2008 BCSC 486 Hubbard v. Saunders

Before: The Honourable Madam Justice Humphries

Reasons for Judgment

Counsel for the plaintiff	W. H. Bradbrooke
Counsel for the defendant	P. Doherty R. Khangura
Date and Place of Trial/Hearing:	February 26 – 28, 2008
	Vancouver, B.C.

[1] Ms. Hubbard, 37, was involved in a motor vehicle accident on August 8, 2004. She was stopped at a stoplight on Davie Street in Vancouver, B.C. and was struck from the rear by the defendant. Her car was substantially damaged and was written off. Liability is admitted. Ms. Hubbard seeks non-pecuniary damages, past income loss, future loss of capacity, future care costs, and special damages.

[2] Ms. Hubbard suffered soft tissue injuries in the collision, specifically left neck and shoulder pain, and lower back pain. She also alleges a significant onset of depression as a result of the accident.

[3] Ms. Hubbard has a pre-existing history of left neck and shoulder pain, lower back pain, and depression. She first suffered a bout of depression in 1994 following a painful personal episode and the break-up of a relationship. She saw a psychiatrist briefly, and was put on an anti-depressant for a short time.

[4] In 1996, she was involved in a motor vehicle accident. She suffered left neck and shoulder pain, and lower back pain. At the time, she worked as a receptionist, but was unable to keep sitting at a computer. She took a work evaluation course and decided to retrain as a photographer, something that had been a passion of hers. She worked hard at building her business. She put in long hours volunteering, assisting others, building up contacts and establishing a reputation. She became a free lance photographer for Rolling Stone Magazine, which allowed her to combine her passion for music and photography. She began to travel back and forth to Los Angeles for the magazine.

[5] In 1999, she entered into a settlement in respect of the 1996 accident.

[6] Ms. Hubbard continued to build up her business, and after the World Trade disaster in September 11, 2001, she began to focus more on working in Vancouver. She tried to get into the film business doing still photographs, and would regularly attend film sets to build up her hours. She concentrated on wedding shoots and local music events. She was beginning to make a little money and was able to put down a deposit on a condominium. She was beginning to expand her business into photographing babies and pets, and registered a name for that facet of her business: “Bellies and Beyond.” By the time of the accident in August of 2004, she felt she was 99% recovered from the 1996 accident.

[7] Ms. Hubbard had seen a physiotherapist regularly during her recovery from the 1996 accident, and had continued to go once every month or two, to deal with some ongoing symptoms associated with the physical demands of her job.

[8] Ms. Hubbard testified that the 2004 accident put her back to “square one.” She could no longer work the long hours she had been working before the accident. She had trouble lifting things; she had to hire an assistant to carry some of her camera equipment, although she admitted she had used assistants before the 2004 accident as well. Her music shoots were limited because she was not allowed to take an assistant into the pit to help her with her equipment. She put her baby/pets project on hold. She returned to regular physiotherapy visits and had to attend medical appointments, all of which cut into her time.

[9] She was unable to replace her car.

[10] Despite these difficulties, she tried to keep working and establishing her business. She continued to do some travelling. She had significant neck, shoulder and back pain, and by December of 2004, her doctor noted that she was in a low mood.

[11] This low period continued through to the summer of 2005, when she felt very depressed, and borderline suicidal. She testified that she felt sad, sore and frustrated. Ms. Hubbard testified that her neck was somewhat better by this time, but she could not bend or lift equipment. She said she would feel she was getting better, but when she carried cameras and equipment, she felt she was getting worse. Her back remained sore, and she would use alcohol to help with the pain.

[12] Her doctor prescribed an anti-depressant and sent her to a psychiatrist in July of 2005. The session with the psychiatrist went very poorly from both points of view. Ms. Hubbard said she attended the session ready to talk and open up as she needed help, but she felt uncomfortable with the doctor immediately. He had a student with him and Ms. Hubbard felt the doctor was showing off. She felt that he confronted her inappropriately with past experiences and seemed determined to account for her present problems by referring to things that had happened in 1994. He was then critical of her for not remembering her previous visit to a psychiatrist 11 years earlier.

[13] The doctor’s report, which in fact appears to have been written by the student, bears out some of Ms. Hubbard’s concerns. It has a critical, disparaging and even defensive tone. I do not draw any adverse inferences against Ms. Hubbard on the basis of her refusal to attend further sessions with this psychiatrist.

[14] However, the doctor did confirm the appropriate use of the anti-depressant, and Ms. Hubbard continued to take the pills. She responded well to the medication and by the end of 2005, she was doing much better, although she still felt stiff and sore after working.

[15] Ms. Hubbard was planning a trip to Australia in late 2005. She attempted a scuba lesson, hoping to do some diving in Australia. The one dive she attempted did not go well because of some sinus difficulty and she ended up in the emergency department. This is alleged to be of significance because she told the work capacity consultant in 2007 that she did not feel she could scuba dive, although she would like to. When confronted with the emergency record at trial, she said at trial that she had not recalled the one failed attempt two years earlier.

[16] Ms. Hubbard took the trip to Australia in December 2005 and had a good time, but upon her return her doctor noted an increase of neck and back pain and a worsening mood. Ms. Hubbard had stopped taking her anti-depressant because of the associated weight gain. The doctor prescribed Prozac. This improved her mood, but within a few months she was suffering the side-effects from the Prozac as well. Her doctor switched her to another anti-depressant. She responded well.

[17] She exercised regularly by swimming, going to the gym and hiking.

[18] Her neck and back pain were still present, although she continued to improve. She saw her family doctor, Dr. Stewart, until that doctor left her practice in early 2006. Ms. Hubbard was then seen by Dr. Stewart’s replacement, Dr. Ip. Dr. Stewart said Ms. Hubbard had improved significantly by January of 2006, although she still had exacerbation of pain with some of her regular work activities. Dr. Stewart recommended continued physiotherapy and anti-depressants.

[19] In the summer of 2006, Ms. Hubbard was involved in a new relationship, and felt happy. When her mood lowered in September, her dose of the anti-depressant was increased. She and her new boyfriend drove to Ottawa to spend Christmas with her parents.

[20] In early 2007, she suffered from an ectopic pregnancy that had to be terminated. It was a difficult and traumatic experience. In addition, her relationship ended. She became seriously depressed again.

[21] In March of 2007, she complained of persistent neck and back pain and her doctor recommended more physiotherapy and acupuncture.

[22] On April 24, 2007, Ms. Hubbard was assessed by the defendant’s orthopaedic specialist, Dr. Bishop. In his opinion, she had mechanical neck and lower back pain. He felt she could return to or continue with all of her normal pre-accident activities. Increased activity would likely increase her symptoms as part of the normal recovery pattern. He strongly advised against passive treatments.

[23] Dr. Ip, her family doctor as of March 2006, provided a report in June 2007. She said Ms. Hubbard’s condition had changed little over the previous year. She said that although Ms. Hubbard had improved significantly, she still experienced exacerbations of pain at work. She recommended intermittent physiotherapy and anti-depressants, and added acupuncture and massage.

[24] In late 2007, Ms. Hubbard’s lawyer referred her to an independent psychiatrist for an evaluation. She had a good rapport with this doctor, but she testified that dredging up memories was very upsetting. She became depressed again at Christmas and her family doctor recommended a psychiatrist and counselling. Ms. Hubbard has not followed up on this. Instead, she took a trip to Panama with a group of people associated with her wedding photography.

[25] At trial, in February of 2008, Ms. Hubbard said she was seriously depressed, particularly at all the bad memories that had been brought out by her visit to the psychiatrist, and sometimes found it difficult to get out of bed. However, she said the present medications seem to be working well.

[26] At the request of her counsel, Ms. Hubbard saw a work capacity evaluator and a physiatrist in November of 2007. The work capacity evaluator, Ms. Fischer, found Ms. Hubbard to be capable of continuing her work as a freelance photographer, with some limitations in lifting, carrying and tolerance for certain postures. The findings of the physiatrist were similar; he acknowledged Ms. Hubbard’s report of pain with some activities, but said her symptoms and ability to function should improve with trigger point injections and she should be able to pursue her present career without any significant restrictions. He noted some long-standing and pre-existing neck and shoulder tightness which he thought would never be completed resolved.

[27] From all the medical reports and from her own evidence, Ms. Hubbard appears to have recovered from the physical effects of this accident by late 2005 or early 2006 in the sense that she had ceased experiencing daily and ongoing pain. However, she continues to have and can expect to have bouts of pain depending on her activities. This is somewhat similar to the same state she was in prior to the accident, when she could work long hours, attending physiotherapy once in awhile if she was experiencing discomfort caused by her job. However, I accept that the effects of over-exertion and work-related activities since the second accident are more limiting than they were just prior to it.

[28] As for her depression, it is entirely reasonable that a person in Ms. Hubbard’s position, having put together a career through her talent and hard work, only to have such a physical set-back just as she was getting it going, would be depressed, and that this depression would increase as her physical pain persisted and interfered with her work. It is greatly to her credit that she has pulled herself together and continued to press on with her career. This is a very difficult thing for a person who is self-employed with no one to fall back on, but Ms. Hubbard has done it. She has not malingered. As her counsel says, she did not go hide in a dark room. She got out, sought help, did her exercise programs, pursued her business contacts, and has made more money this year than she ever has.

[29] Dr. Smith, the psychiatrist Ms. Hubbard saw in late 2006, suggests all of her depression is a result of the accident, but she does not appear to have had all the facts. Ms. Hubbard was doing very well in the summer of 2006, but by early 2007, she experienced the ectopic pregnancy and the loss of her relationship. The depression that followed those events cannot be blamed on the accident.

[30] According to Athey v. Leonati, [1996] S.C.R. 458:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position.” The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage.

[31] In my view, the non-pecuniary damages for which this defendant is responsible should be assessed on the basis of approximately eighteen months of mild to moderate neck, shoulder and lower back pain, with occasional continuing and ongoing flare-ups depending on Ms. Hubbard’s activities, with depressive symptoms occurring over a similar period, with some additional time while her medications were adjusted for side-effects.

[32] Plaintiff’s counsel suggests that an award of non-pecuniary damages of $70,000 would be appropriate. He referred to Brown v. Ryan, 2000 BCSC 680, in which the trial judge found the plaintiff would suffer debilitating pain for the rest of her life, and was awarded $80,000 in non-pecuniary damages (aff’d 2002 BCCA 83) 97 BCLR 3d, 8 B.C.L.R. (4^th) 245. In Schellak v. Barr, 2003 BCCA 5 (leave to SCC refused (2003) 321 N.R. 198 (note), a similar award was upheld in a case in which the plaintiff was found to be suffering from chronic pain, which caused functional and cognitive difficulties.

[33] The Defendant suggests non-pecuniary damages of $15,000 to $25,000. Defendant’s counsel provided a number of cases supporting the range he suggests. For example, in Kirk v. Frocklage, 2003 BCSC 922, the trial judge awarded non-pecuniary damages of $25,000 where he found the plaintiff to have suffered neck and shoulder pain for about two years, but found her emotional problems were not caused by the accident. A similar award was given in similar circumstances in Ferraras v. Pettie, 2002, BCSC 1672.

[34] Ms. Hubbard was required, as a result of this accident, to cope with and recover from both physical injuries and depression, but she is not expected to have chronic and debilitating pain for the rest of her life. Therefore the authorities cited by both parties provide more of a set of parameters for an appropriate range of damages, rather than situations of direct application.

[35] In my view, the depression that followed upon the August 2004 accident is at least as debilitating as the physical injuries, although they are obviously interconnected. I accept that the ongoing pain and suffering, the inability to function as she had done, the necessity of having to start recovery again, and the natural and ensuing depression significantly affected Ms. Hubbard’s enjoyment of life, self-esteem, and sense of self-worth for a period of 18 months to two years. An appropriate award for non-pecuniary damages is $45,000.

[36] The defendant contends that there are no figures to support a claim for loss of income, either past or future. He says the plaintiff could have produced her receipts but did not. Her income tax returns do not support a loss of income. There is only her anecdotal evidence that she had to work less than before the accident. The plaintiff testified that her computer had crashed and she lost a lot of documentation. She produced evidence of the crash and, along with her income tax returns, thought she had satisfied the defendant’s requests for documents.

[37] It is indeed difficult to assess changes in the plaintiff’s level of work because, being self-employed, she has made an effort to work as much as she can and, even when she is not working, to exaggerate her abilities and how busy she is in order to attract clients. Her counsel admits the evidence of income loss is flimsy, but submits that, given her physical symptoms and depression following the accident, there is a loss which must be assessed.

[38] The defendant is correct in saying that there is no documentary evidence to support a wage loss. Her income tax returns are not helpful to her, although she testified that she has changed accountants and the returns are being reviewed or redone – her understanding of the process was vague. In 2000, Ms. Hubbard made about $53,000, with expenses of about $13,000; in 2001 she made about $49,800, but had very high expenses and recorded a loss of about $8400; in 2002, she recorded a loss of about $17,000; in 2003, she recorded a loss of about $2500; in 2004, she recorded income of about $4000; in 2005, she said she was doing fewer weddings but charging more for them and recorded income of about $19,000. In 2006, she said she started up her baby/pets photography and has done better. She made about $85,000, with expenses of about $58,000.

[39] The real evidence on the issue of whether Ms. Hubbard lost any income as a result of the accident is her own testimony. Ms. Hubbard struck me as a courageous person who has overcome a series of unfortunate events in her life with determination and hard work. Dr. Hirsch, while acknowledging the difficulty of quantifying the severity of injuries almost three years post-accident, considered all the information put before him and said he thought it reasonable to assume she had significant symptoms and associated vocational restrictions for at least four to six months after the accident as a result of the injuries she suffered.

[40] It is only common sense that a self-employed person whose work depends on dealing with the public, persuading people to hire her, and being able to carry heavy cameras and position herself quickly in order to take pictures must be able to rely on physical agility and a pleasant personality in order to work to her full capacity. I accept that Ms. Hubbard was putting in many hours building her contacts and working on various facets of her business just prior to the accident, and due to her temporary physical limitations and some periods of depression, she was able to work less after the accident for a period of time. However, the amount of the loss is not amenable to a calculation, and many of the hours she put in were not necessarily hours for which she would be able to bill a client. As well, her earnings in the years prior to the accident were very low; in fact, she made more in 2004 than she did in 2002 and 2003. I assess an amount of $3,000 for past wage loss based on the plaintiff’s evidence of the restrictions she faced in carrying on with her existing business and the delay in her plans to expand her baby/pet photography.

[41] I agree with the defendant that there is no evidence to support a loss of future income. Ms. Hubbard’s income has been rising steadily, so she has not established the likelihood of a future loss of income.

[42] As for loss of capacity, Ms. Hubbard is generally back to her pre-accident state, but according to Jody Fischer, the occupational therapist who prepared a report in November of 2007, she has some physical limitations in lifting and carrying, crouching, reaching and prolonged standing. According to Ms. Hubbard, she did not have those limitations before this accident, and I accept her evidence on that point.

[43] Ms. Fischer notes some “restrictions and challenges” in Ms. Hubbard’s physical capabilities. Dr. Bishop and Dr. Hirsch, who saw her in 2007, three years after the accident, note her ongoing pain with increased activity, although both say she will likely recover fully. Her family doctor, Dr. Ip, notes the same symptoms and is of the opinion that they will continue.

[44] Given these ongoing restrictions, which, after three and a half years, still exist, I accept that Ms. Hubbard is, to some extent, diminished in the work place and in her own estimation; she is somewhat less valuable overall to herself as a person capable of earning income in a competitive labour market. She has met the tests in Brown v. Golaiy, 26 B.C.L.R. (3d) 353; [1985] B.C.J. No. 31. However, Ms. Hubbard suffered some restrictions in employability as a result of the first accident, which caused her to retrain. This defendant is liable only for the diminishment in her earning capacity which is attributable to this accident. Keeping all these factors in mind, and realizing that this is an imperfect exercise, I award $10,000 for loss of capacity.

[45] I agree with the defendant that the plaintiff has not established entitlement to an award for future care. Dr. Ip recommends continued physiotherapy but did not appear to be aware that the plaintiff used physiotherapy prior to the accident. Ms. Hubbard is at the point where she was prior to the accident in respect of her attendance at the physiotherapist – she attends physiotherapy occasionally in order to deal with the physical demands of her job. Dr. Bishop recommends against passive therapy; so does the physiatrist, Dr. Hirsch, whom Ms. Hubbard saw at her counsel’s request. I accept that evidence. It may be Ms. Hubbard’s choice to continue her occasional visits to physiotherapy, but it is not the defendant’s responsibility.

[46] Dr. Hirsch recommended trigger point injections at various locations, and noted that these are funded by the Medical Services Plan.

[47] Dr. Ip recommended future psychological counselling and anti-depressants, but given my finding that any depression that was caused by this accident was over as of the fall of 2006, this cannot be laid at the feet of the defendant. Ms. Fisher recommended an activity program, and possibly a personal trainer, but this seems to be just general good advice and not a specific requirement relating to this accident.

[48] Having paid for the physiotherapy treatments up to May of 2007, the defendant agrees to cover the user fees for that period as well.

Result

[49] In the result I award the following damages:

Non-pecuniary damages - $45,000

Past wage loss - $3,000

Loss of capacity - $10,000

No award for future care

[50] Unless there is a reason to speak to costs, the plaintiff will have her costs at Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries

Citation:	*Hubbard v. Saunders,*
	2008 BCSC 486