2008 BCSC 1708 Cameron v. Savory

Before: The Honourable Mr. Justice Cole

Reasons for Judgment

Counsel for the Plaintiff	K. McGee J.L. Harbut
Counsel for the Defendants	K.H. Hall
Date and Place of Trial/Hearing:	November 6, 2008
	Vancouver, B.C.

[1] This action is for damages arising out of a motor vehicle accident which occurred on May 14, 2005. There is no issue as to liability. The defendant takes the position that this was such a minor motor vehicle accident that no damages should be awarded, and if any damages are awarded, they should be reduced because of the plaintiff’s failure to mitigate her damages.

[2] The plaintiff, who was 26 years of age at the time of the accident, was a registered massage therapist. She was physically fit and healthy, running 10 km per week, attending the gym two or three times a week lifting weights, working on her cardiovascular system, and attending fitness classes. In the summer she played tennis once or twice a week.

[3] On May 14, 2005, she was driving to work and she saw a car coming out of a driveway on her left. She honked her horn, looking to her left. She was going 35-40 km per hour, holding tightly to the steering wheel when the collision occurred. She said she felt a jar and her body moved to her left. She also said her car moved slightly on impact. The damage to her car consisted of a dent on the back door, driver’s side.

[4] The repairs to her car cost approximately $1,600.

[5] She was shocked, did not get out of her car for two minutes, then exchanged information with the defendant and drove to work. She thought that she was going to be okay but after a one-hour session at work, she experienced pain in her wrist and then decided that she should not finish her job, left early, and saw a doctor at a drop-in clinic.

[6] She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw.

[7] The doctor told her to “take it easy”. She went home and put an ice pack on her wrist and shoulders.

[8] The pain in her wrist resolved within a month of the accident. The pain in her neck lasted for approximately a year and a half. Massage therapy helped with the pain in her neck; she developed better range of motion.

[9] She also began to experience headaches which resolved within a year and a half of the accident.

[10] The muscles in her jaw tightened and she experienced pain. She described the jaw pain starting after the accident as minor, though it continued to get worse. She still has some symptoms of jaw pain but it has improved with the use of a night guard.

[11] Three weeks after the accident she developed chest pains. She first noted the chest pains when she was jogging. She did not have this pain prior to the accident. When she developed the pain she stopped jogging. She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.

[12] Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.

[13] She did not play tennis for almost a year and a half because the right side of her body was sore.

[14] She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions. She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays. Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.

[15] She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.

[16] The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments. She had approximately 10 physiotherapy treatments between June and November 2006. She also had chiropractic treatments on 6 occasions in February and March 2006.

[17] The accident also affected her work as she could not put full pressure on her left side. The only medical evidence was that of Dr. Sewell, her family physician, whose one-and-a-half page opinion is lacking in detail. Although he diagnosed multiple soft-tissue injuries, there is no evidence as to what he based that diagnosis on. There is some self-reporting by the plaintiff but the only examination that was carried out was in respect to her posture. He states “she feels her posture has deteriorated since the accident and on examination showed a slight forward curvature of the upper back”.

[18] Without the factual basis upon which the doctor formulated his opinion, the legal/medical report is of no value.

[19] The defendant argues that the plaintiff failed to follow the recommendations of the doctors. Dr. Mazzarella recommended that she have physiotherapy treatment and gave her a referral. The plaintiff, however, continued on with the massage therapy which was not recommended by any of the doctors. She found that the massage therapy was giving her relief from her symptoms but she did go to physiotherapy approximately a year after Dr. Mazzarella’s recommendation.

[20] The plaintiff’s doctor also made a referral for a chiropractic treatment but she did not commence that treatment immediately. When she did start, she told her chiropractor in February and March of 2006 that she felt 80-90% better.

[21] The defendant argues that if the plaintiff had received physiotherapy treatment at the time of the referral, which was approximately two months after the accident, that her injuries would have been resolved or improved much sooner. I do not accept that as proof that her injuries would have been resolved earlier. Certainly, physiotherapy helped the plaintiff but the massage therapy was giving her a great deal of relief.

[22] The plaintiff’s dentist, Dr. Nind, discussed with the plaintiff in December of 2005 the use of a night guard which he thought may help her. She said this was not a recommendation. They purely discussed it and it was only two years later that she did obtain the mouth guard and that helped with her jaw pain.

[23] I reject the defence argument that the plaintiff failed to mitigate her damages. This intelligent, physically active woman with a three-year course in massage therapy certainly knew her own body better than any doctor. The steps she took to work through her pain and the fact that she did not lose any work, indicates to me that she is not a malingerer and took reasonable steps to get her health back.

[24] The defendant says that the claim for special damages should not be awarded. The massage therapy was done by a former classmate and friend of the plaintiff. Without a doctor’s recommendation the defendant says that those expenses should not be allowed and they refer to a decision of Mr. Justice Holmes in McNamara v. Black Top Cabs Ltd., [1999] B.C.J. No. 2584 (S.C.). There Mr. Justice Holmes, in rejecting the allowance for the chiropractic and massage therapy treatment, states at paras. 72-73:

I do not consider the type of injury the plaintiff sustained required attendance of a medical doctor, a physiotherapist, a chiropractor and a massage therapist. I do not see that Dr. Rondeau recommended the chiropractic treatment.

I have also disallowed the massage therapy account of Brad Bonar. I do not find Dr. Rondeau recommended that treatment. The evidence discloses that Brad Bonar is the plaintiff's roommate. Given the findings I have made as to the plaintiff's tendency to exaggeration I do not feel that any health care treatment provided by a friend should be accepted without evidence as to the necessity of that treatment from his supervising physician.

[25] The defendant also refers to the case of Parsons v. Ching, 2003 BCPC 378 where the trial judge, at para. 79, commented on the lack of objective evidence:

Given the numerous contradictions, inconsistencies and blatant exaggeration found in the testimonies of the Parsons, I am not satisfied that the claimants sustained the injuries as alleged and their claims are, therefore, dismissed with allowable costs to the defendant.

[26] Here, however, I am satisfied that the plaintiff is a credible witness. She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate. Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements.

[27] The defendant also refers to Snesar v. Black Top Cabs Ltd., 2005 BCPC 393 where the learned trial judge stated at para. 9:

There are two often quoted cases which set out guidelines for the Court to consider in these types of cases. In the case of Gordon v. Palmer, [1993] B.C.J. No. 474, Mr. Justice Thackray made the point that minimal damage to a vehicle is a factor that a court can consider in assessing whether or not the Claimant has met the onus of proving damages, but that minor damage in and of itself does not prove that the Claimant has not been injured. The other case is Price v. Kostryba, [1982] B.C.J. No. 1518. In that case Mr. Justice McEachern stated that the court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

[28] I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness. There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment. I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216. I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982. The plaintiff is also entitled to her costs.

The Honourable Mr. Justice F. W. Cole

Citation:	*Cameron v. Savory,*
	2008 BCSC 1708