2008 BCSC 1454 Grant v. Gonella

Before: The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Plaintiff:	L.M. Cohen
Counsel for the Defendants:	D.B. Henry
Date and Place of Trial:	September 22-26, 2008
	Vancouver, B.C.

[1] Lynda Grant is seeking damages for injuries she suffered in a motor vehicle accident that occurred on January 4, 2006. The defendants admit that the accident was the fault of the defendant, Ellen Gonella. At issue are the nature, extent and duration of the injuries suffered by Ms. Grant in the accident.

[2] Ms. Grant was unable to work at her job as a resident care aide at an extended care home for a few months following the accident. Although Ms. Grant has returned to work, she complains that ongoing pain interferes with her work and her enjoyment of life. Ms. Grant alleges that as a result of her ongoing symptoms she had to take another month off work in September 2007. The defendants take the position that Ms. Grant’s ongoing symptoms are not due to the injuries suffered in the motor vehicle accident, but are the consequence of degenerative changes in her spine which predate the accident and which would have become symptomatic regardless of the accident.

BACKGROUND

[3] Ms. Grant is 52 years old and was born in Jamaica. She immigrated to Canada in 1976. After coming to Canada she furthered her education, obtaining her grade 10 and a nurse’s aide course. Since 1981 she has worked as a resident care aide on an extended care unit at St. Vincent’s Langara Hospital.

[4] At the time of the accident, Ms. Grant lived with two of her three children: her son, Tristan, born in 1987 and her daughter, Ginelle, born in 1994. Her son, Adrian, was born in 1976 and lives in Toronto.

[5] The accident occurred at approximately 3:00 p.m. when the vehicle driven by Ms. Grant was struck by the defendants’ vehicle. The defendant, Ms. Gonella, was driving the vehicle at the time and attempted to merge into Ms. Grant’s lane. She did not see Ms. Grant’s vehicle, and struck the driver’s door of Ms. Grant’s car as she changed lanes.

[6] At the scene, Ms. Grant complained of pain in her left hip. Her evidence is that she had trouble getting out of the car but that she was able to drive home.

[7] The day after the motor vehicle accident, Ms. Grant went to see her family doctor, Dr. Abrahams, with complaints of pain in her left hip and buttock. Following the accident, Ms. Grant was off work until late March when she started a graduated return to work. When Dr. Abrahams saw her on May 4, 2006, Ms. Grant was back at work full time. She reported that she had improved, but she still had pain in her left hip and buttock. In April 2007, Dr. Abrahams ordered an MRI of her hip which disclosed a possible subtle tear in the cartilage or anterior labrum of the hip.

[8] In September 2007, Ms. Grant had an episode of numbness and tingling in the left leg which lasted for about two weeks. She ended up taking time off work from September 4 to October 29, 2007, due to the pain in her left hip and buttock. She returned to work in November and has been working full time ever since.

[9] An x-ray performed on September 7, 2007, shows a narrowing of the anterior part of Ms. Grant’s lumbar spine in the L4-5 area. An MRI in January 2008 showed a mild degenerative change in the lumbar spine that was most severe in the L4-5 area, and a broad disc bulge and some compression of the L5 nerve root.

[10] The defendants acknowledge that Ms. Grant was injured in the motor vehicle accident. However, they say that she had recovered from the injury by the end of October 2006, and that her current complaints are due to her pre-existing degenerative disease and would have occurred regardless of the accident.

ANALYSIS

Causation

[11] All of the doctors agree that Ms. Grant has a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain in the area of her left hip and buttock. The occasional radiation of pain down Ms. Grant’s left leg results from the irritation of a nerve in the area of the disc bulge. For the following reasons, I am satisfied that but for the accident, Ms. Grant would not have suffered the injury and her ongoing pain.

[12] In order to establish causation Ms. Grant must prove on a balance of probabilities that but for the accident she would not have suffered the injury: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333. The plaintiff is not required to establish that the defendant’s negligence was the sole cause of the injury. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is liable even if there are other causal factors, for which the defendant is not responsible, that result in the victim’s losses being more severe than they would be for the average person. At the same time, the tortfeasor need not put the victim in a better position than he or she would have been in, and need not compensate the victim for the effects of a pre-existing condition that the victim would have experienced in any event: Snell v. Farrell, [1990] 2 S.C.R. 311; Athey v. Leonati, [1996] 3 S.C.R. 458.

[13] Dr. Abrahams testified that Ms. Grant has consistently complained of pain in her left hip and buttock from the time of the accident to present. She has also complained of pain and numbness in her left leg from time to time.

[14] Dr. Gilbart, an orthopaedic surgeon, diagnosed Ms. Grant with a soft tissue injury to her left hip and posterior buttock area, a musculoar ligamentous strain to her lumbar spine, with left sided radicular pain, a small anterior left hip labral tear, and degenerative changes and disc herniations in her lumbar spine. In his view, Ms. Grant suffered a soft tissue injury in the area of her left lower back, buttock and hip area. As well, it is Dr. Gilbart’s opinion the accident either caused the disc herniation and the labral tear or significantly aggravated a pre-existing herniation and labral tear, thereby making them symptomatic.

[15] Although Dr. Gilbart could not say for certain whether the herniation or the labral tear pre-existed the accident, he noted that the degenerative disease in Ms. Grant’s lumbar spine is mild. It is Dr. Gilbart’s opinion that the accident could have accelerated the degenerative changes in Ms. Grant’s spine. In his view, Ms. Grant’s ongoing complaints result from a combination of a soft tissue injury, irritation to the nerves in the area of the disc herniation, and the labral tear in her hip. Dr. Gilbart’s opinion is that Ms. Grant has a mild permanent disability as a result of the injuries sustained in the motor vehicle accident. He expects that she will have intermittent pain in the future, and that her pain will be exacerbated with increased physical activity and lifting.

[16] Dr. Sahjpaul, a neurosurgeon, formed the opinion that the pain in Ms. Grant’s hip and buttock area is due in part to a nerve root compression or irritation in the L4‑5 area. He bases his opinion on his examination of Ms. Grant and the medical records, including the x-ray and MRI images. Dr. Sahjpaul testified that although disc herniations and annular tears can occur on a degenerative basis, they can also be caused by traumas such as a motor vehicle accident. Given that Ms. Grant was asymptomatic prior to accident and that the x-ray of her lumbar spine showed very little degenerative change, it is Dr. Sahjpaul’s opinion that it is likely that the herniation and the labral tear were caused or made symptomatic by the accident. Dr. Sahjpaul testified that one of the hallmarks of disc problems is that they wax and wane, and that patients will have periods of improvement and periods when their symptoms are more severe.

[17] Dr. Hawk, an orthopaedic surgeon, conducted an independent medical examination of Ms. Grant. In his opinion, Ms. Grant suffered a soft tissue injury as a result of a contusion to her left hip and a lateral strain of her lumbar spine in the accident. Dr. Hawk is of the view that Ms. Grant is not physically impaired at this time. His opinion is that Ms. Grant’s recurrent episodes of pain in her hip and radiating into her leg are secondary to a nerve root impingement in her lumbar spine caused by her degenerative lumbar spine disease and not by the accident.

[18] Dr. Hawk’s opinion that the accident caused only a soft tissue injury to her left hip area seems to be based in large part on the fact that he assumed that Ms. Grant’s pain immediately after the accident was isolated to the outside or lateral aspect of her left hip and that she did not report any buttock pain at that time.

[19] It is apparent from the evidence that, contrary to Dr. Hawk’s assumption, Ms. Grant has reported buttock pain from the time of the accident. On January 18, 2006, she reported to her physiotherapist that she was very sore in her left buttock and was experiencing radiating pain into her hip and groin as well as her quadricep muscle. As a result, it is my view that the opinions of Dr. Sahjpaul and Dr. Gilbart are to be preferred over that of Dr. Hawk.

[20] The defendants submit that there is evidence that Ms. Grant reported two earlier episodes of lower back pain in 2003 and 2004 to her family doctor, and those episodes are indications that the degenerative condition in Ms. Grant’s spine had caused earlier problems. They argue that her current condition is the result of the natural progression of the degenerative disease in her spine.

[21] Dr. Abrahams testified that both these episodes were self-limiting, and that the 2004 incident was most likely due to a muscle strain. The incident in 2003 lasted only a day, and the incident in 2004 lasted approximately a month.

[22] Both Dr. Gilbart and Dr. Sahjpaul were aware of the earlier incidents in forming their opinions. Dr. Gilbart referred to both incidents in his report and noted that Ms. Grant was asymptomatic for a prolonged period prior to the January 4, 2006 motor vehicle accident. Dr. Sahjpaul testified that the type of pain Ms. Grant suffered in 2004 was likely due to a lumbar strain or soft tissue injury.

[23] For the two years prior to the accident Ms. Grant was very physically active both at work and outside of work. Her job as a resident care aide is very physically demanding. Her duties involve washing, dressing, transferring and feeding the residents of the care home. Most of the residents have very limited mobility and are confined to wheelchairs. The evidence from both Ms. Grant and a number of lay witnesses, including two of her supervisors, is that prior to the accident she was very active in her job, and voluntarily organized events and did extra shopping for the residents of the care home.

[24] As well, the evidence is that prior to the accident Ms. Grant was physically active outside of work. She loved dancing, biking, walking and working out. She frequently biked to work. She was the president of the housing cooperative in which she lived, and was active in working around the building and organizing activities at the cooperative.

[25] Since the accident, Ms. Grant has not been able to return to her pre-accident activity level. Although her employment has not changed since the accident, she does not do the extra things she did prior to the accident, nor does she participate in her extracurricular activities to the same extent. She no longer power walks or bikes to work. She is unable to dance the way she could before the accident. All of the co-workers and friends commented on the fact that prior to the accident Ms. Grant loved dancing and was the life of any party. Many commented that she no longer dances the way she used to when she attends a party.

[26] The defendants point to the fact that Ms. Grant was not candid about her pre-accident episodes of back pain with the ICBC adjuster who took her statement or Dr. Gilbart or Dr. Hawk, and argue that Ms. Grant has not been candid regarding the impacts of the injury she suffered in the accident. However, I accept Ms. Grant’s evidence of the ongoing impact of the injury on her work and extracurricular activity as it is supported by the observations of disinterested third parties, including her supervisors, her co-workers and her neighbour.

[27] It is apparent from the evidence of Ms. Grant, the lay witnesses, and her family doctor that Ms. Grant has continued have problems with pain in her left hip and buttock area since the accident. Although the episode in September 2007 was an acute episode, there is evidence that both prior to and subsequent to that episode she has been resting her leg, limping and having trouble managing her job.

[28] As stated by Dr. Gilbart and Dr. Sahjpaul the ongoing left buttock pain and occasional leg problems are indicative of the irritation of a nerve root in her lumbar spine. Although the degenerative changes could have pre-existed the accident, the current degeneration is minor. I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that, in light of the minor nature of Ms. Grant’s degenerative disease and the temporal connection between Ms. Grant’s complaints of pain in her left hip and buttock and the accident, the accident either caused the disc herniation and labral tear or rendered the pre-existing disc herniation and labral tear symptomatic.

[29] The defendants argue that there was also an intervening event which could have caused Ms. Grant’s ongoing problem. There is evidence in one of the physiotherapist’s notes that in February 2006 Ms. Grant slipped when she was getting onto the floor to stretch and as a result she was having pain. However, it was Dr. Gilbart’s opinion that it was unlikely that falling from a seated position onto the floor would cause any exacerbation of Ms. Grant’s condition. As well, Ms. Grant would not have been doing the stretches but for the accident, as it was part of her therapy. In the circumstances, the defendants have not established that the intervening event either caused or contributed to Ms. Grant’s injuries.

[30] The defendants argue that the force of the accident was not such that it could have caused the injuries to the lumbar spine. However, Dr. Hawk, the defendants’ expert, was of the opinion that the car accident likely caused a strain to the lumbar spine.

[31] Ms. Gonella testified that the accident was not a huge impact for her. She testified that after the accident she pulled over and went to speak to Ms. Grant, who told her that she was shaken up and that her back and hip were hurting.

[32] The evidence is that both cars were travelling at approximately 50 kph when the accident occurred. Although the defendants called engineering evidence in support of their argument that not much force involved in the accident, the expert was unable to make any measurements or view any pictures of the damage to Ms. Grant’s vehicle.

[33] The plaintiff’s expert engineer was of the opinion that, due to the absence of photographs or measurement of the damage to Ms. Grant’s vehicle, it is impossible to assess the degree of force involved in the accident.

[34] In my view, the defendants’ expert engineering report is of little assistance in determining the forces that were generated in the accident in light of the fact that he was unable to take measurements or review photographs of the damage to Ms. Grant’s vehicle. The tests he undertook involved different vehicles, different angles of impact and different speeds than those involved in the accident.

[35] The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle. The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries.

[36] Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered. The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37] As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed.

[38] As indicated earlier, Ms. Grant’s evidence and the evidence of her co-workers and friends is that since the accident Ms. Grant has not been able to return to her pre-accident level of performance at work or to many of her pre-accident extracurricular activities. As stated earlier, I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that Ms. Grant’s degenerative disease is minimal at this point.

[39] After considering all of the evidence, I have concluded that but for the accident the injury causing Ms. Grant’s ongoing complaints in her hip and buttock area would not have occurred.

General Damages

[40] Ms. Grant suffers ongoing pain as a result of the injuries she sustained in the accident, although she does have periods that are pain free. Unfortunately, increased physical exercise tends to exacerbate her pain, and as a result Ms. Grant is limited in the type of activities she can now engage in and has been unable to return to a number of her pre-accident activities. Ms. Grant’s evidence is supported by both the medical evidence and the evidence of the lay witnesses.

[41] All of the plaintiff and defence experts agree that Ms. Grant will suffer from recurrent episodes of pain in her left hip and buttock area. Both Dr. Gilbart and Dr. Sahjpaul opine that if her symptoms worsen, surgery might be an option but neither recommends surgery at this time.

[42] Ms. Grant and defendants have provided me with a number of cases to assist in determining the appropriate award for pain and suffering. Ms. Grant submits that an award for general damages of $90,000 is appropriate, and that the range is $80,000 to $110,000. The defendants submit that their authorities support an award for general damages in the range of $50,000 to $70,000. I have considered the authorities presented by the parties. As in most cases, there are aspects of the decisions which are helpful, but they also have features which distinguish them from this case.

[43] I am satisfied that Ms. Grant has suffered pain and suffering and loss of enjoyment of life. The evidence is that Ms. Grant’s job is very physically demanding and that she experiences pain from time to time in carrying out her job duties. As well, she was very physically active outside of work before the accident and took pleasure in exercising and in dancing. She has not been able to return to those activities. Having considered the authorities and the evidence concerning the likelihood of her recovery, and allowing for the possibility that Ms. Grant would have had problems carrying out some of her job duties and would not have been able to participate in her extracurricular activities due to her degenerative disease, I am of the view that the appropriate award for non pecuniary damages is $70,000.

Past Wage Loss

[44] The defendants do not take issue with Ms. Grant’s initial wage loss of $8,638. However, they submit that they are not responsible for Ms. Grant’s wage loss in September 2007, as that was caused by the degenerative condition in her spine.

[45] Given my conclusion that Ms. Grant’s ongoing problems are a result of the accident, Ms. Grant is entitled to recover the amount of her wage loss in September 2007 or $4,814 for a total past wage loss of $13,452.

Future Wage Loss

[46] Although Ms. Grant has been able to return to work full time since the accident, I am satisfied that Ms. Grant has established that she has suffered a diminishment in her physical capabilities that will reduce her earning capacity in the future.

[47] The evidence is that ongoing pain resulting from the accident interferes with Ms. Grant’s work from time to time. Ms. Grant takes the position that she may have to quit her job in the future because of the effects of the injury; however, there is no evidence that her job is in jeopardy. She is in a union job with a great deal of seniority, which allowed her to obtain her current day and evening shifts. The evidence is that the night shifts which she was working previously are less physically demanding than the day or evening shifts she is now working because many of the residents are sleeping.

[48] The factors to be taken into account in the assessment of future loss of earning capacity are set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.). The considerations include: whether the plaintiff is less capable of earning income from all types of employment; whether the plaintiff is less attractive or marketable as an employee to potential employers; whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her had she not been injured; and whether she is less valuable to herself as a person capable of earning income in a competitive labour market.

[49] The amount to be awarded for future loss of capacity cannot be determined precisely, and it is recognized that assessing awards under this head of damages is a matter of prophecy or “crystal ball gazing”: Knickle v. Filipovic, 2006 BCSC 1693.

[50] The medical evidence is that Ms. Grant may suffer from intermittent bouts of pain and may have to take additional time off in the future as a result. However, the evidence does not establish that Ms. Grant will have to quit her current occupation, or that there are not other options available in her current position if her symptoms became worse, such as working a lighter shift. She has recently voluntarily switched from working the lighter night shift to the more physically demanding evening shift.

[51] As stated earlier, there is no evidence that her job is in jeopardy apart from concerns she has expressed regarding the future. There is no doubt that in the event that Ms. Grant is forced to change her career because of her condition worsened, she would face difficulties obtaining employment due to her age, physical difficulties and limited education.

[52] Although it is apparent from the evidence that Ms. Grant’s physical capacity has been diminished as a result of the accident, any award for loss of earning capacity must reflect the likelihood that she would have suffered the same or similar symptoms as a result of her pre-existing degenerative disease. Having considered all of these factors, I am of the view that the appropriate award for loss of future earning capacity is $30,000.

Special Damages

[53] Special damages are agreed upon at $1,498. The only issue is whether the defendants are liable for the special damages incurred after September 2007. Given my finding that the defendants’ negligence caused the injuries resulting in Ms. Grant’s ongoing symptoms, the defendants are liable for the full amount of special damages to trial, or the amount of $1,498.

Future Care

[54] Ms. Grant is making a claim for loss of future care in the amount of $10,000. The medical evidence is that physiotherapy treatments may be of assistance. In my view, $5,000 is appropriate under this heading.

Loss of Homemaking Capacity

[55] Ms. Grant claims $10,000 for loss of homemaking capacity. There is insufficient evidence to establish that Ms. Grant will need assistance with homemaking in the future.

Costs

[56] Ms. Grant is entitled to costs at Scale B, subject to submissions.

“Gerow J.”

Citation:	*Grant v. Gonella,*
	2008 BCSC 1454