62] Dr. Devonshire reported that Ms. Jacobs told her that when her car was rear ended in March 16, 2003 she recalled having a cervical strain type injury. Ms. Jacobs reported that she had a brief loss of consciousness but no confusion. Dr. Devonshire did not attempt to confirm this loss of consciousness.

[63] Dr. Devonshire testified that her only concern with the musculoskeletal symptoms displayed by the plaintiff was to filter them out when looking at the plaintiff’s condition. She was focused upon identifying and treating (and expressing an opinion with respect to) the symptoms of MS. Thus, Dr. Devonshire’s report is of no assistance to the Court in a determination of the nature, extent and duration of injuries sustained by the plaintiff in any of the accidents or the prognosis for such injuries.

[64] The plaintiff argues that she is entitled to greater damages than would ordinarily be the case, because of some synergistic or compounding effect between her MS and her soft tissue injuries.

[65] Dr. Devonshire testified that such a possibility exists but she dealt in generalities. Nowhere in her report did she actually say that Ms. Jacobs has suffered or will suffer such a compounding effect.

[66] The extent of Dr. Devonshire’s discussion in her report in this regard is that:

The injuries that are sustained in a motor vehicle accident, particularly many of the soft tissue injuries can cause a worsening of the functioning of a person with multiple sclerosis. ...

[67] Dr. Devonshire went on to say that this worsening was “likely the case for Ms. Jacobs”. This opinion was, however, premised on a single report for a single visit. In her report, Dr. Devonshire wrote:

Ms. Jacobs reported more problems with her soft tissue injury pain and increased stress and illness from the chemotherapy at her last visit.

[68] The doctor’s one observation of an amplification of problems was linked to two causes: soft tissue pain and the effects of chemotherapy.

[69] Dr. Devonshire testified as follows about Ms. Jacobs:

She’s ‑‑ she’s been quite stable since I’ve taken over her care. She has fluctuations depending on how she’s feeling those days, those weeks. So if she has ‑‑ she once had an intercurrent infection, that makes her feel worse. She had stress related to some ongoing pain issues from her musculoskeletal complaints and she functioned a little bit poorly at that time. But overall, I called these fluctuations. Her actual MS fixed deficits have not worsened, it’s possible they’ve improved slightly ...

[70] Thus, the evidence from Dr. Devonshire is that it is possible that soft tissue injuries can be amplified by or can amplify the symptoms of MS. However, in her actual experience as Ms. Jacobs’ treating neurologist, she has witnessed only one episode in which the plaintiff has done “a little bit poorly”, and that episode was as much connected to the impact of a chemotherapy session as it was to any soft tissue injury complaints.

[71] In cross-examination Dr. Devonshire acknowledged that subsequent to the motor vehicle of March 16, 2003, Ms. Jacobs achieved A+ or A grades at Camosun College in Victoria. This appears to be a degree of achievement not consistent with a mild traumatic brain injury or significant soft tissue injury. There was no medical opinion that the plaintiff sustained a mild traumatic injury on the basis of probability. While Dr. Devonshire suggested that there was a possibility that there had been mild traumatic brain injury, she readily admitted that she did not take actual steps to determine whether this was so and considered the matter moot or not testable as the plaintiff’s MS had in the meantime caused obvious brain damage.

[72] I am satisfied that the plaintiff has not adduced sufficient evidence to prove on a balance of probabilities that she suffered some compounding effect between her MS and her soft tissue injuries caused by any of the three motor vehicle accidents.

EXPERT EVIDENCE OF DR. COOK

[73] Dr. Cook has had the greatest involvement of any physician in Ms. Jacobs’ care over the last four and a half years. He filed a written report.

[74] Unfortunately, Dr. Cook did not see the plaintiff until June 3, 2005, more than two years after the first motor vehicle accident and more than four months after the second.

[75] Dr. Cook is an exceptionally busy physician, seeing in excess of 50 patients per day at a walk-in clinic. He obtained the plaintiff's medical records from Dr. Graf‑Blaine, Dr. Brigel and the James Bay Medical Clinic.

[76] He did not obtain, and apparently was unaware of, records from Dr. Menzies, Dr. Campbell and Dr. Smith, all of whom saw the plaintiff in the period between March and June 2003.

[77] Dr. Cook relied solely upon the plaintiff’s self-report, as communicated to him beginning on June 3, 2005. Dr. Cook wrote that the plaintiff reported to him that she had “started physio about 1 yr after accident". The evidence is that she did not receive any physiotherapy treatment until December 15, 2004, some 21 months post-accident.

[78] During cross-examination Dr. Cook accepted that Ms. Jacobs sustained significant soft tissue injuries as a result of the accident of March 16, 2003 based solely on the history recited by her. He admitted that his opinion was based upon the assumption that Ms. Jacobs was accurate in that history.

[79] Dr. Cook also admitted, on cross-examination, that the records available to him from Drs. Graf-Blaine and Kemble were inconsistent with the history afforded to him by the plaintiff.

[80] The plaintiff’s self-report to Dr. Cook is indeed in conflict with contemporaneous medical evidence. Thus, Dr. Cook’s opinion with respect to the first accident is of no assistance. There is no basis upon which the Court can accept the accuracy or reliability of Dr. Cook’s opinion that the plaintiff sustained “significant soft tissue injury” in the motor vehicle accident of March 16, 2003.

THE EVIDENCE OF FRIENDS AND RELATIVES CALLED BY THE PLAINTIFF

Cheri Jacobs

[81] Ms. Cheri Jacobs is the plaintiff’s sister and they both currently reside at the same apartment building. She admitted that she and the plaintiff were both workaholics and very busy in 2003 so the interaction between them during 2003 was limited. The plaintiff at that time was busy completing her college courses. She graduated from Camoson College in December 2003.

[82] Cheri Jacobs was asked to comment upon her observations of the plaintiff’s health during 2003. Cheri Jacobs testified that it was not a “fast decline” but rather that it was a very “slow decline” in her health.

[83] Cheri Jacobs did not have much knowledge, if any, of the magnitude or the timing of her sister’s neurological problems. On cross-examination, she indicated that she thought the facial numbness dated back to the plaintiff’s time in Vancouver in 2003. She thought the walking into walls came about in the fall of 2003, and so on.

[84] This lack of reliability with respect to the timing of symptoms, which was proven independently, suggests that Cheri Jacobs’ memory is questionable. Furthermore, the “slow decline” that she observed in her sister’s health during 2003 is at least as consistent with the manifestation of MS as it is with any lingering effects of the motor vehicle accident.

[85] Her evidence was of limited value.

Alicia Orten

[86] Ms. Orten’s recollection of the plaintiff extends back to late 2001 or early 2002 when the plaintiff began work at Second Cup where Ms. Orten was already employed. That location went out of business in 2002 or 2003.

[87] Ms. Jacobs testified that she came back to Victoria on the weekend following the accident and it was during that trip that she went to St. Anthony’s clinic on March 19, 2003.

[88] The accident happened on Sunday, March 16, 2003. The 19th was not on a weekend. Yet, Ms. Orten agrees with the plaintiff’s recollection that it was on a weekend that Ms. Orten took her friend to St. Anthony’s clinic.

[89] Ms. Orten’s recollection of her friend’s presentation on that weekend is inconsistent with the presentation recorded by Dr. Campbell. Ms. Orten said she had a clear recollection of the plaintiff being tired, and saying she was having difficulty sleeping due to pain. As well, Ms. Orton recalled that the plaintiff complained of headache, neck pain and low back pain. She said that the magnitude of these injuries and problems prompted Ms. Orten to encourage her friend to go to the clinic.

[90] Dr. Campbell recorded only mild paralumbar pain.

[91] Either Ms. Jacobs underreported her symptoms to Dr. Campbell or Dr. Campbell erred or Ms. Orten is mistaken. The latter seems to be the more reasonable inference.

[92] During her testimony, Ms. Orten had difficulty limiting herself to observations. She continually told the court about Ms. Jacobs’ complaints of ongoing sleep problems and constant pain. This was at odds with Ms. Jacobs’ testimony at trial, that she was a person who rarely complained.

[93] When confronted with the apparent lack of medical records of ongoing complaints, Ms. Jacobs said that she always wanted to appear to be at her best. She said she never really wanted to let on that she had problems.

[94] However, Ms. Orten described the plaintiff as someone who was continually complaining about her neck, back, and headache and continually taking pills. There are no receipts for any of this medication.

[95] Ms. Orten described Ms. Jacobs on March 19, 2003 and said that she gradually got worse up to and including the MS attack in the spring of 2006. This is inconsistent with the medical records. It is inconsistent with Alan Jones’ testimony as to the impact of his physiotherapy treatments upon the plaintiff and, to a minor degree, inconsistent with the plaintiff herself who does not claim that her condition got worse between March 2003 and January 2005. The plaintiff said there was an exacerbation and worsening of her condition on January 25, 2005, the date of the second accident.

[96] Ms. Orten’s evidence is not reliable. Her perception of the plaintiff is inconsistent with the medical records and with the evidence of Ms. Jacobs herself.

[97] Ms. Orten’s testimony has not established objective evidence of the plaintiff's symptoms prior to the second accident.

Mary Jane Goddard

[98] Ms. Goddard, the plaintiff's flying school instructor, was called by the defendants. She was an excellent witness with a clear, independent recollection of the plaintiff. Ms. Goddard accepted the limits of her recollection and at the same time gave convincing details as to why the plaintiff stood out in her mind. I accept Ms. Goddard’s testimony whenever there is a conflict with that of Ms. Jacobs.

[99] The ground school class was small, consisting of two females and one male. Ms. Goddard remembered the plaintiff taking notes with a notebook computer. She recalled looking at the notes and being astounded at their completeness. She jokingly suggested to the plaintiff that she might post them onto the Internet as review notes for others going through ground school.

[100] Ms. Goddard remembered the plaintiff's enthusiasm and eagerness.

[101] Ms. Goddard demonstrated the walk around routine required of students before they were allowed into an airplane. With the aid of exhibits she demonstrated some of the bending, twisting and stooping motions the student must perform in order to check the wings, fuel, tires, brakes, and to get in and out of the aircraft. The evidence is that Ms. Jacobs performed all of these movements without complaint.

[102] Ms. Goddard described the uncomfortable seat in which the student pilot would sit. She described the substantial effort required to apply the brakes upon landing and upon taxiing. She described, credibly, that the plaintiff would have been permitted to land the plane (assisted by Ms. Goddard) only on the fourth flight. The plaintiff now complains that the effort required to bring the plane to a stop was extremely painful for her and was far greater than the effort required to stop a car. Ms. Jacobs did not complain to Ms. Goddard nor did Ms. Goddard notice any pain behaviour on the part of Ms. Jacobs.

[103] It should be noted that the plaintiff's records suggest that ground school occurred in 2003, and flying school in 2004. Ms. Goddard, who personally reviewed her records prior to coming to court, said that both occurred in 2004, which I accept.

[104] The Nancy Jacobs described by Ms. Goddard is not the Nancy Jacobs described by the plaintiff or her friends.

Anthony Hume-Ring

[105] Anthony Hume-Ring, the plaintiff's current boyfriend, was unable to assist the court with any insight into the plaintiff’s condition prior to March 16, 2003, or for a number of months thereafter. He did not meet her until the spring of 2003 and even then it was at most a casual acquaintanceship.

[106] Mr. Hume-Ring is now living with the plaintiff. His recollection of the plaintiff has been distorted by the impact of MS.

[107] The ability of Mr. Hume-Ring to assist the court in understanding the continuity of symptoms from the motor vehicle accident of March 16, 2003 is impaired by his lack of knowledge of the neurological problems from which the plaintiff was suffering in the summer of 2003 and beyond.

[108] He also testified that, even prior to the second accident, back pain and neck pain were “the big ones”, in terms of the plaintiff's symptomology. This is not consistent with the medical records. It is consistent with the plaintiff's present description of injuries from the first accident.

[109] Mr. Hume-Ring’s testimony about the plaintiff's jaw problems described symptoms occurring after the second accident. Mr. Hume-Ring’s evidence is more germane to the second accident than to the first.

The Plaintiff's Other Witnesses

[110] The timing of the interactions between the plaintiff and Howard Lundeen, the plaintiff's classmate, and Tiffany Young, the plaintiff's friend, leads to the conclusion that their respective testimonies could be of no assistance in determining her symptoms from the time of accident #1 up to accident #2.

[111] Ms. Jacobs did not start working for Bruce Campbell at Fastax until after accident #2, so his testimony was of no assistance.

[112] The testimony of Thelma Nicholson, one of the caretakers of the apartment building in which the plaintiff now lives, was also of no assistance. Not only was her evidence replete with contradictions, but she did not meet the plaintiff until after the second accident.

[113] Philip Zeman became a friend of the plaintiff after accident #1. He offered no useful observations of the plaintiff's symptoms prior to accident #2. His primary evidence concerned his observations of the plaintiff after the second accident.

THE PLAINTIFF’S CREDIBILITY AND MEMORY

[114] The plaintiff’s credibility as a witness is greatly affected by the impact of her MS upon her ability to recall events and experiences.

[115] Ms. Jacobs has a history of fainting and falls. One fall occurred on February 11, 2003, when she fainted and fell unconscious in a shower. She attempted at trial to suggest that she had tried to gently lower herself down onto the shower/bathroom floor, and therefore the fall had minor consequences. I reject this late explanation as it is contrary to the evidence. The evidence is that the plaintiff fell again on August 23, 2003, injuring her head.

[116] Mr. Hume-Ring recalled that he actually observed at least two episodes of collapsing and falling. The records of Dr. Graf-Blaine and Dr. Kemble refer to “frequent passing out and fatigue”. As early as June 30, 2003, the plaintiff, in the context of mentioning her motor vehicle accident of March 2003, advised medical practitioners that her fall in the shower and her visit to a neurologist in Vancouver occurred in March, not February 2003.

[117] Despite these apparently frequent falls and faints, the plaintiff did not obtain a medical expert opinion with respect to their potential for or actual causation of soft tissue injury. I note Gordon v. Palmer (1993), 78 B.C.L.R. (2nd) 236 at para. 5, where Thackray J. stated that “[s]ignificant injuries can be caused by the most casual of slips and falls.”

[118] The plaintiff sought refuge in the effects of her disease during the course of cross-examination. On at least one occasion, when confronted with one of the numerous inconsistencies between her evidence at trial and her evidence on examination for discovery in March 2006, she testified that even at the discovery the disease had impacted her memory.

[119] The plaintiff repeatedly answered various questions, both in chief and on cross, with the statement that she did not remember or, quite often, the phrase: “I don’t remember exactly”.

[120] One of the more obvious difficulties was the plaintiff's underestimation of the nature and effects of her disease. When plaintiff's counsel, over the objection of both defence counsel, asked her whether she felt that she would be capable of obtaining her MBA if she were not experiencing the effects of the soft tissue injuries, she said that she was confident that she could do so.

[121] When asked by her counsel whether the MS would have any impact on those plans or that ability, she indicated that it would not. She felt it might “bump” her marks down a bit but she had no doubt but that she could complete the MBA program. Ms. Jacobs maintained it was the soft tissue injuries, and her difficulties with sitting and studying, that were the bar to her progress.

[122] It was apparent that the plaintiff genuinely believed this to be true.

[123] However, I find that it is not true. I find that the plaintiff has a view of herself that is inconsistent with reality.

[124] Dr. Cook testified both in his report and on cross-examination with respect to the impact of the MS upon his patient. In the report he stated that:

A permanent lack of gainful employment may be a relatively minor disability when compared with the difficulties associated with a lack of insight into her disease process, relationships and cognition.

[125] In the cross-examination of Dr. Cook the following questions and answers arose:

Q. But the reality is, doctor, that if you leave the soft tissue injuries out of this completely, this MS has devastated Ms. Jacobs’ life, correct?

A. Yes, correct.

Q. And the last three lines you’ve written on page 48 [the passage beginning with “A permanent lack of gainful employment…”] that’s true with respect to Ms. Jacobs’ situation, whether or not it has anything to do with the soft tissue injuries, leave those out completely, that’s a true statement of what unfortunately has happened to Ms. Jacobs, correct?

A. I believe so. True.

[126] This helps explain why the plaintiff claims that all of her memories are in her mind but that some of them are in "filing cabinets" to which she does not have access.

[127] I am satisfied the plaintiff is striving to fill the gaps in her memory rather than being deliberately deceitful in some of her evidence. However, the Court cannot ignore all of the obviously erroneous evidence, merely because the Court suspects confabulation rather than intentional deceit.

[128] In Le v. Milburn, [1988] B.C.W.L.D. 777, [1987] B.C.J. No. 2690 (B.C.S.C.), Southin J. (as she then was) wrote at para. 2:

When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. ...

[129] Untrue evidence occasioned by organic brain damage gives rise to as much difficulty, in disentangling the truth from the web of unreality, as does deceit or exaggeration.

[130] Due to her MS it is natural to have sympathy for the plaintiff’s plight, but this cannot detract from the right of the defendant to be held responsible only for those losses that the plaintiff can demonstrate, on a balance of probabilities, stem from the defendant's negligence.

[131] The plaintiff's lack of insight into her condition must be viewed together with her propensity to attribute her problems to the motor vehicle accidents. This attribution was wrong. The plaintiff would no longer have the ability to complete an MBA program, even if she had no soft tissue injury symptoms at all.

[132] Very early in her cross-examination, the plaintiff was first confronted with evidence given by her on her examination for discovery. She had absolutely no recollection of the examination for discovery process other than a vague memory that a lawyer conducting the examination for discovery wore a grey suit.

[133] Ms. Jacobs was, during the course of cross-examination, confronted many times with passages from both of the examinations for discovery. One was held March 10, 2006, which was before the onset of the major MS flare-up in the spring of 2006, and the other was July 6, 2006, after she had been discharged from hospital.

[134] The plaintiff had a complete lack of recall of participating in either examination for discovery. I do not doubt the sincerity of the plaintiff’s evidence in this regard.

[135] Difficulties of this magnitude in her recollection of events from 2006 raise questions as to the reliability of her supposedly detailed evidence of symptoms in 2003, 2004 and 2005.

[136] Another example of memory reconstruction was the plaintiff's initial testimony that her recollection of ground school was that it lasted for one hour per week over some three weeks. This testimony was given on the afternoon of October 24, 2007.

[137] The next morning she was immediately led by counsel into stating that she “misspoke” when giving her earlier evidence about ground school. She had, so she said, reviewed her records during the evening of October 24, 2007, and learned that ground school actually occupied 48 hours. Independent evidence demonstrated this new evidence to be correct.

[138] During cross-examination, the plaintiff was again asked how long ground school had lasted. She attempted to reconstruct this. She tried to recall the duration of certain components of the course. She had to give up part way through as it was apparent that her memory was failing her. She did come up with a guess as to the number of hours that ground school had totalled, but that guess was not correct.

[139] Thus, while Ms. Jacobs gave correct evidence regarding ground school on the morning of October 25, 2007, when subjected to cross-examination, that memory had become vague and uncertain.

[140] It appears that the plaintiff's testimony on the morning of October 25 was not from a genuine memory. If her memory were genuine, then there is no explanation for why she would not be able to give the same evidence on cross-examination.

[141] Furthermore, in her evidence in chief, she said that she attended ground school in 2003. It took place in 2004.

[142] Ms. Jacobs testified that the doctor who examined her at the St. Anthony’s Clinic on March 19, 2003 recommended to her that she obtain physiotherapy and/or massage therapy. She stated that she did not avail herself with such treatments following the motor vehicle accident because ICBC refused to fund it.

[143] She stated she did not fund it herself because she was busy with efforts to relocate to Victoria and that her finances did not permit her to pay for the treatment.

[144] I note that Ms. McLaughlin volunteered to pay for therapy sessions but this offer was never taken up. Why did the plaintiff not avail herself of this funding? The plaintiff was afforded full opportunity to return to the stand to comment on this evidence but declined to do so. Her counsel stated that he was “content” with the evidence as it was.

[145] The plaintiff earned approximately $18,000 in 2003, with most of this earned in the spring and early summer of that year.

[146] In 2004, by contrast, her taxable income was $830. She was able to support herself throughout 2004 on that income because she had access to credit. This credit not only enabled her to support herself but also allowed her to pay for the apparent luxury of ground school and flying lessons. It seems unlikely that her finances would have prevented her from attending a physiotherapist if she were in constant pain.

[147] Ms. Jacobs gave no plausible explanation for why, when Dr. Campbell's optimistic prognosis of recovery in two weeks proved false, she did not go back to a doctor at that point. She stated that, if Dr. Campbell got it wrong, she did not expect any other doctor to get it right. This flies in the face of her testimony of unrelenting pain up to the second accident and numerous visits to health specialists.

[148] Dr. Graf-Blaine’s chart, and her evidence at trial, demonstrate that the plaintiff made no complaint, on four consecutive visits in 2003, of headache, neck pain or low back pain. There is an isolated reference to “back pain” in one document authored by Dr. Graf-Blaine. Nowhere in Dr. Graf-Blaine’s records is there any note that the plaintiff was expressing the types of difficulties that she now says she was not only experiencing on a constant basis, but which she was also reporting to her caregivers. I do note that Ms. Jacobs did report back pain to Dr. Jordan-Walker.

[149] Dr. Graf-Blaine noted that she conducted a complete physical examination of the plaintiff on July 15, 2003 and recorded that the plaintiff’s neck was “supple” and that the plaintiff’s musculoskeletal exam was “normal”.

[150] The plaintiff described Dr. Graf-Blaine as a physician who:

(a) never permitted her to spend more than ten minutes in her presence at any one time, including on the first visit;

(b) never allowed her to discuss more than one topic during any one visit;

(d) failed to address her complaints; and

(e) so humiliated her as to cause her to lose all faith in the medical care system and to look into the possibility of making a complaint about Dr. Graf-Blaine.

This description is without foundation given the doctor’s clinical notes and testimony.

[151] It is extremely unlikely that a doctor upon the very first meeting could record the detailed intake chart of June 26, 2003 with a patient in a mere ten minutes. The back page of the chart shows that the family history was also recorded.

[152] Again, the plaintiff's memory has failed her. Far from limiting the plaintiff to ten minutes, Dr. Graf-Blaine actually gave the plaintiff 30 minutes of her time on June 26, despite being able to charge MSP for only 20 minutes. Moreover, Dr. Graf‑Blaine afforded her another 20 minutes on June 30, to complete the chart.

[153] On June 30, 2003, Dr. Graf‑Blaine made her detailed referral to neurology specialist Dr. Kemble. The Dr. Graf-Blaine remembered by the plaintiff is not the Dr. Graf-Blaine who wrote that referral note.

CONCLUSIONS ON ACCIDENT #1

[154] The evidence of Dr. Graf-Blaine directly contradicts the plaintiff’s story of unremitting, constant and significant headache, neck pain and low back pain throughout the summer of 2003, and as of the date of the physical examination of January 2005.

[155] Dr. Kemble’s consult report is consistent with the evidence of Dr. Graf-Blaine and inconsistent with the plaintiff’s evidence.

[156] Objective evidence did not show that the motor vehicle accident of March 16, 2003 was a materially contributing cause of the plaintiff's low back complaints that were present as of December 15, 2004.

[157] The plaintiff has demonstrated, on a balance of probabilities, that she sustained a minor whiplash injury on March 16, 2003, the effects of which had resolved by the time of her examination by Dr. Kemble in the middle of August 2003. There is not sufficient evidence to conclude that the symptoms persisted for any time thereafter.

[158] I am satisfied that continuing soft tissue complaints appear to have been aggravated or caused by any of a number of unrelated factors, such as her fainting, falls, and walking into walls.

[159] The evidence is that the plaintiff's injuries from accident #1 healed in their natural course and their effects were eventually overwhelmed or subsumed by the plaintiff’s unrelated progressive MS symptoms and disability. I am satisfied that the plaintiff's pain and suffering decreased over a five-month period, ending in August 2003.

[160] The plaintiff did not adduce evidence of a compounding or synergistic effect between her MS and her accident related soft tissue injuries.

[161] On a review of the usual contradictory cases presented by opposing parties, I am satisfied the plaintiff is entitled to $8,500 in non-pecuniary damages for accident #1.

[162] The plaintiff suffered no loss of income as a result of the first motor vehicle accident. The plaintiff put forward no evidence of any special damages arising from that accident. She adduced no evidence of any cost of future care or impairment of earning capacity as a consequence of the accident.

THE MOTOR VEHICLE ACCIDENT ON JANUARY 25, 2005

[163] As stated above, I have found that there were no pre-existing soft tissue injuries from accident #1 at the time of accident #2. For purposes of assessment of the injuries due to the January 25, 2005 motor vehicle accident, this means that the plaintiff's health concerns of December 2004 and any treatment she received at that time were non-tortious in origin.

[164] The motor vehicle accident of January 25, 2005 occurred on Douglas Street in Victoria. The defendant, Ms. Moyer, was driving out of her apartment complex and entering onto Douglas Street when she impacted with the plaintiff’s rear passenger side quarter panel. The plaintiff maintained that this caused her vehicle to spin. She stated that she started up her car after it stalled with the impact and followed the defendant's vehicle to the side of the road where they exchanged information.

[165] The plaintiff maintained that although she did not recall hitting her head on any part of the interior

Citation:	*Jacobs v. McLaughlin,*
	2008 BCSC 483