2008 BCSC 521 Ross v. McWhinnie

Before: The Honourable Madam Justice Morrison

Reasons for Judgment

Counsel for the Plaintiff	David J. Sinnott
Counsel for the Defendants	Gwen Chambers
Date and Place of Trial:	April 23 and 24, 2008
	Vancouver, B.C.

[1] The plaintiff, Jennifer Ross, was injured in a motor vehicle accident that occurred August 19, 2005 in Delta, British Columbia. The vehicle she was driving was rear-ended while stopped at an intersection. It appears that three other cars behind her were involved in a chain of rear end collisions.

[2] Liability is not in issue, only damages.

[3] At the time of the accident, Ms. Ross, a single mother, age 30, an executive assistant to the head of an engineering firm was en route from work to pick up her five year old son from daycare. She heard a noise, and looked up into the rear view mirror, at which point she felt a hard impact, and said she was snapped forward. Her head snapped quickly forward, according to her testimony.

[4] Immediately after impact, she felt a tight grip at the back of her neck, tingling at the back of her neck. She was crying and felt panicky. A number of emergency vehicles arrived at the scene, she was told to remain seated. The paramedics then arrived and asked if she wanted to go with them. She declined, saying she was fine; they advised her to go and see her doctor.

[5] Her son was 2 ½ at that time, and she proceeded on to pick him up at daycare. She then went to the medical centre where her family doctor, Dr. Adam, practises. He was not at the clinic, so she saw one of his colleagues.

[6] At that time, she told the doctor it felt like two hands were pressing on her neck. It was still tingling. She felt stiffness, particularly in the area of her left shoulder. She was favouring the left side of her neck. There was also a tingling in her ears which lasted for about 1 ½ days. She began to experience headaches.

[7] Her testimony is that the pain on the left side of her neck lasted for quite some time, and she had pain that she described as running from the base of her ears down both sides of her neck. Primarily, her complaints are pain and discomfort to her neck and shoulders, particularly the left side, and severe, long-lasting headaches.

[8] The plaintiff had just commenced a new job five days earlier, and as a single mother, she said she could not leave her job. She could not afford to. She took Advil on a fairly continuous basis.

[9] When she first saw the doctor, she was given three options for treatment for rehabilitation; she chose massage therapy. On August 25, 2005, she began treatment with Mr. Michael Lonquist, a registered massage therapist, whose evidence came in by way of video deposition. Mr. Lonquist was qualified as an expert capable of giving opinion evidence in the area of massage therapy. Approximately 90% of his work involves the assessment, treatment and management of soft tissue injury, musculoskeletal injury and connective tissue injury resulting from motor vehicle accidents.

[10] Ms. Ross received treatment from Mr. Lonquist on the following dates: August 25, August 29, August 31, September 6, September 9, September 14, September 16, September 21, September 28, October 5, October 12, October 14, November 23, 2005; March 24 and June 23, 2006; January 8, 2007. The plaintiff testified that she would have had more treatments from Mr. Lonquist for her symptoms, but she could not always make arrangements to have her son cared for, and it was difficult having to take her son with her for the massage treatments.

[11] The massage therapy gave some temporary relief from the headaches that were of concern to the plaintiff. She said the headaches were always on the left side, that these are headaches that she had never had before. By Christmas of 2005, four months after the accident, the headaches were still of concern. They also existed throughout 2006. The plaintiff could not move her head quickly. She continued always to favour the left side, and she continued with some therapy, but not as often as she wanted to because of financial and childcare concerns.

[12] At work, the plaintiff said she wanted to close her eyes and lie down, but could not. Her headaches would last all day. She would take Advil for relief, and testified that the Advil “just took the top off the pain”. Sometimes the headaches were every other day. She was also still experiencing pain in her neck, on the left side particularly, and that pain and stiffness lasted throughout 2005. In 2006, the same headache pain was there, but it was less often. By 2007, she was still getting some severe headaches. The last time she saw Mr. Lonquist was in January of 2007, when she pleaded with him to let her in on short notice because of the pain.

[13] Ms. Ross believes she has recovered now, although she testified she still gets a headache on the left side of her head.

[14] For a period of four to six months after the accident, she said she simply had to work through her pain. She could not lie down, but had to keep going. Where before, she would pick up six grocery bags and her son from the car, she said she would have to take the groceries in two bags at a time.

[15] Her duties as an executive assistant are wide-ranging. She continues the same work now, although for a different employer. She did not miss any time off work. As she testified, she had no other choice.

[16] The plaintiff was asked about her social and recreational life. She said she did not have a lot of time. She commutes to work, sometimes over an hour each way, comes home, picks up her son from daycare, goes home and prepares dinner. She said throughout the period when her symptoms were ongoing, she just wanted to get home. If she woke up with a headache, she said it would be one that would last all day.

[17] The report of Dr. L.J. Adam was filed. He has been the family doctor for the plaintiff since September 2004, less than a year before the accident. His letter of August 11, 2006 sets out that there was a complete physical examination by him on the plaintiff on December 9, 2004, obviously before the accident. There was no problem at all with her cervical spine at that time. The plaintiff also saw him on August 9, 2005, and again, no problems of that nature.

[18] Then the accident occurred on August 19, 2005. On that date, as the plaintiff testified, she saw one of his colleagues. A week later, August 26, 2005, the plaintiff did see Dr. Adam. He saw her on September 30, 2005 for an unrelated health problem and on January 11, 2006, Dr. Adam last saw the plaintiff prior to writing his letter of August 11, 2006.

[19] Dr. Adam writes that when he saw the plaintiff on January 11, 2006, the plaintiff said that she had no ongoing symptoms from approximately November 2005. However, the plaintiff’s evidence in court is that the headaches continued on through 2006 and into 2007.

[20] Her evidence is corroborated by that of Michael Lonquist. He testified that the plaintiff was reporting weekly headaches, and that she said she could deal with them, but when they escalated to a point where they needed treatment, then she would be in to see him. He said when he would press on the trigger point in her neck, “It was unbearable if I pressed too hard until I released the trigger point.” He described the soft tissue manipulation that he would do, particularly to the area of muscles in her neck.

[21] On her last visit of January 8, 2007, Mr. Lonquist said that the plaintiff reported on her weekly headaches. He felt there was something going on on the left side of her neck to keep this coming back, “There’s something deep in the left side of her neck that I can’t get at...”. He said she was doing her exercises, but that it always came back to the headache. It was his opinion that she probably sprained a ligament which he was unable to palpate or see. That the complaints of her headaches were fairly consistent from her first visit throughout.

[22] Mr. Lonquist also testified, “It’s not a fun treatment when she comes in.” He confirmed that the treatment that he gives to the patients hurts. “Most of them are not comfortable, yes.” There is a lot of pressure that he exerts. It was his opinion that in an ideal situation, he should not have been seeing her anymore, but that there was something going on. He believed it was deep in the left side of her neck which was causing the headaches to recur.

[23] There were two reports filed by Mr. Lonquist, August 3, 2006 and February 16, 2007. His prognosis in August 2006 was that the plaintiff was still suffering from severe headaches. He believed that her work and home life were “far from an ideal rehabilitation situation, and given her state of discomfort at our last meeting my prognosis for Jennifer at this point is guarded.”

[24] In his report of February 16, 2007, again, his prognosis was guarded, “due to the persistence and frequency of her headaches and the difficulty in gauging the amount of scar tissue that has formed from the cervical sprain/strain which occurred from the MVA.” He recommended rehabilitation of further deep tissue work. He also noted that her job requires her to spend a lot of time with the computer, which often leads to poor posture, and in her case could result in excessive fatigue and hyper tonicity in her neck and more headaches.

The Position of the Plaintiff

[25] The position of the plaintiff is that she should be awarded non-pecuniary damages in the range of $15,000 to $25,000, plus special costs for her visits to the massage therapist, Mr. Lonquist, which total $327. Also costs. That the pain in her neck and shoulders was worst for the four to six months following the accident, then there was the period around Christmas of 2005 when she seemed to be getting better, but in 2006 there was a relapse, particularly with regard to the headaches, which lasted all through 2006 and into 2007.

The Position of the Defendants

[26] The position of the defendants is that this was a low impact collision, with minimal damage to the plaintiff’s vehicle. There is an insufficiency of objective evidence with regard to symptoms and injuries. The impact was so slight that Ms. Ross’s vehicle did not strike the vehicle that was in front of her when she was rear-ended.

[27] The defence points to the letter of Dr. Adam which states that there were no ongoing symptoms reported by the plaintiff from November 2005 onward. The plaintiff’s injuries were minor soft tissue injuries, and the headaches ended in mid-September 2005.

[28] With regard to special damages, the defence argues that only the first two months of treatments by Mr. Lonquist would be justified. Further, this matter should have been brought in Provincial Court.

[29] An award for non-pecuniary damages should reflect a period of disability of three months only, and the defence suggests an amount of $2,500 to $3,000 for non-pecuniary damages.

[30] Counsel referred to the Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) case, an oral judgment of Chief Justice McEachern in 1982. Chief Justice McEachern noted that there should be caution when there is little or no objective evidence of continuing injury. $6,000 in general damages was awarded for a moderate whiplash injury. There the accident occurred in 1979 but by the end of 1979 the plaintiff had returned to her part time work and her symptoms were resolving. There were 42 physiotherapy treatments, and gradual improvement over the following year, 1980. I am not sure what general damages of $6,000 in 1982 would translate to now, 26 years later.

[31] In Snesar v. Black Top Cabs Ltd., 2005 BCPC 393, the motor vehicle accident occurred on June 25, 2002, and by the end of the summer, the plaintiff was back to normal activities. The plaintiff had six physiotherapy sessions, and cancelled two of them. He described a neck pain. The court found that he was substantially recovered within six weeks of the accident. $2,000 was awarded for non-pecuniary damages.

[32] The plaintiff in Vuong v. Wong, 2007 BCPC 172, experienced two months of neck pain; $2,000 was awarded in Provincial Court. The Prasad v. Nyari, 2007 BCPC 5, case was also in the Provincial Court. The plaintiff was off work for 3 ½ months. However, the court found there was no objective medical evidence in later months, and the plaintiff did not follow all suggested treatments. General damages of $4,200 were awarded.

[33] Mohammed v. Rai, 2005 BCSC 1918, involved a motor vehicle accident which occurred February 19, 2003. The court found that by June of that year, the plaintiff had recovered. The court was not satisfied that the injuries were as serious or continued as long as claimed by the plaintiff. Also, one of the plaintiffs had quit physiotherapy and exercises which had been recommended. One plaintiff received $3,000 in general damages and the other $5,000.

[34] In Kain v. Kirkman, 2006 BCSC 1770, a motor vehicle accident occurred in September 2001. As in the rest of the cases, this was also a low impact collision, with minor damage to the plaintiff’s vehicle. One plaintiff was awarded $15,000 and the other $6,000 for non-pecuniary damages.

[35] In the case of Nichollson v. Armstrong, 2003 BCSC 1988, an accident occurred in late July 2000, and by November, the doctor testified the plaintiff had recovered. In this case, the plaintiff failed to take steps to mitigate his loss. Amongst other things, the plaintiff discontinued physiotherapy. An award of $6,500 was given for non-pecuniary damages.

Conclusion

[36] First of all, I found the plaintiff to be an extremely credible witness. She was unequivocal when she confirmed that she was now recovered from the effects of the accident. She was equally unequivocal when she described the symptoms, pain and discomfort that she experienced following the accident of August 19, 2005, throughout the rest of that year, then during 2006, and into 2007.

[37] The motor vehicle accident was a minor one, with minor damage to her vehicle, but as Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) reminds us, a minor motor vehicle accident does not necessarily mean minor injuries. In Boag v. Berna, 2003 BCSC 779, Mr. Justice Williamson reflected at paragraph 12, “That a piece of steel is not dented does not mean that the human occupant is not injured.” Another rear-ender, in Boag, the plaintiff experienced pain in the neck and lower back. The court found fairly serious soft tissue injuries, and $14,000 in non-pecuniary damages was awarded.

[38] The other cases cited by the plaintiff include the following: Butler v. Blaylock, [1983] B.C.J. No. 1490 (C.A.); Bartley v. Buckley, 2005 BCSC 1374; Kenny v. Leveson-Gower, 2005 BCSC 447; Rana v. Boparai, 2007 BCSC 1182; and Parihar v. Allan, 2006 BCSC 1505.

[39] In those cases, general damages were awarded between the range of $15,000 to $30,000. And in all, the symptoms and seriousness of the injuries mirror more accurately the symptoms, injuries and length of treatment as found in the case before me.

[40] This plaintiff has done everything to mitigate her damages. She has gone immediately for treatment as recommended and continued with that treatment to the extent that she could, given her normal workday requirements, her duties as a single mother, and her resources.

[41] In my view, she has suffered some serious consequences which have lasted longer than usual. Her headaches particularly have been debilitating for her. I accept the evidence of Mr. Lonquist that the source of those headaches emanates from the motor vehicle accident. I do not accept the defence proposition that her symptoms ended in the fall of 2005, and that she should not have continued with her massage treatments beyond that time. That is not in accord with the evidence that I have accepted, particularly from the evidence of the plaintiff herself and Mr. Lonquist. She is not a young woman prone to exaggeration, in my view.

[42] In my view, appropriate non-pecuniary damages should be awarded in the amount of $18,000. The plaintiff should also receive the special damages claimed, $327, plus costs.

“Morrison J.”

Madam Justice Morrison

Citation:	*Ross v. McWhinnie,*
	2008 BCSC 521