2008 BCSC 997 Shearsmith v. Houdek

Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

Counsel for the Plaintiff	D. Todd Brown
Counsel for the Defendants	Christopher B. Doll Robert J. Merlo
Date and Place of Trial:	June 9-12, 16-20 and July 10-11, 2008
	Vancouver, B.C.

I. NATURE OF THE TRIAL

[1] This is an action for personal injury damages resulting from a “chain rear end” car crash involving a van and two cars in which the plaintiff’s car was the lead vehicle. The accident occurred in the morning of Monday, May 3, 2004 on Highway 101 in Gibsons, British Columbia.

[2] The plaintiff was taking her friend to her first day of work. The traffic was heavy at the time. She had almost arrived at her destination and had her foot on the brake when she heard a loud braking sound. Her vehicle was struck from behind by a van driven by one of the defendants, who was wearing his three point lap/shoulder seatbelt. The plaintiff’s car was written off and there was severe damage to the van.

[3] The plaintiff complained of neck and back pain immediately following the accident. She was taken by ambulance to St. Mary’s Hospital where a cervical and lumbar x-ray was taken. The plaintiff later underwent a lumbosacral x-ray on February 24, 2005 and an MRI of the thoracic lumbar spine on April 24, 2007.

II. LIABILITY

[4] The defendants have admitted liability.

III. ISSUES

[5] The issues are:

(a) Did the plaintiff sustain an injury as a result of the motor vehicle accident? If so, what compensation is appropriate?

(b) Did the plaintiff lose income as a consequence of the injuries allegedly sustained in the motor vehicle accident?

(c) Has the plaintiff’s capacity to earn income been diminished as a result of injuries sustained in the motor vehicle accident? If so, what loss has she sustained?

(d) What out of pocket expenses, if any, did the plaintiff incur as a result of the motor vehicle accident?

(e) To what extent, if at all, will the plaintiff incur expenses in the future as a result of any injuries suffered in the motor vehicle accident?

[6] For the reasons stated below, I dismiss the plaintiff’s claims for past wage loss and cost of future care. I order that the plaintiff is entitled to:

(a) Non-pecuniary damages in the sum of $60,000;

(b) Damages for loss of earning capacity in the sum of $20,000;

(d) Costs.

[7] The plaintiff’s credibility is one of the main issues, but I have found that despite the questions surrounding her credibility, some of her evidence is corroborated by the evidence of several of the experts who were called to testify in this trial. However, it is also necessary for me to assess the credibility of the experts, and I will first canvass the law relating to the weight to be afforded to expert testimony.

IV. WEIGHT TO BE AFFORDED TO EXPERT EVIDENCE

[8] In R. v. Klassen, 2003 MBQB 253, 179 Man.R. (2d) 115, Scurfield J. discussed the weight to be afforded to expert evidence when dealing with the impartiality of expert witnesses in the context of a police officer whose experience as a drug investigator was held to qualify him to give evidence on the indicia of trafficking and grow operations. He wrote at para. 28 that:

In civil cases, some courts have held that for expert evidence to be admissible, the expert must be neutral and objective. See Bank of Montreal v. Citak, [2001] O.J. No. 1096 (S.C.J.); Toronto Dominion Bank v. E. Goldberger Holdings Ltd. (1999), 43 C.P.C. (4^th) 275 (Ont. S.C.J.); Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada, 2^nd ed. (Toronto: Butterworths, 1999) at 624. All courts have held that a lack of objectivity, neutrality and independence has a significant impact on the weight to be afforded that expert. In my view, based on the principles established by R. v. Mohan, this is the preferred approach.

[Emphasis added]

[9] I will now review the evidence put forward by the experts.

i. The Evidence of Dr. Michael Piper

[10] In his report dated July 24, 2006, Dr. Piper stated the following about the condition of the plaintiff at page 5:

On the basis of my examinations of this lady I have come to the following conclusions. As a result of the motor vehicle accident in which she was involved in May of 2004, she may have had a mild cervical sprain, which, by her own history and on the basis of examination, has resolved. She may have had mild soft tissue injury to the lumbar region. I was unable to find any clinical evidence of any significant abnormality on examination of this lady. I do not believe, at the present time that she is significantly disabled, and the fact that she is able to return to her duties as a cleaner of homes, would indicate that she is not significantly limited. I do not believe that she will have any permanent disability as a result of this accident.

[11] Dr. Piper guessed that he has completed approximately 80 expert medical legal reports for ICBC last year. He guessed that he must have done between five to ten percent of these reports for the plaintiff during that period. Under cross-examination, it was obvious to me that he had not spent as much time, nor was he as objective, in his assessment of the plaintiff as either Dr. Shuckett or Dr. McKenzie. Dr. Piper impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefore attach little weight to his evidence.

ii. The Evidence of Dr. Rhonda Shuckett

[12] In her written report dated December 27, 2005, Dr. Shuckett wrote at page 6:

It is in keeping that the MVA is the cause of her ongoing low back symptoms. I think it probable that the low back pain is musculoligamentous in origin, particularly with involvement of the ligaments. The difficulty in sitting or standing for any prolonged interval is very typical for ligamentous pain in the low back. Patients with ligamentous or enthesopathic pain (enthesis = the site where ligaments or tendons attach into bone), often have trouble maintaining a body position for prolonged periods. I am of the opinion that the ligamentous pain is affecting the lumbar spine as well as the left sacroiliac ligament regions of the low back/hip girdle region.

…

PROGNOSIS:

Her neck pain has significantly improved. Her low back/ sacroiliac (SI) region pain is ongoing at this point in time over 2 ½ years after the MVA. The ongoing nature of her low back pain at this chronic an interval does bode poorly for the prognosis. It is likely that the low back/SI pain will continue to be a chronic, long term problem. It is not surprising that she is having difficulty carrying out her job as a housecleaner. Any job with prolonged standing or sitting or lifting or bending is likely to be challenging for her. I think she may require some social assistance in the longer term.

[13] I also had the opportunity to see Dr. Shuckett under cross-examination, and I found her to be very forthright in her testimony. More importantly, she seemed to be objective and fair, and I accept her evidence.

iii. The Evidence of Dr. G.M. McKenzie

[14] Dr. McKenzie is a consultant orthopaedic surgeon, and his curriculum vitae was filed with the court. Unlike Dr. Piper, I found Dr. McKenzie to be a very forthright witness and not an advocate for the plaintiff. An example of his objectivity can be seen in his written report, where he opines that the plaintiff was overreacting at one point while he examined her. At pages 7-8, he states:

Thoracolumbar spine shows flexion with fingertips to the ankle joint. Extension and side bending and rotation were all full. She has discomfort in the lower back area with flexion and with left rotation. She was exquisitely tender over the midline at approximately the L1/L2 level. She is tender to the point where she wouldn’t even let me touch her there. I would consider this to be a positive Waddell’s sign in the “overreaction” category. That of course is a purely subjective assessment. The remainder of the Waddell’s nonorganic signs were negative so overall I would say that her Waddell’s nonorganic test is negative as you need 3 positive signs to make a positive test.

[Emphasis added]

…

ASSESSMENT/OPINION:

This lady had some minor muscle aches and pains in the trapezius muscle areas and the lower part of her low back prior to being involved in a motor vehicle accident. In my opinion those previous problems are unrelated to the current problems that she is having. In my opinion the motor vehicle accident likely caused a fracture at T12 and a disc injury to T11/T12 and perhaps T9/T10. In my opinion she has now gone on to develop a chronic pain syndrome. She has diffuse myofascial discomfort from the area of her fracture all the way down to the lower lumbar area. She had a significant sleep disturbance. She has a significant component of depression and deconditioning.

[15] Of all the experts who were called to testify, I found Dr. McKenzie to be the most objective. The portion of his written report that I have emphasized is an indication of the fact that he tested the plaintiff to see if she was exaggerating her symptoms. Although he was retained by the plaintiff, he had no difficulty pointing out what he considered to be pain exaggerated by the plaintiff. I accept Dr. McKenzie’s testimony in total.

[16] I find that the evidence of Dr. Shuckett and Dr. McKenzie corroborates, in part, some of the plaintiff’s evidence which I will review below.

V. FINDINGS OF FACT

i. The Plaintiff’s Background

[17] The plaintiff was two months from her 43rd birthday at the time of the accident. She was a single mother living in a rented house in Gibsons with three sons aged 18, 14 and 3. Her oldest son was born with a very rare genetic disease. She worked part-time as a cleaner and received provincial employment and income assistance benefits.

ii. Credibility of the Plaintiff

[18] The credibility of the plaintiff is one of the main issues in this case. For years the plaintiff has deliberately understated her income on her income tax return in order to collect income assistance.

[19] When confronted with this, she stated that she is not proud of what she has done, but she needed the extra income to cover the cost of expensive drugs for her oldest son. The plaintiff does not believe in traditional medicine, and has had to pay large amounts of money to naturopaths for her son’s care.

[20] Counsel for the defendants has drawn my attention to discrepancies between the plaintiff’s testimony and the background information that she gave to the experts that were called to give evidence. The defendants also rely on video surveillance of the plaintiff which was conducted for four days in May of this year. Counsel for the defendants submits that the plaintiff is not a credible witness and that I should reject her testimony in its entirety.

[21] When dealing with the issue of credibility in these types of trials, there is a comparison between the testimony of the plaintiff at trial and the history given to the experts upon their examinations prior to trial. In my view, this sort of comparison becomes valid only when the experts use a reliable method of recording what the plaintiff said when he or she gave his or her history. Without a reliable recording of what was in fact said by the plaintiff in the interview, it is difficult, if not impossible, to tell if the testimony and the accounts given to the experts were indeed different.

[22] In this case, however, there are sufficient concerns about the credibility of the plaintiff that I must be cautious about how to treat the plaintiff’s testimony. I am satisfied that there is adequate corroborating evidence of the plaintiff’s testimony to establish that she did suffer injuries as a direct result of the accident, that she has suffered pain, and is still suffering pain as a direct result of the accident.

iii. Injuries Suffered by the Plaintiff as a Result of the Accident

[23] The plaintiff testified that as a direct result of the accident she has suffered and continues to suffer from severe pain in her lower back. As stated previously, I have serious concerns about her credibility, but I nevertheless find that part of her testimony regarding the pain she has been suffering has been corroborated by the testimony of Dr. Shuckett and Dr. McKenzie, whose evidence I accept. I find as a fact that the plaintiff has developed chronic pain syndrome as a direct result of the accident.

iv. The Effect of the Injuries on the Plaintiff’s Employment

[24] From the evidence before me, it appears that the plaintiff is now working more than she did prior to the accident, notwithstanding her chronic pain. In my view, the plaintiff has not established on a balance of probabilities a causal relationship between the injuries suffered in the accident and an adverse effect on her employment.

VI. DAMAGES

i. Non-pecuniary Damages

[25] There is nothing to suggest that the plaintiff has not done her best to achieve her pre-accident situation. Counsel for the defendants submits that the plaintiff did not obtain a bone scan as suggested by Dr. Piper. They say that she did not take certain medications suggested by her medical practitioners and instead preferred to use naturopathic medicine, acupuncture, and chiropractic treatments.

[26] I accept the evidence of Dr. McKenzie that he does not see how a bone scan would have helped to alleviate the plaintiff’s pain. I also accept his evidence that the medication ordered by other practitioners, such as Ibuprofen and Naproxen, would have only resulted in short term relief from the plaintiff’s pain.

[27] I find as a fact that before the accident the plaintiff enjoyed dancing, gardening, and cycling, and that as a direct result of the accident she is unable to take part in these activities to the extent that she did prior to the accident.

[28] Locating case authority specifically on point with the case at hand is difficult, if not impossible. Each case must be decided upon its facts. In dealing with non-pecuniary damages, I am mindful of the principle enunciated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, that a plaintiff is not to be put in a position better than his or her original position.

[29] Counsel for the plaintiff submits that the plaintiff should be awarded non-pecuniary damages in the minimum range of $100,000. In support of his submission, counsel for the plaintiff drew my attention to the following cases: Cash v. Wong, [1996] B.C.J. No. 1311 (S.C.) (QL); Jones v. Trudel, [1998] B.C.J. No. 1748 (S.C.) (QL); Brownlee v. Danyluk (1996), 26 B.C.L.R. (3d) 64, 78 B.C.A.C. 267; Majer v. Beaudry, 2002 BCSC 746, [2002] B.C.J. No. 1053 (QL); Brisco v. Brisco, 2002 BCSC 293, [2002] B.C.J. No. 476 (QL); Zahynacz v. Kozak, [1998] B.C.J. No. 1947 (S.C.) (QL); Switzer v. Buchi, [1998] B.C.J. No. 1904 (S.C.) (QL); Liu v. Hansen, [1996] B.C.J. No. 591 (S.C.) (QL); Schellak v. Barr, 2003 BCCA 5, [2003] B.C.J. No. 5 (QL); Prince-Wright v. Copeman, 2005 BCSC 1306, [2005] B.C.J. No. 1997 (QL); and Fox v. Danis, 2005 BCSC 102, [2005] B.C.J. No. 137 (QL).

[30] Counsel for the defendants submits that the plaintiff should be awarded $3,500 to $4,000 under this head of damages. In support of his submission, he referred me to the following cases: Sawchuk v. Roeder, [1997] B.C.J. No. 2666 (S.C.) (QL); Hamilton v. Luk, [1999] B.C.J. No. 602 (S.C.) (QL); Stenersen v. Grueter, [1998] B.C.J. No. 3115 (S.C.) (QL); Rota v. Ross, 2002 BCSC 1761, [2002] B.C.J. No. 2872 (QL); Remenik v. Marchand, 2003 BCSC 145, [2003] B.C.J. No. 172 (QL); McCaffrey v. Beaulieu, 2000 BCSC 13, [2000] B.C.J. No. 43 (QL); Barsanti v. Kwok, [1995] B.C.J. No. 1691 (S.C.) (QL); Da Assuncao v. Roy, [1991] B.C.J. No. 24 (S.C.) (QL); Thomson v. Brunt, [1996] B.C.J. No. 1859 (S.C.) (QL); Bartel v. Reid, 2004 BCSC 831, [2004] B.C.J. No. 1244 (QL); Lane v. Ford Credit Canada Leasing Ltd., 2003 BCSC 701, [2003] B.C.J. No. 1042 (QL); Hadland v. Thompson, 2002 BCSC 380, [2002] B.C.J. No. 540 (QL); and Lowen v. Kovacevic, 2005 BCSC 1520, [2005] B.C.J. No. 2380 (QL).

[31] I have reviewed these cases in order to get acquainted with the general principles for awarding non-pecuniary damages. After applying the facts in this case to the principles enunciated in the cases presented to me, I award the plaintiff non-pecuniary damages in the amount of $60,000.

ii. Past Wage Loss

[32] In Schellak, at para. 47, the Court of Appeal made it clear that the court cannot base an assessment of past wage loss on the “real possibility” of income being at a certain level. The plaintiff must prove his or her past wage loss on a balance of probabilities.

[33] I find that because the plaintiff did not accurately state her income prior to the accident, it is difficult, if not impossible to find that the plaintiff has proved this head of damages on a balance of probabilities.

iii. Loss of Earning Capacity

[34] When considering future earning capacity, the court can consider “real possibilities” that have been established by the plaintiff, supported by medical evidence. While there is an element of gazing into a crystal ball, it must be in reference to the considerations set out by the court in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, [1985] B.C.J. No. 31 (S.C.) (QL) and Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310.

[35] A helpful summary of the law under this head of damages can be found in the decision of the British Columbia Court of Appeal in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158, where Huddart J.A. states at paras. 8-11:

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 (S.C.C.); Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (B.C.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.

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 (S.C.C.). 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.

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.) (QL) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (QL)]. 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) 393 (B.C.C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (B.C.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.

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 (B.C.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.) (QL)]; Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[36] Accordingly, this Court can proceed with a comparison between the plaintiff’s likely future if the accident had not occurred and the plaintiff’s likely future after the accident occurred. Under this approach, which was described in Cash at para. 52 as the “real possibility approach”, the plaintiff must lead evidence that there is a likelihood of some future event leading to a loss of income.

[37] In my view, the plaintiff has not established an impairment in her earning capacity as a capital asset. She is now working at her job as a cleaner more than before the accident and is able to do her job, although with some difficulty.

[38] From the evidence which I accept, the plaintiff has established on a balance of probabilities that as a direct result of the accident there are potential limits on her pre-accident choice of recreational and employment options. There are certainly some activities that will not be as easily tolerated due to her chronic pain.

[39] Defence counsel submits that I should order the sum of $5,000 under this head of damages in accordance with the principles set out in Hicks v. GMAC Leasco Ltd., 2001 BCSC 1091, [2001] B.C.J. No. 547 (QL).

[40] After considering the medical evidence, the fact that the plaintiff has continued to do her job as a cleaner since the accident, and the factors set out in Brown, I am of the view that any claim for loss of future earnings should be modest. Although, in view of the residual injuries of the plaintiff, I do not agree that the award should be as modest as the award in Hicks. I award the plaintiff the sum of $20,000.

iv. Special Damages

[41] On the evidence before me, I am satisfied that the plaintiff is entitled to special damages in the sum of $1,694.

VII. CONCLUSION

[42] The plaintiff is awarded non-pecuniary damages of $60,000, damages for loss of earning capacity of $20,000, and special damages of $1,694. The plaintiff’s claims for past wage loss and cost of future care are dismissed. The plaintiff is entitled to her costs.

“Romilly J.”

Citation:	*Shearsmith v. Houdek,*
	2008 BCSC 997