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 of her vehicle, the centripetal force of the impact was so significant that it caused her jaw to dislocate. This required her to pull her jaw back into place. Moreover, she said this same force caused her to feel her eyes to be pulled. She said that she had immediate headaches, neck and back pain.

[166] Nevertheless, the plaintiff exchanged information with Ms. Moyer apparently without difficulty and accompanied her to her nearby apartment, as neither had a cell phone. Neither the police nor an ambulance attended though Ms. Moyer called the police and insurer. Ms. Moyer asked Ms. Jacobs whether she was all right following the accident and was advised that she was. Ms. Jacobs does not recall stating that.

[167] Ms. Jacobs has now alleged her injuries pertaining to the motor vehicle accident of January 25, 2005 include headaches, neck and back pain, mid back pain, pain in the shoulders and the hip, dizziness and disturbance of sleep.

[168] Ms. Moyer is retired and has credible recall. She herself was uninjured. She said Ms. Jacobs wrote down the particulars of information and she, in turn, received Ms. Jacobs’ particulars, including her business card. Ms. Moyer said the plaintiff did not appear to be emotional or to have been injured. Ms. Moyer inspected the vehicles with the plaintiff and remembered only that the damage to the vehicles appeared minor. Ms. Moyer said she was more interested in Ms. Jacobs and whether she had been injured than in the damage to the vehicles.

[169] Ms. Moyer stated that she did not notice any problems with the plaintiff’s jaw or speech or any facial expressions she might interpret as pain. She said that during their walk to her apartment about 70 yards away, the plaintiff kept up with her even though she is a fast walker. At no time did she observe any disturbance of gait or imbalance. She recalled the plaintiff complimented her on her apartment and that the plaintiff confided that she worked from home. She recalled the time they spent together as being roughly 30 minutes to three quarters of an hour in total and that at no time was she advised by Ms. Jacobs that she was intending to see a doctor or that she was injured. I accept Ms. Moyer’s statement that had the plaintiff informed her she was injured or needed a doctor’s attention, she would have called 911 or her doctor. I accept that she would not have left the plaintiff unassisted.

[170] The plaintiff blamed this accident for immediate injury to her adductor muscles. The first appearance of complaint regarding the adductor muscles is in the April 18, 2005 clinical record of Dr. Jones, despite nine intervening visits to Dr. Jones after the second accident.

[171] The Court has found the plaintiff to be an unreliable historian. The result of the plaintiff’s misinformation or inconsistent evidence is that the plaintiff and the physicians called upon to provide opinion evidence on her behalf have failed to segregate potential soft tissue injuries from the accident of January 25, 2005 and from intervening injuries due to her MS.

[172] The plaintiff’s aggressive form of MS disease had already begun to manifest itself in various forms about one year prior to her presentation of complaints to neurologist Dr. Lisa Bateman in February 2003. Ms. Jacobs experienced the effects of her progressive MS disease on a fluctuating, symptomatic basis. To reiterate, this included her significant fatigue, dizziness, walking into walls, frequent fainting and falls, all of which had the potential to create or aggravate soft tissue injuries, at least until May 2006, when she was hospitalized for her now fully disabling MS.

[173] Following the May 2006 episode of MS, which is characterized principally as a brain stem attack, the plaintiff was effectively totally disabled from employment and a number of pastimes she previously enjoyed. While chemotherapy has apparently been partially successful in deactivating some aspects of the disease process for the time being, her cognitive capacity has not rebounded nor is her future bright. As I have already determined, her insight into her condition is significantly impaired.

[174] Dr. Greenwood saw Ms. Jacobs on January 25, 2005 at the James Bay Medical Clinic shortly after the second motor vehicle accident. He recorded instant headache, a symptom not mentioned by the plaintiff to Ms. Moyer. It appears that the plaintiff attempted to tie in the first motor vehicle accident to her low back pain. The doctor noted, “Previous MVA March 2003. Low back pain not yet recovered. Having physio”. The plaintiff complained of headache, neck and shoulder pain in addition to continuing low back pain. On examination, the plaintiff had full range of motion in the neck.

[175] While the records of physiotherapist Alan Jones show ongoing treatment with respect to the plaintiff’s lumbrosacral symptoms, he included treatment with respect to the cervical and intra-scapular areas following the motor vehicle accident of January 25, 2005. These were areas he had not been treating previously. I note that the sartorius and adductor longus strains are first mentioned on April 18, 2005, not immediately following the second accident as the plaintiff suggested.

[176] Close scrutiny of the treatment record shows that physiotherapy treatments tapered off in March, April and May 2005 to an infrequent basis, despite the plaintiff’s complaint upon presentation and history on May 26, 2005 that all areas had been aggravated by “many hours of computer work”. The neck complaints were clearly being treated as secondary to the plaintiff’s ongoing principal complaint of low back pain.

[177] These later neck complaints tapered off as of September and November 2005 according to Mr. Alan Jones, with intermittent work related “spasm” or muscle tension according to workload still being noted. The remaining hip related symptoms appear to have continued with little change as of November 16, 2005. Mr. Jones admitted that he suspected that he was treating something other than soft tissue injuries as the plaintiff did not heal in the normal course as expected with his treatment.

[178] The evidence is that poor posture at the computer for long hours, faints or falls, and walking into walls were as likely a cause of the plaintiff's difficulties as the second accident.

[179] The accident of January 25, 2005 was incapable of aggravating any pre‑existing condition from the first accident given my determination that those injures were healed by August 2003.

[180] The additional neck complaints arising after accident #2 appear to have been mild and of less concern than the complaints of the pre-existing low back pain.

[181] The clinical records of Dr. Gouws indicate that he saw Ms. Jacobs on February 25, 2005. She complained of severe back pain and radiating pain to the right groin as a result of a recent motor vehicle accident. He noted that the plaintiff was using Tylenol #3 for sleep purposes and that she had spasm in the paralumbar area. While Dr. Gouws was definite that the plaintiff had muscle spasm on both sides of her lower back area, he had no recollection of any explanation for why the back spasm or complaints in the paralumbar area would also have been present in December 2004 when the plaintiff saw Alan Jones. Not having seen her prior to the motor vehicle accident, Dr. Gouws was, of course, in no position to make a comparison between the complaints on a before and after basis.

[182] In cross-examination, Dr. Gouws stated that he would have noted other complaints if they had been made. He admitted that there were no other recorded pain complaints such as pain in the neck or headaches when he saw the plaintiff on February 25, 2005. The Court is concerned that the plaintiff’s complaints following the motor vehicle accident of January 25, 2005 pertain to the same complaints that she had prior to it. The neck pains were apparently so minor that they did not generate complaints or the need for separate x-rays.

[183] Dr. Gouws' only other clinical record pertains to the May 2, 2006 entry.

[184] As this relates to the day before the plaintiff was admitted to hospital for her severe brainstem MS relapse, there is little doubt that it records the effects of the MS as opposed to any soft tissue injuries and is irrelevant to the case at bar.

[185] Dr. Brigel saw the plaintiff for the first time on February 23, 2005. He also saw her on March 8 and March 31, 2005. She came to his office complaining that the other doctors had cast her off since her motor vehicle accident of 2003. She complained of both low back pain and pain in her hip, but not of headaches or neck pain. He told her to stay active, to be careful when lifting, and to maintain proper posture. Overall, Dr. Brigel had limited contact with the plaintiff.

[186] Ms. Janet Beck, massage therapist, saw the plaintiff on February 16, 2005, roughly within a week of seeing Dr. Brigel. Ms. Jacobs reported neck, shoulder and back aches, headaches, and also a host of other problems including dizziness, swollen joints, problems with her tailbone, knees, and even feet. She described her SI joint pain as 10+ out of 10, with 10 signifying the most excruciating pain imaginable. This report did not result in any immediate emergency procedures; Ms. Beck gave a massage.

[187] The plaintiff was treated again by Ms. Beck in March and April 2005 and not seen again until July 17, 2007. She had one more treatment in August 2007, this time for her low back only. Ms. Beck’s evidence was tendered only to confirm the plaintiff's reports of ongoing complaints.

[188] There is no medical opinion to support a connection between these treatments and the motor vehicle accident of January 25, 2005.

[189] Dr. Brigel said the plaintiff was improving as of March 8, 2005. He said that her sleep was still disrupted by pain which may or may not have been attributable to her ongoing low back symptoms from December 2004.

[190] By March 31, 2005, the plaintiff had stopped all her medications and told Dr. Brigel that she was only taking the occasional Tylenol #3. As of March 31, 2005, there seems to have been an improvement in her condition, which is consistent with the records of Alan Jones, the physiotherapist, and with Dr. Gouws, who did not record neck pain or headaches. This suggests there was continuing aggravation of a pre-existing lumbar problem likely attributable to the second motor vehicle accident for a total of approximately three months. I note that the neck symptoms were not mentioned by Dr. Brigel.

[191] While neck complaints are in fact mentioned in the roughly contemporaneous clinical notes of massage therapist Janet Beck, there does appear to be a discrepancy between her records and Dr. Brigel’s as to what was being reported as causing discomfort. Clearly, the low back pains predominated. I note that the plaintiff advised Dr. Graf‑Blaine on February 8, 2005 that she was diagnosed with an “arthritic” problem but its manifestations or presentation were never made clear in any of the medical documentation.

[192] By June 13, 2005, the plaintiff stated to physiotherapist Alan Jones that the pain was “slowly diminishing in all affected areas”. Mr. Jones made no direct comparison between the plaintiff’s ability to sit or maintain position as complained of on the December 15, 2004 visit and such complaints following the January 25, 2005 motor vehicle accident. While Mr. Jones said on January 27, 2005 that the lumbosacral pain was “further aggravated”, it was not made clear whether this meant his patient’s symptoms were set back to where they were before his numerous treatments in December 2004 and in early January 2005. The pain behaviour the plaintiff’s friends and family most often confirmed as the one they associated with her condition was her apparent discomfort while sitting. However, she did continue with her educational endeavours and with her employment at Fastax, which indicates to the Court the moderate nature of the aggravation.

[193] As of June 13, 2005, the records of Alan Jones note that the plaintiff was able to sit for up to 20 minutes without having to move and she was about to leave on a two-week vacation. The plaintiff was able to sit in the witness box for periods much longer than 20 minutes, which demonstrated that her present capacities exceed the limitations that she testified have continued unabated.

[194] The plaintiff continued with physiotherapy and occasional chiropractic treatments throughout 2005 and into 2006, prior to the MS relapse that left her disabled. There is no reliable medical evidence to suggest that the plaintiff would not have had these treatments even if the motor vehicle accident of January 25, 2005 had not occurred.

[195] While attending physiotherapy and chiropractic treatments, the plaintiff was enrolled on a full-time basis at Royal Roads University in the MBA program. Between April 1 and June 30, 2005, she took and completed seven courses. The plaintiff continued her studies through the summer, taking two courses with four credits each. She obtained A and B grades. I am satisfied this extensive course work involving the use of computers was a factor that contributed to her complaints of neck pain and nagging back pain.

MEDICAL LEGAL REPORTS

[196] Dr. Devonshire did not provide an explanation for the spasm or general complaints with respect to the plaintiff’s low back prior to the motor vehicle accident of January 25, 2005. Dr. Devonshire conceded that she had not been told about the records of Dr. Graf-Blaine, Dr. Smith or Dr. Menzies. She had never seen a record of the February 11, 2003 incident in which the plaintiff was noted to lose consciousness and fall in the shower, leaving her unable to move for some time.

[197] As I determined above, Dr. Devonshire’s generalized opinion that the motor vehicle accidents could worsen the function of Ms. Jacobs must be given no weight in light of the inadequate and unexamined history provided to her. The evidence of any compounding or synergistic effect between the fluctuating symptoms of MS and the soft tissue injuries is entirely lacking. This compounding theory does not have either the factual foundation or the medical opinion necessary to draw any inferences or conclusions in this case.

[198] Dr. Devonshire conceded that chronic pain is common for MS patients but that MS patients generally experience neurogenic pain rather than musculoskeletal pain, especially in the early stages of the disease. She did not attempt to assess all types of pain or pain behaviour specific to Ms. Jacobs such as psychological or exaggerated pain. Dr. Devonshire was never provided with Dr. Graf-Blaine or Dr. Brigel’s records in this regard. Dr. Devonshire also did not attempt to confront the various types of pain or possible alternate causes of the plaintiff's soft tissue injury, despite a clear record of potential alternate sources of it.

[199] Dr. Cook in the second medical legal opinion, dated August 16, 2006, opined:

There is no doubt that Ms. Jacobs sustained significant soft tissue injuries as a result of two separate motor vehicle accidents. In addition, sequelae of these injuries obviated any opportunity for a return to gainful employment. Compounding this patient’s difficulties is the development of acute multiple sclerosis (severe) evident in May 2006. The relationship between the development or exacerbation of multiple sclerosis and the motor vehicle accidents is beyond my area of practice but nonetheless the prognosis for both the short and long term periods must be considered extremely guarded.

[200] Dr. Cook concluded that the plaintiff would be unable to return to work due to two motor vehicle accidents, not three, based on visits between January 24, 2006 and April 6, 2006. Ms. Jacobs was working full-time at Fastax at that time.

[201] As discussed above, Dr. Cook went on to say that he was most concerned regarding the effects of the plaintiff’s MS disease on her frontal lobe and all aspects of her future life. He stated that if she were to have a permanent lack of gainful employment, this would be a relatively minor disability when compared with the difficulties associated with a lack of insight into her disease process, relationships and cognition. He acknowledged the overwhelming devastation that the plaintiff’s MS brought and would continue to bring to her life, regardless of treatment.

[202] Dr. Cook realized that, prior to becoming his patient, the plaintiff did not have the benefit of a single family physician who could consistently keep track of her problems. He made a note that he should obtain the charts from Drs. Graf‑Blaine and Brigel. It appears that he failed to read these until much later as he was surprised to learn her principal problems pertained to her MS. He acknowledged in cross-examination that he had no conscious recollection of these records when he was writing his medical legal report.

[203] In his clinical records from June 3, 2005 to September 26, 2007, Dr. Cook noted the plaintiff’s complaints from his interview of her on June 3, 2005. These included complaints regarding her lower back, neck and interscapular region. His notes were not, however, based on a physical examination of her. He did not explain why he did not examine Ms. Jacobs on this occasion. Ms. Jacobs advised him that she was about 50-60% better from the accident of March 16, 2003 at the time of the January 25, 2005 accident. Ms. Jacobs did not advise Dr. Cook about her documented complaints pertaining to her March 2003 motor vehicle accident. Also, she did not advise Dr. Cook that she commenced physiotherapy on December 15, 2004 on an intensive basis. Instead she rather vaguely said that she “required regular physiotherapy sessions after the accident”. Ms. Jacobs’ self-assessments of impairment, disability and pain level are unreliable.

[204] Thus, Dr. Cook did not take critical steps to document his physical examination findings, if any, with respect to the subjective complaints of the plaintiff pertaining to her neck, upper back and other soft tissue complaints. On cross-examination, Dr. Cook admitted that there was an absence of actual findings with respect to his examinations although he maintained that he must have done range of motion examinations at various times.

[205] He did not document prior or intervening causation of the plaintiff's symptoms, such as her various falls or episodes of walking into walls.

[206] The defendant does not dispute that the plaintiff sustained some soft tissue injuries in the motor vehicle accident of January 25, 2005. However, the clinical assessments of the plaintiff by Dr. Cook after July 4, 2005 record only the plaintiff’s subjective complaints. It does not appear that there were any attempts to determine range of motion of the lumbar spine or to compare such findings to previous records. There is no notation of spasm throughout July, August, October and November 2005 up to the date of the third motor vehicle accident. There are no objective findings pertaining to the soft tissue injuries, despite Dr. Cook’s suggestion that he would have been doing regional examinations of the neck and upper body. There is no record of such examinations even though he knew from the outset that Ms. Jacobs was involved in unresolved litigation.

[207] The clinical records reveal subjective complaints, similar to the complaints made by the plaintiff to Alan Jones from December 15, 2004 up to the date of the second motor vehicle accident. In addition, the plaintiff made some subjective complaints of neck pain and headache. Much later, she complained of the onset of TMJ (temporomandibular joint) pain on August 18, 2005. This was related by the plaintiff as being caused by the first motor vehicle accident of March 16, 2003, and made worse by the second motor vehicle accident of January 25, 2005. This is contrary to the evidence.

[208] Dr. Cook continued to treat the plaintiff, admitting on cross-examination that he did not realize, except in hindsight, that he was attempting to treat someone suffering from MS. The evidence is that this is perfectly understandable in that the evidence is that detection and diagnosis of MS often takes years. Thus, Dr. Cook was in effect attempting to treat two medical problems, one of which he was completely unaware.

[209] Dr. Cook was unable to determine why the medications he prescribed were appearing to have no effect, or why the soft tissue injuries appeared to be continuing despite the expected natural process of healing. It was only by May or June 2006 that Dr. Cook realized that he was dealing with a patient suffering from MS, a disease process admittedly beyond his area of expertise. It was at this time that he attempted to re-read stored file documentation and understand the plaintiff’s medical history.

[210] Dr. Cook then realized that the plaintiff was showing very substantial signs of “frontal lobe damage” with both particular and generalized symptoms that might have affected the course of her medical history all along. In cross-examination, Dr. Cook revealed that he had not reviewed all the documentation available to him from Drs. Brigel and Graf-Blaine.

[211] It was only after the significant brain stem relapse of May 2006 that Dr. Cook started recording substantial curtailment of activities on the part of the plaintiff. As already noted, by this point, the MS had taken full hold and had disabled the plaintiff cognitively.

[212] Dr. Cook continued to comment upon the plaintiff’s ongoing musculoskeletal issues, as seen in his August 24, 2006 clinical record which recognized that the plaintiff was still complaining that her neck was “bad”. However, medical attention was obviously now being directed to the treatment of the plaintiff's MS.

[213] Dr. Cook made no comment as to how the plaintiff's medical problems were interacting or whether there was a synergistic or compounding effect between them. There was reference to the plaintiff having to use a cane for a time but there is no reference to her having a greater difficulty in doing so because of neck or back problems. Dr. Cook made no attempt to discern whether the soft tissue injuries impaired her functioning at any given point in time.

[214] Similarly, the plaintiff’s references to MS recorded by Dr. Cook on August 28, 2006 contain no further complaints of neck or back pain or headaches.

[215] A review of Dr. Cook’s chart must be viewed in light of his failure to record any physical examination of the plaintiff until after her MS attack in May 2006. He did not routinely check information that she provided to him.

[216] Dr. Cook on cross-examination acknowledged the plaintiff’s MS did cause significant problems in her short and long term memory. He admitted that he realized the plaintiff’s ability to provide an accurate history was significantly compromised when, in helping the plaintiff to fill in a form in April 2007, he noted that she could not even remember where she had worked in previous years, apart from a coffee shop.

[217] By September 21, 2006, the plaintiff was again complaining of fatigue. She had experienced fatigue even before the first motor vehicle accident and it was likely associated with her MS onset. This would have substantially interfered with her activity and may have been compounded by her unremitting cognitive difficulties, regardless of any soft tissue complaints.

[218] Dr. Cook’s chart shows the plaintiff's first complaint to him about headaches was on November 1, 2005. This is consistent with the fact that she may have had an intermittent headache at that time, but it is grossly inconsistent with the plaintiff’s repeated representation that she suffered from headaches on an unremitting or continuous basis from the date of the first motor vehicle accident. There is a note on January 24, 2006, confirming she had pain in her neck and that she was alarmed and went to a chiropractor for five visits. Although in February 2006, the plaintiff appears to have complained of hip and back pain as well as secondary headaches, Dr. Cook’s notes leading up to the plaintiff’s full brain stem relapse in May 2006 are vague.

[219] The clinical records of Dr. Cook dated October 20, October 31 and November 2, 2006 appear to contain no references to neck pain or back pain. The balance of clinical records from December 22, 2006 through 2007 reflect an emphasis upon the plaintiff’s MS symptoms and the various experimental chemotherapeutic drugs, such as Mitoxantrone, used to combat or slow the progress of the MS disease. Dr. Cook noted the onset of new and disturbing problems in each instance, along with the plaintiff's development of new muscle pains, apparently aggravated by the difficulty she had with her gait.

[220] Dr. Cook’s records beyond December 2005 do not distinguish between the results of the November 29, 2005 motor vehicle accident and the balance of the plaintiff’s medical problems or the other motor vehicle accidents. What Dr. Cook did record as resulting from the second motor vehicle accident is best characterized as mild soft tissue injuries superimposed upon an already actively symptomatic lower back condition. This condition was of undetermined origin and had similar if not identical functional ramifications prior to the second accident. Despite his knowledge that this was a medical legal matter, Dr. Cook did not make the appropriate comparisons of Ms. Jacobs’ condition before and after the second and third motor vehicle accidents.

[221] By December 1, 2005, Dr. Cook was aware that the plaintiff was attending Royal Roads University. He was not advised that there was any difficulty with regard to this educational pursuit.

[222] Moreover, insofar as the plaintiff’s TMJ issue was concerned, there appears to have been no follow up with respect to whether the plaintiff ever obtained a splint, despite her lawyer’s advice that he would obtain funding. Dr. Cook made no attempt to determine whether the plaintiff’s TMJ complaints were congenital, due to stress, or actually associated with the first motor vehicle accident. Dr. Lamont, the expert the plaintiff was referred to in this regard, was not called to testify nor was his report tendered in evidence.

[223] A review of the clinical records demonstrates that Dr. Cook was provided with inaccurate histories. He relied upon these histories in his medical legal report despite admitted inaccuracy. He had a lack of appropriate understanding of the effects of the intervening MS on the plaintiff, and he failed to consult documents made available to him. These factors satisfy me that Dr. Cook was in no position to comment with respect to the causation of complaints associated with the first motor vehicle accident and that he had very limited and uninformed insight into the complaints following the second and third motor vehicle accidents.

[224] Dr. Cook acknowledged that the effects of the soft tissue injuries on the plaintiff were “miniscule” in light of the ongoing progressive MS symptoms. While there is a dearth of clear objective comparisons between the plaintiff's particular MS and the effects of her musculoskeletal symptoms in the medical opinions tendered by the plaintiff, Dr. Cook in chief has nevertheless provided a very general comparison to assist in the overall assessment of damages.

[225] The clinical records of Dr. Cook do little to assist the Court in assessing the general concept offered by Dr. Devonshire that there could be a compounding or synergistic effect between the soft tissue injuries and the MS symptoms of the plaintiff. The plaintiff’s degree of function from the date of the second motor vehicle accident up to the date of the MS relapse in May 2006 suggests that the fluctuating symptoms of MS did not have a synergistic or compounding effect. It appears that the plaintiff had reasonably good function until the MS symptoms began to predominate.

LAY WITNESSES

Mr. Lundeen

[226] Mr. Lundeen was a well spoken and apparently truthful lay witness who testified that he knew Ms. Jacobs as part of his cohort team at Royal Roads University, where the plaintiff commenced her MBA program in the Spring of 2005. He met Ms. Jacobs for the first time in April 2005 and described his first impression of her as an engaging and energetic person he felt would be a good addition to the team. She asked a lot of questions and appeared to function at a very high level.

[227] He felt, however, that her performance did not match his first impression of her as he noticed that she was not appearing to grasp the concepts being taught. He says this became more evident during the “distance learning program”, a component of the course that did not involve her actual presence on campus.

[228] During the residential portion of the curriculum, Mr. Lundeen noted that the plaintiff would have to stretch or lie down on the floor, though it was admitted that the days were long and she would be expected at times to be working until 11:00 p.m. He noted that extensive use of the computer was required in the program.

[229] Mr. Lundeen stated that Ms. Jacobs started to have interpersonal difficulties with her other team mates. She advised him that she was having trouble sleeping. It was never clear whether this was due to her pre-existing low back problem. She also advised him she had difficulty concentrating and was fatigued. He could not recall if she complained about nausea. She would occasionally have to quit some of the two hour telephone conferences. By September 2005, the plaintiff had been voted off the team and she sent a letter to the University in protest. Mr. Lundeen recalled that she also complained of dizziness and lack of concentration as of September 2005.

[230] Mr. Lundeen did not attend the third residency portion of the program with Ms. Jacobs. He recalled seeing her in 2007 when he observed she had disoriented speech patterns and was walking with a cane.

[231] His description of her initial energetic nature in the spring of 2005 is not consistent with the plaintiff's description of soft tissue injuries causing her pain in the 10+ range. Her excellent grades at Royal Roads suggests that despite all her symptoms, she was able to function at a high level until her eventual brainstem relapse of MS in May 2006. The plaintiff did not call any instructors from Royal Roads to contradict or impeach her documented success.

[232] Mr. Lundeen as a lay witness could not make any distinctions between the plaintiff's MS and musculoskeletal symptoms. His description of her later difficulties was consistent with MS related fluctuating symptoms. In any event, since Mr. Lundeen did not know Ms. Jacobs before the spring of 2005, he was not in a position to compare Ms. Jacobs’ low back spasm and pain behaviour before her second motor vehicle accident with what he actually observed beginning several months after the accident.

Thelma Nicholson

[233] Ms. Nicholson has been the plaintiff’s landlady at 450 Dallas Road, Victoria, for over two and one-half years. As I stated above, she described events in a way that made her evidence totally unreliable. Her knowledge of dates and events were contrived to meet her objective of helping one of her tenants who she believed was in need of assistance. Her belief that Ms. Jacobs was having difficulty walking after the 2005 motor vehicle accident, for instance, is simply not corroborated by medical evidence and contradicted the evidence of Mr. Lundeen and the plaintiff herself. However, Ms. Nicholson's description of the plaintiff’s vision and walking difficulties are consistent with the MS disease process.

Tiffany Young

[234] Ms. Tiffany Young met the plaintiff in the fall of 2004. Their relationship at first involved only infrequent meetings. It was only in the year 2007, after a considerable period during which they were not close, that they became good friends.

[235] Ms. Young recalled the plaintiff, almost immediately after they met, advising her that she had been in motor vehicle accidents and was in pain. She recalled the plaintiff using medications and expressing frustration with the fact that they did not appear to help. She recalled the plaintiff squirming in her chair, for instance, when they would go out to have a meal or coffee. This suggested to her that the plaintiff was in pain. There is no evidence that Ms. Young could discern whether this pain was any different from the pain that caused the plaintiff to have difficulties in maintaining the same position for extended periods of time on December 15, 2004 and following, before the second accident.

[236] Ms. Young also recalled the plaintiff being very enthusiastic about her residency at Royal Roads. She was oblivious to the plaintiff's well-documented MS symptoms until after her May 2006 MS relapse.

Anthony Hume-Ring

[237] Mr. Hume-Ring, a home care worker, is the plaintiff’s boyfriend. He met the plaintiff at an art gallery in May 2003. He was an interested witness whose evidence in-chief did not contradict that of the plaintiff.

[238] Mr. Hume-Ring recalled the plaintiff complaining about being unable to sit for any length of time. However, he appeared to be unaware that she attended flight school in 2004 or that she had to sit for lengthy periods while attending Camosun College in 2003. His sense of chronology is hazy.

[239] He excused these lapses in his memory on the basis that he was not interested in business or flying. I am satisfied his recall was also affected by his then casual relationship with Ms. Jacobs and his current interest in the outcome of the litigation.

[240] Mr. Hume-Ring also did not account for the plaintiff’s participation in physiotherapy in December 2004. He did not mention the plaintiff’s falls due to fainting until cross-examination. At that point, he recalled at least two episodes in which he observed the plaintiff “collapsing”. He also confirmed that the plaintiff still makes considerable use of her computer at a non-ergonomic computer station.

[241] While Mr. Hume-Ring suggested that the second accident made Ms. Jacobs’ medical situation “pretty extreme”, causing her to lose mobility, he was unable to reconcile this testimony with her successful participation at Royal Roads in 2005. He did not mention her continued driving and working in his evaluation of her “extreme” medical problems.

[242] Mr. Hume-Ring also failed to mention the documented difficulties Ms. Jacobs had with respect to her MS, with the exception of the May 2006 relapse. This witness appeared to be less than candid with the Court in this respect as he did not remember such symptoms as dizziness, walking into walls, vision shifts, memory lapses, lack of concentration and light-headedness, some of which he surely observed.

Phil Zeman

[243] Mr. Zeman first met the plaintiff by email on April 30, 2003. He met her in person soon afterwards in connection with the Young Entrepreneurs Association. He only met her on one or two occasions in 2003 and appeared to be completely unaware that the plaintiff was pursuing her education full-time, working and later attending flight school.

[244] Mr. Zeman became better acquainted with Ms. Jacobs in 2005. He advised the Court that he arranged five meetings with her via email, as these emails were retrieved by him and refreshed his recollection on this point. However, upon cross-examination, it was apparent that he did not have an actual recollection of the number of meetings, and in fact admitted that it could have been anywhere between five and 15 or 20 meetings, “maybe”. At another time the number was stated to be possibly 50. When pressed further, he admitted that he did not actually know if he met with her in 2004, though by “deduction”, he felt he must have.

[245] In fact, Mr. Zeman could only remember two meetings with the plaintiff. The emails he researched had no references to the plaintiff’s symptoms. Mr. Zeman met with the plaintiff to discuss this case a week prior to his testifying in order to “ground” his admittedly “episodic” memory. This meeting, which he first described as taking only minutes, in cross-examination was revealed to have actually lasted a half day. This would have affected any potential recall of Mr. Zeman.

[246] Mr. Zeman’s evidence was vague and unreliable. He advised the Court that when he first met the plaintiff she did not hobble but that now she does. He had no recall of MS symptoms manifesting themselves prior to the April/May 2006 relapse. He was not able to provide useful information to assist the Court in segregating and assessing any soft tissue injuries.

Cheri Jacobs

[247] Ms. Cheri Jacobs, as the sister of the plaintiff, was an obviously interested party. Her candor with respect to her inability to recall events in a chronological fashion suggested that she was attempting to give her evidence as best she could. The picture provided by Ms. Cheri Jacobs was one of gradual progressive decline in her sister’s health, consistent with MS.

[248] Although she did not detail her recall of the plaintiff's symptoms pertaining to MS in chief, in cross-examination she was able to remember complaints of dizziness and numbness in the face. She could not recall when these problems arose. She could not remember her sister falling but acknowledged her sister was the type of person who probably wanted to spare her family any worry. She did, however, think that she recalled vision problems and her sister walking into walls in 2003 when she returned from Vancouver. While there was some confirmation of back problems affecting such pastimes as movie watching, Cheri Jacobs was not a witness able to provide critical evidence respecting the plaintiff's back pain in December 2004. She did confirm her sister did well at Royal Roads but they did not celebrate this achievement in any special way. She recalled that she watched movies with her sister and friends.

Alicia Ann Orton

[249] Ms. Orton, a legal secretary, is a friend of the plaintiff. She advised that she was not good at remembering dates. She had no recollection of the plaintiff exhibiting pre‑accident MS symptoms of dizziness, fainting, nausea, weight loss, hand or arm problems, fatigue, or her visits to doctors regarding these symptoms.

[250] She had no recollection of what the plaintiff was doing around Christmas 2004 and therefore was not able to account for her sudden need for intensive physiotherapy. She did recall that the plaintiff’s medical problems seemed to get progressively worse. This would be expected as the plaintiff’s MS symptoms progressed. Ms. Orton's version of events appeared to mimic the plaintiff’s, including the attempt to attribute all of Ms. Jacobs’ difficulties to the motor vehicle accidents.

Nyomi Beatty

[251] Ms. Beatty is a chartered accountant. She recalled the plaintiff working at Hutcheson & Co. at the same time she did and that they attended parties at Hutcheson & Co. Although she could remember that the plaintiff squirmed in her chair, she could not provide evidence of what the plaintiff was like at Christmas 2004 so as to differentiate such problems from those that may have arisen afterwards.

[252] Ms. Beatty did confirm that when staying over at the plaintiff's apartment, the plaintiff appeared to get up at night. She assumed this was due to pain. She did not give evidence that would assist in determining whether this was in any way different from Ms. Jacobs’ behaviour prior to January 25, 2005.

[253] In fact, Ms. Beatty only saw the plaintiff briefly at an unspecified time in 2005. She could not recall if this was before or after the plaintiff's studies at Royal Roads University. She readily admitted that she was “sketchy” with respect to dates. Ms. Beatty did not provide any reliable or probative evidence regarding the before and after comparisons for the second motor vehicle accident.

[254] Ms. Beatty did not provide evidence that the plaintiff was incapacitated from the “frantic” earlier work at Hutcheson & Co. during tax season and she seemed to have only a vague notion of the onset of the plaintiff's MS symptoms over the course of their friendship. She could not remember Ms. Jacobs having memory problems but thought she “maybe” had problems with concentration. She recalled the plaintiff telling her that she had blacked out in the shower in Vancouver and thought that this may have occurred more than once in Vancouver.

[255] This witness did not advance the case of the plaintiff with respect to the second motor vehicle accident beyond the undisputed ongoing issues with her pre‑existing low back pain and a brief neck complaint following the collision.

Bruce Campbell

[256] Mr. Campbell is a businessman and manager of an income tax service known as Fastax. He recalled interviewing and hiring Ms. Jacobs in January 2005 and was impressed with her potential. He hired her as a part-time tax preparer, to work out of a Wal-Mart kiosk. The plaintiff worked a minimum of 20 hours per week through the tax season from February until the end of April. He hired her for the 2006 tax year on a full-time basis.

[257] He felt that in 2005, she was making unusual errors and described her as having a “sallow appearance”. He recalled that she attended doctors for medical appointments, but he did not know why. He paid her a bonus in each year and noted that, in addition to her tax preparing duties, Ms. Jacobs established an Internet domain for him, something he did not know how to do.

[258] Mr. Campbell did not recall all of the plaintiff’s symptoms. He did recall noting dizziness, but he could not remember when. He confirmed that the plaintiff's work involved sitting on a poorly designed chair when she was not required to be standing with a customer. He vaguely recalled that the plaintiff complained about aches and pains. This recollection was not chronologically anchored, however. There was no record of the plaintiff leaving a shift, apart from when she had arranged to see a doctor.

[259] The evidence of Mr. Campbell did not advance the plaintiff’s case. He confirmed some of the plaintiff’s MS symptoms, but he was not able to differentiate between these and the soft tissue injuries. He may have actually observed some of the plaintiff’s soft tissue injury complaints in the 2005 tax year, which coincided with the short-term complaints assumed by the defendant Moyer to have been occasioned by that accident. However, his vague observations in the 2006 taxation year would be easily explained in terms of the plaintiff’s admittedly increasing MS symptoms which intensified almost to the day she finished with Fastax.

Maria Goddard

[260] The testimony of Ms. Goddard was straightforward as I noted above. Her evidence was strong and unimpeached. This evidence did not impact the assessment of the nature of the plaintiff’s problems in December 2004 and early January 2005. As I have found, the bulk of Ms. Jacobs’ symptoms were non-tortious, pre-existing problems with respect to the assessment of the second accident.

CONCLUSIONS ON ACCIDENT #2

Non Pecuniary Damages

[261] The defendant Anna Moyer does not dispute that the plaintiff was already actively and highly symptomatic with respect to her low back pain prior to the motor vehicle accident of January 25, 2005. I have determined that such symptoms were not the result of the motor vehicle accident 21 months prior.

[262] There is no evidence to the effect that there was connective tissue damage sustained in accident #2, as suggested by plaintiff's counsel in argument.

[263] The clinical records of physiotherapist Alan Jones indicate that the plaintiff as of December 15, 2004 was suffering from pain and low back spasm and she had “difficulty maintaining set position”. These problems required intensive physiotherapy, including or in addition to hot packs, ultra sound, massage and instruction on back care exercise. None of the plaintiff's evidence provided a reasonably reliable comparison between this pre-existing active condition and the condition which followed the motor vehicle accident of January 25, 2005.

[264] The plaintiff’s subjective complaints indicate the onset of some neck pain following the second motor vehicle accident. The stated record of Mr. Jones is that the previous lumbo-sacral problems were “further aggravated”, although there is no clear indication as to what this meant. I note the late onset of other symptoms such as pain in her sartorius and adductor longus muscles. There is evidence that the plaintiff did many hours of computer work during a period when all of her symptoms were aggravated. By June 13, 2005, her pain was noted as “slowly diminishing in all affected areas”.

[265] The defendant Moyer submits there is the normal expectation of soft tissue injuries healing within weeks to months following trauma. The plaintiff’s lack of credibility, inaccurate history and sparse medical opinions make it difficult to assess how long her injuries might have taken to heal. I am satisfied that some degree of soft tissue injury occurred in the motor vehicle accident of January 25, 2005. The clinical records suggest intermittent complaints that did not interfere with the day-to-day function of the plaintiff to any great extent. It was the MS relapse in May 2006 that disabled her.

[266] Prior to her relapse, the plaintiff was at Royal Roads University studying for a Master of Business Administration and Digital Technologies Management degree. Her ability to complete these courses with reasonably good grades throughout satisfies me that she was able to cope with the residual pains associated with the normal convalescence from a mild soft tissue injury.

[267] The evidence is not clear whether the plaintiff's MS symptoms or the soft tissue injury from the motor vehicle accident caused the plaintiff's fatigue and cognitive difficulties observed by Mr. Lundeen.

[268] After the May 2006 relapse, the plaintiff was totally disabled by her MS. The x-rays of the lumbar spine taken both before and after the motor vehicle accident of January 25, 2005 showed no significant changes in pathology. None of the medical doctors suggested that there were neurological symptoms pertaining to the soft tissue injuries themselves. Likewise, there is no evidence of a synergistic effect between the MS and accident-related injuries. All neurological symptoms appear to have been related to the MS; the plaintiff's MRIs show that MS caused many large and overlapping lesions in her brain that included “black holes”.

[269] I find that the maximum duration the soft tissue injuries could be reasonably attributed to the motor vehicle accident of January 25, 2005 is from that date until May 3, 2006, when the MS relapse overwhelmed all other concerns. After that point, even if there were residual symptoms, their significance was “miniscule” or unrelated and not attributable to the negligence of the defendant.

[270] From April 1, 2005 to May 3, 2006, the plaintiff’s function was quite high as she was able to maintain a satisfactory level of performance at Royal Roads University. As the plaintiff's friend Tiffany Young testified, the plaintiff was able to meet with her for coffee, to play scrabble and go on walks, even though she had ongoing low back or other soft tissue injury symptoms. Other friends confirmed Ms. Jacobs' attendance at dinners, movies and concerts.

[271] It is not clear how many of the plaintiff's MS symptoms were confused with the soft tissue injury symptoms. The lay witnesses were not in a position to distinguish between the pre-existing symptoms and those that came after accident #2. None of the lay witnesses suggested that the plaintiff did not have an energetic and high degree of function at least until the May 3, 2006 MS relapse. Each described what could reasonably be expected to accompany mild, nagging soft tissue injuries. The plaintiff coped despite these nagging and disruptive symptoms.

[272] Having considered the collection of competing authorities with respect to appropriate non-pecuniary damages, I am satisfied the plaintiff is entitled to $23,500 as a result of the January 25, 2005 collision.

Past Income Loss

[273] There is no evidence upon which to award any past income loss claim from any of the motor vehicle accidents.

Future Income Loss

[274] The motor vehicle accidents are not the cause of any future income loss as the plaintiff is fully disabled by her MS, a condition unrelated to the accidents. She receives long-term disability payments. The medical opinion, which is undisputed, is that her condition is likely to worsen in future despite her temporary stability due largely to chemotherapy. Dr. Devonshire opined that the plaintiff will probably never be employable. She did not assess the plaintiff for soft tissue injuries, and the plaintiff’s assertions of compounded or synergistic disability due to the soft tissue injuries combined with MS do not have the requisite factual foundation to overcome the fact that the plaintiff is fully disabled by her MS.

[275] Dr. Cook’s opinion that the plaintiff was disabled by her soft tissue injuries is inconsistent with the facts in this case. When Dr. Cook said the plaintiff “was not unemployable at this time as a result of motor vehicle accident related soft tissue injuries”, it appears he was referring to a series of visits between January 24, 2006 and April 6, 2006. This did not confirm Ms. Jacobs’ unemployability, as she was working full-time during that period.

[276] Dr. Cook admitted he was unaware of the plaintiff’s complete medical chart before he wrote his medical legal opinion. The plaintiff asked Dr. Cook to assist her in obtaining an extension or leave of absence from the Royal Roads program. This was unsuccessful and the plaintiff continued to attend. Dr. Cook did not do a thorough physical examination of the plaintiff or document ongoing disability until her MS became evident to him. As such, he was in no position to offer opinions regarding past income loss. His now rather dated report fails to address future income loss. Instead, his report supports a finding of total disability based on her MS related frontal lobe impairment, which he opines will affect all aspects of her future life to such a degree that even permanent disability from work will seem minor in comparison. The evidence is that the plaintiff’s MS is incurable and will eventually fully disable her. There is no evidence of any occupation foreclosed to her by soft tissue injuries that is not foreclosed by her much more serious MS symptoms. She has not satisfied the evidentiary onus upon her to demonstrate a substantial possibility of a future event of loss resulting from soft tissue injuries (Parypa v. Wickware (1999), 65 B.C.L.R. (3rd) 155, 169 D.L.R. (4th) 661, and, more recently, Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152).

Future Care

[277] There is no medical foundation for this head of damages. Mr. Geoff Young’s report is irrelevant as it was based upon the report of Ms. Barbara Phillips which was not allowed into evidence.

Special Damages

[278] The plaintiff revised her quantum of special damages for all three accidents from $7,543.13 to $3,550. There is a lack of supporting documents. Special damages are determined at $2,616 as against the defendant Moyer, as counsel did not take issue with that amount.

THE MOTOR VEHICLE ACCIDENT ON NOVEMBER 29, 2005

[279] The rear end collision on November 29, 2005, which involved speeds of only 3 km/h, was a trivial incident. The plaintiff was a seat-belted passenger in the front seat of a car driven by Anthony Hume-Ring.

[280] There is no objective evidence of injury resulting from the November 29, 2005 collision. The plaintiff, on examination for discovery, admitted that whatever aggravation she suffered to existing symptomology was fully resolved within two weeks.

[281] But for the fact that the plaintiff had already embarked on two other lawsuits, it is unlikely that a claim would have been brought arising from this accident.

[282] I agree with defence counsel that a generous award would be between $1,000 and $2,000. I award the plaintiff $1,500 for non-pecuniary damages.

Divisibility of Injuries and Damages Assessment

[283] This is not a case as in Hutchings v. Dow, 2007 BCCA 148, 66 B.C.L.R. (4th) 78, where there was a combination of two or more tortious causes insufficient in themselves but necessary together to create an indivisible harm such as depression, or, as in Athey v. Leonati, [1996] 3 S.C.R. 458, a disc protrusion. The soft tissue injuries have not been proven to “be of a piece”. Nor is there a separate harm such as depression that has been created by them. The facts support only discrete, time limited soft tissue injuries. The only truly separate cause of injury and loss is the plaintiff’s MS condition which was part of her “original position” and was not initiated, aggravated or accelerated by these motor vehicle accidents.

[284] There is no evidence of a compounding or synergistic effect between the accidents and the MS beyond the temporary and minor reference made by Dr. Devonshire while the plaintiff was undergoing a period of chemotherapy. The plaintiff remained employed and active at all material times until the disabling MS relapse.

[285] Damages are therefore segregated on the basis of three separate accidents with no overlapping injuries and no interplay between the MS and the motor vehicle accidents.

[286] The already actively symptomatic soft tissue injury complaints that pre-existed the second accident strongly resembled those that followed the accident. They were not proved to be connected to the first motor vehicle accident. The symptoms were clearly pre-existing and a part of the plaintiff’s “original position”. The second accident must therefore be seen as an aggravation of the plaintiff's condition in accordance with the basic compensation principle (Athey v. Leonati; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333).

[287] This is not a case of concurrent tortfeasors. The third motor vehicle accident was so trivial as to make little difference to the actual damages as set out above. The application of the principles in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3 and Price v. Kostryba leads to the factual segregation of damages for each of the tortfeasors without overlap.

Summary of Damages

Non-Pecuniary Damages	Amount
McLaughlin	$ 8,500
Moyer	23,500
Meehan	1,500
Special Damages
Moyer	2,616
TOTAL	$36,116

[288] All other damage claims are dismissed.

COSTS

[289] If the parties cannot agree on costs, any of them are at liberty to apply for a hearing.

"R.W. Metzger, J."

The Honourable Mr. Justice Metzger

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