2008 BCSC 833 Rogers (Guardian ad Litem of) v. Liebermann

Before: The Honourable Mr. Justice Savage

Reasons for Judgment

Counsel for the Plaintiffs:	J.D. Vilvang, Q.C
Counsel for the Defendants:	F.R. Mullally
Date and Place of Trial:	June 16, 18, 2008
	Vancouver, B.C.

Introduction:

[1] Emily Nicole Rogers, an infant, by her guardian ad litem Ronald Willard Rogers, her father, brings an action for damages arising out of injuries suffered in a motor vehicle accident August 4, 2002. Liability is admitted.

Background:

[2] Emily Rogers was born October 9, 1998 with a large omphalocele, which is a condition in which the abdominal organs protrude through a hole at the umbilicus. This condition was corrected operatively although not without some complications.

[3] At the time of the motor vehicle accident she was in a proper infant car seat in the rear seat of the family van which was struck broadside the defendant who had failed to stop at a stop sign.

[4] The injuries the plaintiff suffered at the time of the accident which are relatively uncontroversial are a broken tooth, some injury to her legs which healed completely within months, and soft tissue injuries to her neck and back, which were resolved in approximately one year.

[5] The injury that is a matter of major contention are headaches which continue to this day. The causation of the headaches is a matter in issue.

[6] There is also a major difference between the parties concerning the severity of the headaches, if this is a compensable injury.

Causation:

[7] The defendant takes issue with the whether the motor vehicle accident is the cause of the plaintiff’s headaches. The defendant says that there are multiple other potential causative factors including migraine, a fall the plaintiff suffered at “Go Bananas”, etc.

[8] The defendant also cross-examined the plaintiff’s parents regarding the first reporting of the headache symptoms. The early clinical records and medical reports do not mention headaches, e.g., neither the emergency room record nor the Dr. Ward’s report of August 22, 2002 refer to headaches and Dr. Ward’s report specifically mentions “no headaches”.

[9] With respect to the emergency room record, Dr. Hanson noted that post trauma headaches may not occur for some period of time. Dr. Ward’s report is dated August 22, 2002, but refers to events that took place much earlier, August 8, 2002.

[10] It is not in evidence when the report was dictated, and it is unsigned and contains the notation “dictated but not read unless signed”. It also wrongly states that there was “no bleeding”, but everyone acknowledges that the plaintiff bled from an injury to her mouth and eventually lost a tooth.

[11] There is an extremely brief note of August 20, 2002, done by a locum, which makes no reference to the headaches but that is followed up on September 12th with a note “Persisting H/A since MVA…”.

[12] Dr. Hanson, the only witness who tendered a medical opinion on the cause of the plaintiff’s headaches also acknowledged in cross-examination that there are other potential causes of such headaches. Notwithstanding that acknowledgement he remained of the opinion contained in his report that “…on a balance of probabilities (i.e. 51% or more chance) Emily’s headaches are directly attributable to the MVA of August 4, 2002”.

[13] The defendant suggests that Dr. Hanson applied the logical fallacy post hoc ergo propter hoc in his analysis. While a gloss on his report might first suggest this, Dr. Hanson reviews, discusses, and rejects competing etiologies; for example, he rejects as factors her prior medical conditions, psychosocial pressures, and psycho-emotional factors. He rejected migraine as a possible cause because of the decreasing frequency of the headaches.

[14] As noted by the defendant, the Supreme Court of Canada has recently reiterated its support for the “but for” test in determining causation in Resurfice Corp. v. Hanson [2007] S.C.J. No. 7, 2007 SCC 7 at para. 18-23, following Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14, Snell v. Farrell [1990] 2 S.C.R. 311, and Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 78.

[15] I was impressed with the evidence of Dr. Hanson who gave his evidence objectively and seemed to resist the temptation to be an advocate for his patient. Although counsel for the defendant skilfully pointed out some weakness in the plaintiff’s hypothesis, on balance I accept the evidence of Dr. Hanson and find that the headaches were caused by the motor vehicles accident, i.e., but for the accident, the headaches would not have occurred.

Special Damages:

[16] The parties agree on special damages of $160.

Non-Pecuniary Damages:

[17] In their submissions on damages counsel for the plaintiff and defendant proceed on different assumptions.

[18] For example, the plaintiff cites Leo v. Leo 2005 BCSC 1300 where the Court accepted the opinion of one physician that the complaints “will be permanent” (para. 32, 33). Likewise, in Jones v. Davenport/Kretschmer 2008 BCSC 18, the court made an award taking into account the real and substantial possibility that the plaintiff will continue to experience symptoms indefinitely. In Gorosh v. Bowen 2005 BCSC 917, the court found, in awarding $40,000 that the injuries were “permanent”, i.e., “her injuries are unlikely to ever completely resolve” (paras. 118-119).

[19] The defendant, on the other hand, cites a series of cases where the compensated non-pecuniary damages were based on resolved symptoms, such as Borden v. (Litigation Guardian of) Andrews [2008] B.C.J. No. 6, 2008 BCSC 2, where $15,000 was awarded, Mohammed v. Frey [2006] B.C.J. No. 317, 2006 BCSC 205, where a total of $11,000 was awarded for two accidents where symptoms had resolved. In Griffins v. Hawkins [2006] B.C.J. No. 120, 2006 BCPC 20 injuries which were unresolved 3 years post-accident were compensated with an award of $15,000.

[20] In my view, each of these cases turns on its own facts. In this case we have very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.

[21] Regarding permanency, the neurologist, Dr. Woolfenden “says he “does not see this as an issue at all” (report April 17, 2007) and Dr. Hanson does not contradict this opinion. That said, the symptoms have persisted for some six years, and for more than a year after Dr. Woolfenden’s report, although they are improving.

[22] In these circumstances, in my opinion, an award between that proposed by the parties is appropriate which I set at $35,000.

Award:

[23] The award, then, is:

(a)	Non-pecuniary damages	$35,000
(b)	Special Damages	$ 160
	TOTAL:	$35,160

Costs:

[24] The plaintiff is entitled to costs at Scale B unless there has been an offer to settle in which case counsel may make written submissions on costs.

“The Honourable Mr. Justice Savage”

Citation:	*(Guardian ad litem of) Rogers v. Liebermann,*
	2008 BCSC 833