2008 BCSC 556 Crichton v. McNaughton

Before: The Honourable Mr. Justice A.F. Wilson

Reasons for Judgment

Counsel for the Plaintiff:	A. de Turberville
Counsel for the Defendants:	K. Whitfield
Date and Place of Trial:	February 26-27, 2008 April 21, 2008
	Nanaimo, B.C.

I. Introduction

[1] This action arises from a collision which the plaintiff, Sheri Levy, formerly Sheri Crichton, alleges occurred between the vehicle she was driving and one driven by the defendant, Devin McNaughton, and owned by the defendant, Barry Audin (“the McNaughton vehicle”). The collision is said to have occurred at the corner of Wall Street and Bowen Road, in Nanaimo, at approximately midday on July 15, 2005. The defendants deny there was any collision between the vehicles. The issues at trial are thus, first, whether there was a collision, and, second, if there was, what damages were sustained by Ms. Levy.

II. Liability

A. Evidence of Sheri Levy

[2] Ms. Levy says she was driving her family minivan, a 1990 Plymouth Voyager, on the way home after doing some shopping in the late morning of July 15, 2005. She drove south on Wall Street to the intersection with Bowen Road, then went into a lane to turn right onto Bowen Road. That is a single lane, requiring drivers to yield right of way to vehicles traveling west on Bowen Road. Ms. Levy says she stopped in that lane, as there was a vehicle going through the intersection on Bowen Road. She had her foot on the brake. At that point, she was hit from behind by the McNaughton vehicle. She says her vehicle was moved forward as a result of the impact, enough that the purchases she had made which were on the centre seat fell onto the floor.

[3] After the impact, Ms. Levy says that she got out of her vehicle, and walked towards the vehicle which had struck her, a pickup truck. She said the driver did not get out at first, but motioned her to move forward. She refused to do so, and said that he had hit her. He then got out of the truck.

[4] Ms. Levy says that the taillight on her minivan was cracked, with a piece missing, and the license plate bent. However, the taillight and license plate were not produced, nor were there any photographs of the damage. Ms. Levy says that she did take photographs of the damage, which were on a computer at home. However, she says those photographs were lost when the hard drive of the computer was damaged by a virus.

[5] Ms. Levy says that before she started out on that trip, she had done a check of the vehicle, and the taillight was not cracked at that time. She says the other driver also pointed out scuff marks on the fender, but she does not know if those were caused by the collision.

[6] Ms. Levy says that the two of them exchanged information, and that the driver of the truck told her to take the minivan to his auto body shop to have it fixed. However, she did not do that. In fact, she says no repairs were done to the minivan. She says that it was traded to a mechanic in exchange for repairs to another vehicle the following year.

[7] Ms. Levy says that she reported the accident to I.C.B.C. She admits that she was requested to bring the vehicle in for inspection, but did not do so.

B. Evidence of Devin McNaughton

[8] On direct examination, Mr. McNaughton said that in July 2005, he was working for Mr. Audin and driving his Ford F250 pickup. He said it was used for off-road driving, and had a heavy-duty front bumper.

[9] Mr. McNaughton said that he came up Wall Street, intending to make a right turn onto Comox Road (the name of the road before it changes into Bowen Road). He says he saw the brake lights of the van in front of him go on, that he steered around it, and ended up stopped beside it. He said that his vehicle came to a stop parallel to the van, with his front bumper beside the front bumper of the van. He said that a woman got out of the van, and said that he had struck her vehicle. However, he said, “It is my opinion that I did not”. He said he looked at her vehicle, saw the broken taillight, and a scratch on the rear bumper, but that there was no broken glass on the roadway. He said, “She made me believe I had caused it – she said I hit her, I wasn’t sure if I did or not” (based on my notes, which may not be verbatim). He said he felt no impact. However, he admits that he did offer to pay for the repairs. He said he did that because he thought if he had hit her vehicle, he was responsible to pay for it. That does indicate, at least, some uncertainty on his part as to whether there was an impact.

[10] On cross-examination, Mr. McNaughton says that there was six feet between the passenger side of his vehicle, and the driver’s side of her vehicle when they were stopped. He agreed that there was a pedestrian island to his right, and said that they were between it and the sidewalk. He was then shown photographs of the turn lane, and the traffic island, Exhibit 4. There does not appear to be enough room for the van and the pickup to be side by side in the gap between the sidewalk and the traffic island, certainly not if there was six feet between the passenger side of his vehicle, and the driver’s side of hers. Mr. McNaughton then said, for the first time, that the driver’s side of his vehicle was up on the traffic island. At the end of cross-examination, he did agree that it was possible that he had hit Ms. Levy’s vehicle.

C. Gordon Thompson, Estimator

[11] Mr. Thompson, an estimator employed by I.C.B.C., did not inspect Ms. Levy’s van, as it was not brought in as requested. However, he did inspect the Ford pickup, and took pictures. He confirmed that it did have a steel checkerplate front bumper, an after-market accessory, welded to the frame. He said there was no sign of new damage. However, on cross-examination, he conceded that the vehicle, with that bumper, could cause damage to another vehicle without it showing.

D. Other Evidence

[12] Jennifer Bricker, a friend of Ms. Levy, and Allene Schickerowsky, her mother, also gave evidence which may be relevant to the issue of liability. Ms. Bricker gave evidence of complaints made to her by Ms. Levy (admissible only for the fact of the complaints, not the truth of them) and also her observations of how Mr. Levy was carrying herself stiffly, and was not able to pick up her youngest child. Ms. Schickerowsky also gave evidence of complaints made by Ms. Levy after the accident, noted that she was in apparent pain from the way she carried herself, and that she was less active, especially with the children, after the collision.

E. Finding

[13] I find there was a rear-end collision between the vehicle driven by Mr. McNaughton and that driven by Ms. Levy. I accept that could well have happened without Mr. McNaughton being aware of it, with the heavy steel bumper on the pickup nudging the rear bumper of the van. That is indicated by the fact that he initially did not get out of the pickup, but motioned Ms. Levy to move her vehicle forward. There are suspicious circumstances: the fact that Ms. Levy did not make her vehicle available for inspection by I.C.B.C.; the absence of the damaged taillight or photographs of the damage; and the lack of glass from the taillight on the roadway. However, Mr. McNaughton’s explanation of what happened, that he ended up beside Ms. Levy’s van, parallel to it, but six feet away from it, makes no sense, particularly when the photographs showing the traffic island are considered. Further, Mr. McNaughton seemed uncertain, even in his direct examination, as to whether his vehicle hit the Levy vehicle. In cross-examination, he conceded that it is possible that he did. In fact, I find that his belief about whether his vehicle struck the Levy vehicle is stronger than a mere possibility. If he did not believe that he had struck it, I find that he would not have offered to provide the repairs.

[14] I thus find that there was a minor collision, based on the evidence of Ms. Levy and Mr. McNaughton. I am not dissuaded from that view by the evidence of Mr. Thompson, in light of the heavy-duty nature of the front bumper. I find some corroboration for the collision in the evidence of Ms. Bricker and Ms. Schickerowsky of the fact of complaints made to them, and observations of Mr. Levy after the collision.

[15] As there is no evidence of any fault on the part of Ms. Levy, I find Mr. McNaughton wholly responsible for the collision. The only evidence is that he was driving the vehicle with the consent of Mr. Audin. I thus find Mr. Audin vicariously liable pursuant to s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

III. Effect of Collision on Ms. Levy

A. Evidence of Ms. Levy

[16] Ms. Levy says that, although she was wearing her lap and shoulder seat belt, and the van had captain’s chairs with high backs, she went forward and hit the steering wheel, and then back against the seat. She said that following the collision she was shaken, nauseated, and had a headache. However, she was able to telephone her husband on the cell phone to ask him what to do. She says that at that time she had pain in her neck and upper back, and that the headache was worse.

[17] Ms. Levy did go into the clinic where her regular family doctor, Dr. Mann carried on practice. However, she saw Dr. Anthony. His clinical note indicates:

Motor vehicle accident [RFV]

Neck Strain. MVA today. 3 hrs ago. Driver Dodge Caravan, stationary, L&D seatbelt, highback seat. Struck rear left by 3/4 ton pickup & damaged taillight. Immediate discomfort left trapezius – scapular area. Discomfort back of head, no prior injury. O/E: neck ROM all 20-25% restricted, very tender left trapezius. DX – soft tissue injury. RX: ibuprofen, stretch exercises. See 7-10 days PRN.

[18] The clinical records do indicate that Ms. Levy had previous medical problems in 2005. On January 27, 2005, the clinical note indicates:

Back Pain [RFV]

Lumbar back pain. (l) hip: 8 years ago trouble during pregnancy. Over last year increasing episodes of bilateral lumbar pain with WT bearing. Pivoting to turn causes radicular pain. No bowel or bladder control probs. P: Xray, Advil, stretches.

[19] As a result, she had lumbar spine and pelvic x-rays, which were negative. However, she was back in the clinic on February 8. The clinical note indicates the following:

Back Pain [RFV]

PAIN X 3 MONTHS, COMES ONCE/MONTH, LEFT SI AND HIP AREA, LIKE SHE HAD DURING PREGNANCIES. SEEMS MUCOSKELETAL. REASSURED, DO EXERCISES, SEE PRN.

PHYSICAL EXAM

BACK

TENDER ON LIGHT PALPITATION AROUND LEFT SI JOINT AND DIFFUSELY AROUND THAT AREA, FULL ROM.

[20] The complaints preceding the motor vehicle accident related to her low back. There is no indication of low back complaints on the date of the collision or subsequently until July, 2006. Also with respect to the July 15 visit, there is no indication of muscle spasm. Dr. Dunlop prescribed medication, exercises and for Ms. Levy to return in seven to ten days.

[21] Ms. Levy said that she continued to have pain in the neck, the left upper back, and headaches. She returned to the clinic four days later, on July 19, and saw Dr. Boshoff. His clinical note is as follows:

Motor vehicle accident [RFV]

MVa FRIDAY – SAW DR. DUNLOP. Neck & BACK PAIN. USED ADVIL – NO EFFECT. STILL QUITE SORE. O/E: TENDER TO TOUCH, ROM LIMITED DUE TO PAIN, NEURO – LOTS OF PAIN LEFT NECK & BACK. RX: NAPROXYN 500 MG BID, BACLOFEN 10 MG TID. MASSAGE RX.

[22] With respect to the reference to the back, Dr. Mann gave evidence by deposition, that he thought the reference to the back related to the upper back.

[23] Although Ms. Levy says that she was having muscle spasms, again there is no note of that on the clinical note. There is a note of spasms in Dr. Mann’s clinical note, dated July 21, 2005, which reads as follows:

Motor vehicle accident [RFV]

MVa 15 july. has van clipPed by a truck from behind. perhaps no damage to truck (driver denied any contact). some damage to back of her van. lots of pain & spasm (lt) back and scapular area. works as house painter. cont exercise, heat/cold. rx: t3 x 100. see 1 wk.

PHYSICAL EXAM

BACK: TENDER AROUND SCAPULA
Gait: “STIFF”
NECK: ALL ROM 50%, ALL PAINFUL
Shoulders: LT. FULL ROM, BUT PAINFUL

[24] That clinical note indicates that, while Ms. Levy complained of spasm, no spasm was noted on the physical examination.

[25] Ms. Levy’s next visit to Dr. Mann was on July 28, 2005, when his clinical note is as follows:

Motor vehicle accident [RFV]

doing ok. improved rom, tho’ still lots of pain. getting massage. working on rom. stay off 1 more wk, then back to work. see prn.

PHYSICAL EXAM

back: flexes to touch knEES
neck: 75-100% ROM, PAIN at extremes

[26] Despite Dr. Mann’s indication that she could try to go back to work after a week, Ms. Levy did not return to painting that season, which ended around the end of October. She says that her employer did not want a person on the jobsite when that person was taking medications. She also said that she would have problems lifting her left arm above her head, needed to use a high roller, to lift ladders, and to paint. She says she had physical limitations at that time, that such activities as transferring her laundry from one machine to another, vacuuming and cooking were difficult. She said what she found most distressing was that she was unable to pick up her son, then aged 2. She could not put him in or out of a grocery cart, and it was hard to put him into his car seat. She was not able to wrestle with the children as she had previously done. She also gave up previous activities, such as bicycling and playing catch.

[27] Ms. Levy says that she had massage therapy over the summer until about mid-September. At that time, she was cut off by I.C.B.C., and could not afford further treatments herself. She said that the massage therapy had helped in regaining mobility.

[28] Ms. Levy next saw Dr. Mann on September 2, when his clinical note indicates as follows:

Motor vehicle accident [RFV]

still getting massage 2/wk. doing exercises. not at work. some improvement. refill baclofen Tid x30, tylenoL no 3 1-2 daily x40.

PHYSICAL EXAM

Neck

almost full r.o.m., though all moVements painful, neck muscles TENDER

[29] On September 22, 2005, Dr. Mann’s clinical note is as follows:

Motor vehicle accident [RFV]

still HEADACHES AND NECK PAIN. THERAPIST SAID NEEDS MORE massage. GIVEN NOTES. SHERI NEEDS 2 MORE WEEKS OF MASSAGE, THEN SHE should HAVE A GRADUATED RETURN TO WORK OVER 2-4 WEEKS. (EXTERIOR HOUSE PAINTING). RX: tylenoL no 3 x 20.

PHYSICAL EXAM

GAIT NORMAL BUT HOLDS NECK STIFF.

Neck

full rom, MODERATELY painful, nUCHAL muscles TENDER

[30] Ms. Levy says that Dr. Mann and Mr. Paradis, the massage therapist, gave her stretching exercises for her neck, which she says she is still doing.

[31] In his evidence on deposition, Dr. Mann gave the opinion that Ms. Levy had achieved “full functional recovery” by October 31, 2005.

[32] In early November 2005, Ms. Levy did attempt to return to work, doing an interior painting job. That job lasted 32 hours, and caused her pain in the neck and upper back, and muscle spasms as she was rolling ceilings. However, it appears that she did not return to see Dr. Mann at that time.

[33] At the end of the outdoor painting season, Ms. Levy would normally have applied for and received regular employment insurance benefits. However, she had not received the necessary hours to qualify for such benefits. She did work for three weeks as a returning officer for Elections Canada in December, 2005, and January 2006. She also worked for 26 hours on a private painting job in March, 2006. On April 2, 2006, she returned to her employment with Home Pro, and was promoted to the position of foreman. That position involved less overhead work, only when the job was falling behind schedule. However, she said if she did that work, she got neck and upper back spasms, and headaches lasting for two to three days. She thus received assistance with any overhead work. She did return to see Dr. Mann on April 27, 2006, with complaints of ongoing problems with pain in the left side of her neck, and spasms on the left upper back. His clinical note is as follows:

Motor vehicle accident [RFV]

still neck and upper back pains. I.C.B.C. issue ongoing. however appears fully functional. went back to work, painting. pains mostly at rest. also plays and coaches basket ball. discussed incipent pain syndrome in detail. she has good insight. continue activities, add aerobic activity.

PHYSICAL EXAM

back

tender to left of spine on light palpation. good rom, touches toes.

gait normal

Neck

tender left neck muscles, full rom though painful

[34] Ms. Levy says the reference to playing basketball is an error, that in fact she only coached at her stepdaughter’s school.

[35] Ms. Levy did continue with the pattern of painting during the season of April to October in 2006, then collecting employment insurance benefits. She said that by the end of 2006, she was still having problems with her neck and upper back spasms. However, she was doing less lifting as she had been promoted to assistant manager, then trainer/manager. She thus had reduced symptoms, with only occasional headaches and muscle spasms. However, she says she was still not able to do the activities she could before the accident, such as wrestling with her son and giving him “airplane rides”. She was not able to ride a bicycle without having neck pain.

[36] Ms. Levy apparently had a recurrence of the problems with the low back pain in 2006, as indicated by clinical records dated July 18, 2006 and December 21, 2006. In the July visit, the reason for the visit is shown as being back pain, but Ms. Levy had multiple complaints, including in her chest, right hip, and low back. However, there are no neck or upper back complaints noted. On December 21, the complaints related to occasional low back pain. However, there was also a visit on December 15 for ongoing upper back pains.

[37] The low back pain apparently continued in 2007. Dr. Mann’s clinical note of March 30, 2007, indicates intermittent low back pain while working as a decorator, which Ms. Mann related to the motor vehicle accident. It is the opinion of Dr. Mann, however, that it does not relate to the motor vehicle accident. I accept that opinion, as the problems with the low back preceded the collision.

[38] On May 3, 2007, Ms. Levy again saw Dr. Mann as a result of neck pain. It was indicated to be intermittent, with spasms and tingling in both arms. However, Ms. Levy is indicated as being fully functional, and working at painting house interiors. That conflicts with what Ms. Levy says she was told by Dr. Mann: that if the overhead work was causing her neck pain and back spasms, she should not do it any more. That is not indicated either in Dr. Mann’s deposition or in any medical report from him. I do not accept that there is medical evidence establishing that Ms. Levy was disabled from overhead work. However, I accept that Dr. Mann may well have said something to the effect that if overhead painting hurt her, she should stop doing it. I do accept that she did, in fact, have pain in her upper back and neck when doing overhead work, and that as a result she did not do it. However, with her new job responsibilities, that was not a significant part of her work.

[39] On August 9, 2007, Ms. Levy sustained an injury at work, when she fell off a truck when using an extended pole. The primary injury was to her legs. Ms. Levy does not allege any aggravation of her upper back or neck injuries as a result of that injury. However, there is an issue as to whether she sustained a head injury, which may have caused the trapezius spasm found by Dr. Chin in his examination on November 7, 2007. In that report, Dr. Chin reports that Ms. Levy told him that she hit the left side of her head in the accident. She also told him that following the accident at work, she noted “slight increase in neck pain and stiffness”, but that they had settled down to the level they were at before her injury at work.

[40] The Emergency Department records of the injury do not indicate any complaint of head injury or any indication of it on the primary assessment. An x-ray was done of Ms. Levy’s neck on September 5, 2007, but that appears to have been part of a complete physical examination done by Dr. Balfour on that date, rather than to arise from the work injury. In his clinical note relating to that physical examination, Dr. Balfour noted some residual neck symptoms in relation to the car accident, which had not been investigated, and that he would review the x-ray results when available. There thus does not appear to be any indication of injuries to the head or neck in the fall at work which would explain the “significant amount of trapezius spasm on the left side” seen by Dr. Chin on November 7, 2007.

[41] Ms. Levy was disabled until January, 2008, as a result of the injury at work on August 9, 2007. She received physiotherapy during that time. She has, however, done contract work for Corrections Canada in its vocational training program for painters. She indicated she plans to return to Home Pro at the start of the exterior painting season in April, 2008.

[42] Ms. Levy reported that her neck and back are now slightly stiff, with occasional muscle spasms. She does not indicate any significant restriction of her activities at this time. However, she said that she would use massage therapy for the neck and upper back, if it was available.

B. Medical Reports

[43] The only reports of Dr. Mann which were filed are two brief reports dated August 13, 2005 and February 21, 2006.

[44] The 2005 report is a one page report of the injury. It noted complaints of pain in the back of the neck and the left scapular area. It also reported under “Objective Findings” that there was tenderness and spasm in those areas, and that all movements of the neck were 50%. However, on his deposition, Dr. Mann agreed that he did not have any findings of spasms on his examinations, that they were only reported by Ms. Levy. He also agreed that when he saw her on July 28, 2005, she had a 75% to 100% range of motion in the neck. At that time, Dr. Mann considered that Ms. Levy would be disabled from work for a further period of a week or two from July 28, 2005.

[45] In his letter of February 21, 2006, Dr. Mann indicated that Ms. Levy was unable to do her normal work as a painter between October 10 and 30, 2005. At that time, he had not seen Ms. Levy since September 22, 2005. When he had seen her then he noted no muscle spasms, and found that Ms. Levy had a full range of motion of her neck. However, on the deposition, he indicated that he considered that she was not able to work normally as a painter in the latter part of October, based on pain reported at his examination in September, and his impression that she was highly motivated to return to work.

[46] Dr. Mann apparently also prepared a report dated November 22, 2007, which was not produced at trial. However, it was produced to counsel for the defendants at the deposition. At the deposition, Dr. Mann gave evidence that he considered that Ms. Levy was “functionally recovered” by October 31, 2005. He agreed that any ongoing problems had a complex origin, that the motor vehicle accident was a factor, but that there were many factors, including stress and the stress of an accident. It was his opinion that the workplace accident on August 9, 2007 did not aggravate any of the injuries received in the motor vehicle accident.

[47] Ms. Levy was examined at the request of her counsel by Dr. Chin, an orthopaedic surgeon, on November 7, 2007. Ms. Levy reported to Dr. Chin that, after the initial three month period when she was off work, her pain symptoms had remained essentially the same, and had not improved. That is contrary to her evidence at trial, that there has been improvement since August 2005.

[48] Dr. Chin reports the results of his physical examination as follows:

Cervical range of motion today was measured within normal limits except for left lateral rotation that was decreased by 20%. There was significant left-sided paraspinal tenderness and to a lesser degree, midline tenderness on palpation. There was only mild right-sided paraspinal tenderness on palpation. There was a significant amount of trapezius spasm on the left side.

Spurling test was negative for obvious radicular symptoms, but reproduced tightness over the anterior scalene muscles of her neck. Scapulohumeral shrug is negative.

Focal neurologic examination of her upper extremity confirmed intact C5 – T1 dermatoma and myotomal distributions in both upper extremities. There was no evidence of myelopathy noted. Deep tendon reflexes were equal and brisk. She has grade 5/5 strength in the entire upper extremity. In fact, on sensory testing, she felt increase in sensitivity in light touch on her left side than her right side. Her shoulder examination was essentially normal with full range of motion and negative impingement signs. There was no evidence of instability. She had grade 5/5 strength in her rotator cuff muscles. On further examination of her periscapular region, she was clinically tender along the left-sided rhomboid region over the medial parascapular border. There was no evidence of scapular winging or scapulothoracic crepitus. There was no obvious tenderness along the midthoracic spine palpation. Examination of her lower extremities revealed no obvious intraarticular knee pathology. She had full range of motion of her knee with no detected effusions. The ligaments were stable. No joint line pain.

[49] As noted in paragraph 39, counsel for the defendants suggested that the trapezius spasm may have been a result of the injuries received at work in August 2007. On his deposition, Dr. Chin said that he found that the muscle spasm was as a result of the motor vehicle accident on July 15, 2005. I accept that conclusion.

[50] The diagnoses given by Dr. Chin was:

1. Chronic left sided shoulder periscapular pain likely related to myofascial pain syndrome; and

2. Midcervical and midthoracic spine pain secondary to whiplash syndrome.

[51] In his deposition, Dr. Chin described myofascial pain syndrome as follows:

Well, it’s an anatomic description of where we think or we feel where the pain is coming from. The muscle structure or the muscle unit is -- the circumferential envelope for it is usually a fascial layer and it’s usually quite a thick band. And myofascial pain syndrome means “myo” meaning muscle, “fascial” meaning thick and enveloping band, I guess, that band gets inflamed, it gets irritated, and it can rub against muscle planes or it can rub against bursal planes and these structures get inflamed which can result in pain.

[52] Dr. Chin concluded that those injuries were as a result of the motor vehicle accident. He considered that her diagnosis was “guarded”. He stated:

I think she has a good chance that she will always have some level of pain or discomfort secondary to her whiplash injury. It is not inconceivable that subsequent minor trauma may re aggravate her symptoms.

[53] Contrary to her report to Dr. Chin, Ms. Levy’s evidence at trial was that the injuries received in the motor vehicle accident were not aggravated by those received at work in August 2007.

[54] Dr. Chin recommended further physiotherapy and intermittent support from other health care practitioners, such as an acupuncturist or massage therapist. He said that if her chronic pain does not resolve that she may be a candidate for referral to a chronic pain specialist. However, on his deposition, he did concede that that is not his area of expertise, that as there is no specific muscle injury or detachment requiring surgical repair, his normal step would be to refer the patient to a physiatrist or chronic pain specialist. However, he did not do that.

[55] On cross-examination, Dr. Chin did not consider it surprising that he found muscle spasms, although there is no indication of them on any of the physical examinations in the clinical records. He said that such spasms are intermittent, so that a person could have a good day or could have a bad day. He confirmed that on the day of his examination, there was a significant amount of tightness within the trapezius region. He agreed that muscle spasms could be caused by things other than injuries in a motor vehicle accident, including prolonged stress, deconditioning of the paraspinal muscles, and extended periods of overhead work. Apart from the possibility that the spasms were caused by the injuries in the August, 2007, work accident, which I find not to be the case, Dr. Chin did not resile from his opinion that the muscle spasms he found were due to the injuries received in the motor vehicle accident. I accept his opinion in that regard.

[56] Ms. Levy then saw Dr. Dommisse, also an orthopaedic surgeon, at the request of counsel for the defendants. Dr. Dommisse was not cross-examined on his reports.

[57] When she saw Dr. Dommisse on December 7, 2007, Ms. Levy complained of neck and left trapezius muscle pain, extending into the mid-spine level. She said the symptoms had been present since the accident, and were aggravated by her work as a painter. She did, however, say that the pain had decreased since the accident, but had not resolved.

[58] On his physical examination of her cervical spine, shoulders and upper extremities, Dr. Dommisse noted tenderness in the midline of the cervical spine from C4 to C7, and also within the paravertaebral muscles of the cervical spine on the right and left side. However, he found no spasm in those muscles. He also noted tenderness at the base of the skull on the right and left sides. He noted limited range of flexion and extension of the cervical spine, fifty degrees, compared to the normal of one hundred and fifty degrees, and that extension movement produced pain. However, rotation and lateral flexion of the cervical spine were normal. The results on the neurological examinations were normal.

[59] Dr. Dommisse’s opinion, as set out in his report of December 14, 2007 was as follows:

(a) There are no objective signs of injury in Ms. Crichton.

(b) In my opinion, Ms. Crichton likely sustained a Grade I strain of the cervical spine as a result of the accident of July 15, 2005.

(c) Ms. Crichton exhibits minimal restriction of flexion and extension movements of her cervical spine. She experiences pain with extension movements. There are no objective findings.

(d) There is no objectively supportable injury as a result of the motor vehicle accident of July 15, 2005.

(e) Ms. Crichton was involved in a previous motor vehicle accident when she was a teenager. She sustained an injury to her right shoulder at that time.

Additionally, Ms. Crichton sustained likely soft tissue injuries to her lower extremities when she fell off a truck in August, 2007. There is no evidence of Reflex Sympathetic Dystrophy at this time.

In my opinion, it is likely that Ms. Crichton would have suffered a degree of neck pain with extension movements as required by her ceiling painting activities at her place of employment for example.

(f) In my opinion, Ms. Crichton is not disabled from work.

It would have been reasonable for Ms. Crichton to be off work for 3-4 weeks following the accident of July 15, 2005.

(g) I do not have any specific recommendations for treatment other than Ms. Crichton should maintain her own active, independent exercise program and, in particular, maintain cardio exercising three times weekly.

In my opinion, Ms. Crichton does not require any passive modalities of treatment or surgery as a result of the accident of July 15, 2005.

In my opinion, it is unlikely that Ms. Crichton would require any future treatment or medication as a result of the accident of July 15, 2005.

The recommended exercise program, as outlined above, is for her general health.

[60] In a supplementary letter, dated February 11, 2008, Dr. Dommisse agreed that his estimate of three to four weeks as a reasonable time for Ms. Levy to be off work following the accident was an estimate for an average patient, and that some patients may require longer periods of time off work, depending on the circumstances. He also agreed that Dr. Mann may have been in a better position to provide an opinion at that time. He said his recommendation was for an early graduated return to work, which he considered to be not only therapeutic, but also beneficial in promoting rehabilitation. He did not agree with Dr. Mann’s recommendation of further massage therapy, stating that “passive modalities of treatment are of no long term benefit”.

[61] Dr. Chin was requested to comment on Dr. Dommisse’s report, which he did in a report dated February 4, 2008. He considered the history of a previous motor vehicle accident to be irrelevant, as it resulted in an injury to her right shoulder, and she did not have complaints of shoulder or neck discomfort before the motor vehicle accident on July 15, 2005. He noted that the injuries sustained in that accident resulted in left shoulder parascapular pain symptoms and neck pain. His opinion thus remains that the motor vehicle accident was the most probable cause of the left parascapular/shoulder myofascial pain syndrome. He agreed that she will not require surgical treatment as a result of it, but felt that if she was not successful in an active exercise program, she might be a candidate for a referral to the chronic pain clinic.

C. Discussion

[62] I conclude that Ms. Levy did sustain a soft tissue injury to the left side of her neck and shoulder as a result of the motor vehicle accident. I accept the opinion of Dr. Dommisse that some people may have been able to return to work in three or four weeks after such an injury. However, with the overhead work, lifting, and extended use of the upper extremities involved in Ms. Levy’s painting work, I accept the opinion of Dr. Mann that it was reasonable for her to remain off work as a painter until the end of October, 2005. I accept his opinion that at that time she was “fully functionally recovered”, in the sense that she was physically able to perform her job duties. However, I accept her evidence that doing the painting caused her considerable pain, as did other activities involving her upper extremities, such as picking up her son. I find that there has been improvement since August, 2005, but that she does have ongoing discomfort. In that regard, I accept the evidence of Dr. Chin that the “significant amount of trapezius spasm on the left side” which he found on his physical examination in November, 2007, was caused primarily by the injuries received in the motor vehicle accident, rather than any other factors, such as stress, deconditioning, or the injuries received at work in August, 2007. I also accept the opinion of Dr. Chin that Ms. Levy will likely have some level of pain and discomfort relating to the injury, although do not consider it to be such that it is likely to significantly disable her from any activities.

[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.

IV. Damages

A. Non-pecuniary Damages

[64] Counsel for Ms. Levy submits that an appropriate award for non-pecuniary damages would be $40,000. He relied upon the following cases:

· Jones v. Davenport, 2008 BCSC 18: $45,000 non-pecuniary damages to the 26 year old plaintiff for injuries incurred in two motor vehicle accidents, the first which resulted in soft-tissue injuries to the back of the neck and upper trapezius muscles, which was aggravated in the second collision. The judge considered the injury to be one of moderate severity, and accepted that the plaintiff continued to experience symptoms from the injuries approximately two and one-half years after the first, and one and one-half years after the second. However, he did not accept that she had made no progress in her recovery in the year before trial. He assessed the risk of her experiencing symptoms from her injuries indefinitely to be at about 25 percent.

· Gilmore v. Machibroda, 2008 BCSC 260: $45,000 non-pecuniary damages to a 28 year old plaintiff for soft-tissue injury to neck and upper and lower back. The judge found the injuries would have resolved after 6 months, with pain and suffering relating to the neck and upper back for 4 years from the date of the accident and pain in the lower back also for 4 years, at which time a pre-existing degenerative back condition would have become symptomatic in any event.

· Jackman v. All Season Labour Supplies Ltd. et al., 2006 BCSC 2053: $40,000 non-pecuniary damages for injuries sustained in a minor collision causing headaches for about 3 weeks, neck stiffness and soreness for 1 to 2 months with flare-ups 3 to 4 times a month continuing until trial. She was unable to do her job, requiring physical work including bending and lifting for approximately 4 months. Even when she returned to work, she still had pain, so that she was not back to her pre-accident working hours until slightly over a year after the accident. At the time of trial, approximately 3 years after the accident, the plaintiff had low back pain 3 to 4 times a month, with a guarded medical prognosis for the pain, although it was consider not severe enough to restrict her employment potential.

· Laroche v. MacPhail, 2007 BCSC 1451: $35,000 non-pecuniary damages to a 38 year old plaintiff who missed 2 days of work after the accident, suffered significant pain in the first month, less but still significant pain in the next 2 months, with continued pain 1 day every 2 weeks, not likely to improve.

· Myers v. Leng, 2006 BCSC 1582: $25,000 non-pecuniary damages as a result of minor collision disabling him from work as a floor installer for about 6 weeks, with stiffness and pain in the right shoulder, chest and neck. By 1 year post-accident, the plaintiff was still feeling pain in those areas, but it was not constant, and he was pain free for 2 to 3 weeks each month. There were no complaints to his doctor between June, 2003 and October, 2005, but the judge did not consider that detracted from his credibility; to the contrary, considered that it was not necessary to see the doctor on a continuous basis if there was no need for continuous medical treatment. (at paragraph 50)

[65] Counsel for the defendant submitted that an appropriate award of non-pecuniary damages would be $7,500. She relied on:

· Starrett v. Smith et al., 2002 BCPC 0383: $7,500 award to 31 year old woman from minor to moderate soft-tissue injuries resulting in her missing time off college, but with symptoms essentially resolved after one year.

· Day v. Viney et al., 2002 BCSC 693: $7,500 for soft-tissue injuries in the area of the neck. The judge rejected the defence position that there was full recovery within 3 months of the accident, concluding that he suffered effects for a period of 12 to 13 months following the accident.

[66] I consider the cases relied upon by the defence to involve plaintiffs who recovered significantly more quickly than has Ms. Levy. I consider the Jackman case most comparable. I thus award non-pecuniary damages of $40,000.

B. Past Loss of Income

[67] The plaintiff claims loss of income under two headings, firstly, the loss of employment income in the amount of $6,697.60 and secondly, loss of employment insurance benefits in the amount of $2,490. The defendants do not dispute the calculations made by counsel for the plaintiff, but submit that she should have been back to work within 3 to 4 weeks, and that her loss of income claim should be calculated on that basis.

[68] The position of the defendants is based on the opinion of Dr. Dommisse, in his report of December 14, 2007, that “it would have been reasonable for Ms. Crichton to be off work for 3 to 4 weeks following the accident July 15, 2005”. However, in a supplementary letter of February 11, 2008, he agreed that was an estimate for an average patient, and that some patients may require longer periods of time off work. He also agreed that Dr. Mann was in a better position to provide an opinion as to that. It was Dr. Mann’s opinion, as set out in his report dated February 21, 2006, that Ms. Levy was not able to work at her employment as a painter until the end of October. I accept that opinion.

[69] As a result of the Notice to Admit dated January 10, 2008, the defendants have admitted that if Ms. Levy had not been injured in a motor vehicle accident on July 15, 2005, she would have accumulated an additional 600 hours working for Home Pro Painting and Decorating between July 15 and October 31, 2005. I accept that she would have been paid at a rate of $10 per hour for 160 hours and $11 per hour for 440 plus 4 percent holiday pay. I thus accept the plaintiff’s claim in the amount of $6,697.60 as her gross wage loss.

[70] The claim with respect to employment insurance benefits is on the basis that, as a result of the accident, Ms. Levy did not accumulate enough hours of insurable earnings to qualify for employment insurance benefits in the winter of 2005 to 2006. She needed 630 hours; she had accumulated only 399 hours. She testified that her practice was to work at painting during the outdoor painting season, then to collect employment insurance benefits over the winter. If she had done that, the defendant admits, as set out in the Notice to Admit, that she would have received 27 weeks of employment insurance benefits at a rate of $166 per week, amounting to $4,482.

[71] On behalf of the defendants, it is submitted that the fact that Ms. Levy could not collect employment insurance benefits should not be a burden on the defendants. It also submits that employment insurance benefits are meant to replace income for people fit to work, not ones who chose to take the winter off and collect benefits. However, the general principle to be applied in awarding damages is to attempt to place an injured person in as close a position as is possible to that she would have been in had she not been injured. In this case, I accept that if Ms. Levy had not been injured, she would have worked as a painter until the end of October, and then collected employment insurance benefits, subject to any job she might be able to obtain during the winter period. In fact, the evidence is that she did have some work over that period, including one week interior painting, and three weeks working for Elections Canada. It is conceded that she would not have been entitled to receive employment insurance benefits during those four weeks. The claim is thus for 15 weeks of benefits at $166 per week, totalling $2,490.

[72] A similar award was made in Thomas v. Jackson, unreported, June 16, 2000, Supreme Court of British Columbia, Nanaimo Registry No. S21836. That case involved a seasonal fish plant worker, who generally worked from June to October of each year, then obtained employment insurance benefits if she had sufficient hours accumulated. The claim for lost employment insurance benefits was allowed.

[73] I thus award the sum of $9,187.60 for past wage loss, made up of loss of earnings of $6,697.60 and loss of employment insurance benefits of $2,490.

[74] I also accept the submissions on behalf of counsel for Ms. Levy that, with the amount of her income, no tax would be payable, and there should be no deduction from her gross income loss pursuant to s.98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c.231 to determine the net income loss. The award for past loss of wages will thus be in the amount of $9,187.60.

C. Loss of Future Earning Capacity

[75] Counsel for the plaintiff submits that, as a result of the restrictions on Ms. Levy’s ability to do heavier over-head work, an award for loss of future earning capacity of $20,000 is appropriate. He noted that there is no principle of law that medical evidence is necessary to establish an impairment of earning capacity, that the question is whether on the whole of the evidence the trial judge can make a finding of impairment: Miscisco v. Small, 2001 BCCA 576. He also relies on Jones v. Davenport, supra, Laroche v. MacPhail, supra, and Myers v. Lange, supra, in which awards for loss of future earning capacity were made in the amount of $30,000, $16,000, and $10,000.

[76] Counsel for the defendant submits that there is no basis for such an award. She submits there is no medical evidence of incapacity, that, to the contrary, the opinion of Dr. Mann is that Ms. Levy was fully functional by the end of October, 2005. She notes that in 2007, Ms. Levy worked from 50 to 60 hours in some weeks.

[77] Huddart J.A. provided a useful review of the principles relating to an award for loss of earning capacity in Rosvold v. Dunlop, [2001] B.C.J. No.4 (C.A.) at paragraph 8 to 11:

[8] The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

[9] Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

[10] The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No.2128 (S.C.) (Q.L.) at para.121, aff’d [1997] B.C.J. No.2178 (C.A.) (Q.L.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

2. whether the plaintiff is less marketable or attractive as an employee to potential employers;

3. whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[11] The task of the court is to assess damages, not to calculate them according to some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No.644 (C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[78] In paragraph 12, Huddart J.A. noted that, even if a plaintiff is able to earn the same amount of income from alternative employment, he would still be entitled to compensation for loss if occupations previously available were closed to him, referring to Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (C.A.).

[79] In Pallos v. I.C.B.C. (1995), 100 B.C.L.R. (2d) 260 (C.A.), Finch J.A. also considered the issue of whether the plaintiff must prove that the future loss is “a real possibility”, and that there is “a reasonable chance” such loss will occur, the test in Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.), leave to appeal to S.C.C. refused: (1991), 51 B.C.L.R. (2d) xxxv. At paragraph 29 he stated:

In my respectful view, a consideration of this issue should not have been limited to the test established in Steenblok v. Funk (supra). The plaintiff’s claim in this case, properly considered, is that he has a permanent injury, and permanent pain, which limit him in his capacity to perform certain activities and which, therefore, impair his income earning capacity. The loss of capacity has been suffered even though he is still employed by his pre-accident employer, and may continue to be so employed indefinitely.

[80] In this case, I find that Ms. Levy has established a claim for loss of future earning capacity, considering the criterion set out by Finch J. in Brown v. Golaiy, supra. I accept that there is no evidence of any ongoing functional disability. Even on the evidence of Dr. Chin, Ms. Levy’s ongoing problems relate to chronic pain, rather than any disability. If she remains in her present position, or is able to obtain employment such as that she had teaching the painting trade for Corrections Canada, it may well be that she will sustain no loss of income. However, if she does have to return to an entry level painting job, or other employment requiring heavy physical labour, it is more than a mere possibility that such disability may cause a flare up of the pain, resulting in loss of hours of work. If disclosed to another employer, that ongoing pain may also make her less attractive to potential employers. She is still relatively young; she has a lengthy working life expectance.

[81] In those circumstances, I award $10,000 for loss of future earning capacity.

D. Cost of Future Care

[82] Dr. Chin has given the opinion that Ms. Levy would benefit from intermittent support from one or more forms of therapy in the long run. Dr. Demmisse disagrees with that, considering that there is no long-term benefit. Ms. Levy herself feels that massage therapy would assist her. Dr. Chin also indicated that Ms. Levy may need the services of a chronic pain specialist, although did not refer her to one.

[83] A plaintiff is entitled to an award for costs of future care, based on what is reasonably necessary on the medical evidence to promote her mental and physical health: Milina v. Bartsch, [1985] B.C.J. No.2762 (S.C.) at paragraph 172.

[84] In this case, in light of Dr. Chin’s findings of muscle spasms in November, 2007, I accept that further massage therapy may promote Ms. Levy’s health. I thus award $1,000 for costs of future care.

E. Special Damages

[85] Special damages have been agreed in the amount of $586.43 and there will thus be an award accordingly.

V. Summary

[86] In summary, I find that a collision did take place between the vehicle driven by Ms. Levy and that driven by Mr. McNaughton on July 15, 2005. I find that Mr. McNaughton was wholly at fault for that collision for which he and Mr. Audin are jointly and severally liable.

[87] I assess damages to Ms. Levy as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.

[88] Unless there are Offers to Settle of which I am unaware, the plaintiff will be entitled to her costs of this proceeding on Scale B, subject to the limitation in Rule 66(29)(b).

_______________________________

A.F. Wilson, J.

Citation:	*Crichton v. McNaughton,*
	2008 BCSC 556