2008 BCSC 1801 Turner v. Coblenz

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Counsel for the Plaintiff	G.P. Sinnott and S. Sinnott
Counsel for the Defendant	P.J. Field
Date and Place of Trial:	November 25, 26, 27 and 28, 2008
	Campbell River, B.C.

Introduction

[1] In this trial, the plaintiff, Patricia Olive Turner, claims against the defendant Victor Coblenz for damages for personal injuries. The plaintiff alleges that, on December 13, 2005, at Campbell River, she was injured in a two-motor vehicle accident which was caused by the negligent driving of the defendant.

[2] On the morning of the trial date, liability was admitted on behalf of the defendant, and the defence of contributory negligence was abandoned. The trial proceeded as an assessment of damages.

[3] The plaintiff claims damages only under the two categories of:

(a) pain and suffering and loss of enjoyment of life; and

(b) special damages (past and future).

Background Facts

[4] At the time of the accident, the plaintiff was 61 years of age. She is now 64. Shortly after 6:00 p.m. on December 13, 2005, the plaintiff was driving her Dodge Caravan west on 16^th Avenue, and was travelling through the intersection with Dogwood Street on a green traffic light. The defendant was driving his 1997 Chevrolet Tahoe east on 16^th Avenue, and was intending to turn left onto Dogwood Street. When he turned left, the front of his vehicle on the driver’s side collided with the front driver’s side of the plaintiff’s van. Both drivers were alone in their vehicles.

[5] The force of the impact was such that the airbags in the plaintiff’s vehicle inflated. The damage to the plaintiff’s motor vehicle was considerable, and the insurer chose not to repair the vehicle. The plaintiff was wearing her seat belt at the time of the collision. There was obviously contact between parts of the plaintiff’s body and the airbag, but she was unable to describe the movements of her body caused by the force of the impact.

[6] The plaintiff was not knocked unconscious and was able to get out of her vehicle. An ambulance came. The ambulance attendant (Brenda Alexander) noted that Mrs. Turner was hyperventilating (breathing too much) and that she was complaining of tingling in her hands and feet. The attendant also noted Mrs. Turner complained of sharp pain in her chest. The attendant described the plaintiff’s state of consciousness as being “alert/dizzy,” and 15/15 on the Glasgow coma scale.

[7] The plaintiff was taken by ambulance to the hospital emergency ward. She was examined by Dr. Anthony Aubin, the physician on duty. Dr. Aubin noted that Mrs. Turner was complaining of pain in her chest and left shoulder, as well as both of her hips. He found tenderness over her mid-sternum area. He found that the range of motion of her cervical spine and of her hips was full.

[8] At 8:30 p.m. that evening, Mrs. Turner was discharged from hospital and her son, Michael Turner, drove her home.

[9] The plaintiff saw her regular physician, Dr. Ralston, on December 15, 2005. Dr. Ralston wrote a form CL19 medical report to ICBC on March 14, 2006. By that time, Mrs. Turner had seen him five times in connection with her injuries from the motor vehicle accident. I would summarize Dr. Ralston’s findings and opinions as stated in this report, as follows:

(a) When he first examined the plaintiff on December 15, 2005, she complained of neck and head ache and a “foggy” head. At that time, he made objective findings of spasm (presumably in the neck muscles) and loss of range of motion.

(b) On March 14, 2006, the plaintiff made complaints of neck pain and stiffness, and head aches. He made objective findings of palpatory tenderness in the cervical spine area, spasm, and pain on flexion movements of the neck.

(c) In Dr. Ralston’s opinion, the plaintiff had sustained injuries to her neck and upper back, a chest wall injury and possibly a minor head injury, as a result of the motor vehicle accident.

(d) As at March 14, 2006, Dr. Ralston described the plaintiff as being capable of only light work, and only for part time. He said that she was able to work for short periods of time and should avoid lifting objects at work. He reported the plaintiff as being “capable of carrying out her non-work activities.”

[10] Beginning on December 21, 2005, the plaintiff began receiving chiropractic treatments from Dr. John Bradley, a chiropractor whom she had been visiting on a fairly regular basis for several years prior to the motor vehicle accident. It is apparent that these chiropractic treatments were taken with the approval of Dr. Ralston. It appears that some pain and anti-inflammatory medication was prescribed, but it is unclear as to how often or for how long the plaintiff took it.

[11] The plaintiff was leading a very active life at the time of the motor vehicle accident of December 13, 2005. She lived with her husband and was required to care for him in many respects, as he had been disabled by a stroke in 1992. He had not been able to work since that time, and his mental abilities had been affected to some extent. The plaintiff did the cooking, handled all the family financial matters, and did gardening. Her husband did most of the other housework, and did the yard work. By reason of his disability, her husband was sometimes very difficult to deal with.

[12] The plaintiff had been somewhat depressed, due to the death of her best friend in November 2003, and the death of her mother in January, 2004. But she appears to have been coping well with her busy life.

[13] The plaintiff contributed in a substantial way to a business owned and operated by her daughter Sharon Turner, known as Imaginations Unlimited. The main part of this business was the rental of costumes to members of the public predominantly around the times of Halloween, Christmas and Easter. The plaintiff was instrumental in making, fitting and repairing these costumes, and she also dealt directly with customers in her daughter’s shop, and took telephone calls for the business.

[14] Sharon Turner also entertained people and children at various gatherings acting as a clown. The plaintiff drove her daughter to and from these business appointments because Sharon Turner has restricted peripheral vision and so cannot drive a motor vehicle. The plaintiff also babysat her granddaughters (Sharon Turner’s children) from time to time, drove them to and from their children’s activities and made various articles of clothing for them.

[15] It appears that the plaintiff had made most of the costumes used in the rental business. She was also usually working on other sewing projects, such as articles of clothing and bed spreads. She seems to have had her own method of visualizing, designing and creating costumes and articles of clothing, without the use of patterns. The plaintiff’s abilities would seem to place her in the category of a seamstress.

[16] Sharon Turner paid compensation to her mother for her work in the business, in the form of buying her gasoline, car insurance and some groceries. The amount of this payment in kind, was significant, but not large.

[17] The plaintiff had resumed working with her daughter before Easter of 2006, but not at her previous level of activity. In her trial testimony, the plaintiff said that she has continued to feel the effects of her injuries, and to be impaired by them, in several respects.

The Issues

[18] The issues for determination are:

(a) What injuries did the plaintiff receive in the accident, and what was the degree of severity of each injury?

(b) How long did it take the plaintiff to recover from each injury and, if she has not recovered from a particular injury, when will she recover from it?

(i) for non-pecuniary loss, and

(ii) for special damages?

(d) Has the plaintiff failed to mitigate the effects of her injuries, and if so, what reduction should be made from the damages assessed by the court?

The Injuries

[19] The plaintiff alleges that she sustained the following injuries:

(a) soft tissue injury to her neck and upper back;

(b) soft tissue injury to the rotator cuff muscles in her left shoulder;

(d) soft tissue injury to her hips and low back;

(e) concussion injury to her brain which caused loss of cognitive abilities; and

(f) concussion injury to the nerves in her left ear, which caused loss of hearing ability, and loss of ability to maintain proper balance.

[20] The defendant admits that the plaintiff sustained soft tissue injuries to her neck and upper back, to her left shoulder, and to her chest wall. The defendant denies that the plaintiff sustained any injury to the hips or low back, and denies that she received any brain injury. It is conceded that the plaintiff did suffer loss of hearing in her left ear as a result of the accident, but it is argued that the cause of the hearing loss was either a labyrinthine concussion (involving only the ear canal, and not the brain) or the loud noise of the air bag inflating at impact. The defendant denies that the plaintiff sustained an injury which affected her equilibrium or balance.

[21] I agree with the defence submission that the evidence fails to prove that the plaintiff sustained any injury to her hips or lower back as a result of the accident. The plaintiff did injure her hip in a fall in August 2007, but counsel for the plaintiff did not contend (and it has not been proved) that the fall was caused by an injury received in the motor vehicle accident. I must review the evidence in order to consider the other issues raised.

Should an adverse inference be drawn against the plaintiff?

[22] Before proceeding further, I will consider an argument made by defence counsel based on the plaintiff’s failure to call certain medical witnesses.

[23] Counsel for the defendant submitted that the plaintiff’s failure to call Dr. Bradley, her chiropractor and Dr. Ralston, her family physician as witnesses at the trial should cause the court to draw an adverse inference against the plaintiff. In particular, counsel submitted that the court was deprived of evidence which was relevant to the issue of the plaintiff’s physical and mental condition in the few years before the motor vehicle accident, and how it compared to her post-accident condition. Counsel sited Busksh v. Miles 2008 BCCA 318 in support of his submission.

[24] In Busksh v. Miles, the defendant challenged the credibility of the two plaintiffs on the issue of whether they had been injured at all in the motor vehicle accident. The jury decided that neither of the plaintiffs had been injured, and the action was dismissed. One of the grounds of appeal was that the trial judge had erred in instructing the jury that they could, if they saw fit, draw an adverse inference against the plaintiffs for failing to provide the opinions of several doctors who had examined them, if the jury did not accept the explanation for this failure.

[25] Speaking for the court, Madam Justice Saunders discussed the adverse inference ground of appeal at paragraphs 16 – 38. Paragraphs 28 – 35 contain her legal analysis.

[26] Saunders J.A. first noted the traditional rule to be:

…that an inference adverse to a litigant may be drawn if, without sufficient explanation, that litigant fails to call a witness who might be expected to give supporting evidence. . . . a plaintiff seeking damages for personal injuries ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute or explain why he does not do so. (Paragraph 31)

[27] Madam Justice Saunders observed that “the present model of medical care” and “the discovery process available to both sides of a law suit” have changed considerably over the years, and stated that these changes required a new approach to instructions on adverse inference. This approach is stated in detail at paragraph 35. In essence, such an instruction should not be given, unless the circumstances of the case could reasonably support “the inference that the witness not called would have given evidence detrimental to the party’s case.”

[28] In the present case, the clinical records of Dr. Bradley and Dr. Ralston had been produced to defence counsel, and defence counsel knew (or had the opportunity to know) what the opinions of these two experts would have been. In these circumstances, I do not think that it would be open to the court to draw an adverse inference against the plaintiff from the failure to call Dr. Bradley or Dr. Ralston as witnesses.

[29] Mr. Field also complained about the failure of the plaintiff to tender a report from Dr. Andrew Crosby, the orthopaedic surgeon who treated the plaintiff for her hip injury. By the end of the trial, counsel for the plaintiff had abandoned the argument that the plaintiffs’ injury from her fall in August 2007 was related to the motor vehicle accident. Accordingly, it is unnecessary for me to consider this aspect of the argument.

Did the plaintiff sustain an injury to her brain?

[30] The plaintiff relies on the expert evidence of Dr. Galia Artzy, registered psychologist, on this issue. She is qualified in neuro-psychology. She first saw the plaintiff on April 13 and 14, 2007, which was about 16 months after the motor vehicle accident. She conducted a neuropsychological assessment of the plaintiff, and wrote a report dated April 25, 2007.

[31] A history was taken from the plaintiff, and a series of psychological tests were administered. Dr. Artzy assumed the truth of certain facts related to the motor vehicle accident of December 13, 2005, and about the apparent effects of the impact on the plaintiff. As I understood it, the facts that Dr. Artzy assumed to be true, included the following (my paraphrasing):

a) The forces applied to the plaintiff’s head and neck in the collision were capable of causing a concussion injury to her brain.

b) Although the plaintiff was not knocked unconscious by the collision forces, she was dazed, light-headed and dizzy and was unable to remember some of the events following the accident.

c) The plaintiff sustained a whip-lash injury and an injury to the rotator cuff muscles in her left shoulder.

d) Before the accident, the plaintiff was a reasonably skilled seamstress, and therefore would have possessed above average cognitive ability for visual – spatial organization and for hand dexterity.

[32] Dr. Artzy’s neuropsychological assessment of the plaintiff in April 2007 included the opinion that she had suffered a concussion injury to the right side of her brain, which Dr. Artzy described as a coup-contre coup impact concussion. The main findings relied on by Dr. Artzy in reaching this opinion appear to be her conclusions, based on the neuropsychological testing, that the plaintiff had suffered a loss of cognitive ability in the areas of visual-spatial organization and left hand dexterity. Dr. Artzy placed considerable weight on the plaintiff’s loss of “her ability to manipulate shapes and forms in her mind’s eye – a skill that is imperative to a seamstress, and in particular to one who uses visual creativity in designing costumes and producing crafts.” (page 14 of her report).

[33] Dr. Artzy expressed the opinion that improvement in the plaintiff’s condition was to be expected, but would require treatment by way of anti-depressive medication (for anxiety and depression) and about three months of weekly psycho-therapy sessions with a registered psychologist. She recommended that the plaintiff’s visual-spatial skills should be reassessed in about one year.

[34] Dr. Artzy reassessed the plaintiff on August 29 and 30, 2008, and wrote a second report dated September 10, 2008. The plaintiff had not followed her recommendations that she take anti-depressive medication and psycho-therapy. The plaintiff told Dr. Artzy that she stopped taking the medication because of its side-effects, and that she did not seek psycho-therapy because she felt that the support and love of her friends and family would prevent her from becoming isolated. The plaintiff also told Dr. Artzy that she had been under stress associated with a family dispute over her step-father’s inheritance, and her continued grieving over her mother’s death. The plaintiff complained about having increased levels of self-doubt, emotionality, and being reluctant to do things on her own.

[35] Dr. Artzy repeated most of the neuropsychological tests that had been conducted on the plaintiff in April 2007. In Dr. Artzy’s opinion, the plaintiff’s “visual-spatial skills indeed have improved significantly”, although she thought these skills still seemed “lower than expected for a seamstress.” (see page 5 of the report). Her working memory had decreased, but Dr. Artzy thought this could have been caused by pain, depression, anxiety or an increase in the plaintiff’s physical or emotional stress. Decreased concentration was noted, which Dr. Artzy said was “likely associated with emotional factors.” (page 9) The plaintiff’s “ability to mentally abstract, manipulate, and synthesize spatial images” had improved from “the mildly impaired range” to “the average range.” (page 9).

[36] In Dr. Artzy’s opinion, there had also been improvement in the plaintiff’s executive function and left-hand manual dexterity. She opined that the plaintiff’s improved scores on some of the cognitive ability tests were consistent with some improvement to her brain injury. It was her opinion that much of the plaintiff’s difficulty with attention, concentration and speed of processing was attributable to “her deteriorated emotional functioning.”

[37] It was Dr. Artzy’s further opinion that the plaintiff was more depressed and more anxious than she had been in April 2007, and that “psychological treatment and support are paramount.” She stated that depression and anxiety were affecting the plaintiff’s cognitive functioning level in several areas. Dr. Artzy recommended a year of weekly psychotherapy sessions with a registered psychologist. In her opinion, the plaintiff had recovered from her brain injury to some extent, but was still experiencing some symptoms from it.

[38] In cross-examination, Dr. Artzy testified that the diagnosis of a brain injury requires the identification of at least one of three factors: loss of consciousness, amnesia and/or loss of cognitive ability. She agreed that the absence of loss of consciousness and amnesia suggested that there was no brain injury, but stated that the absence of those factors was not conclusive.

[39] Dr. Artzy agreed that some cognitive deficit can be caused by chronic pain and by depression. She testified that she did not believe that the plaintiff’s left hand dexterity had been adversely affected by her left shoulder injury or by her previous problems with carpal-tunnel syndrome (which was in both hands). Dr. Artzy noted that she had made an error at page 10 of her second report, when she stated: “her previous scores were consistent with her complaints of left arm pain.”

[40] Dr. Artzy agreed that it was possible that the plaintiff’s reported lack of motivation and disorganization had been caused by pain, depression and grief.

[41] Dr. Artzy agreed that the majority of persons who had sustained a mild brain injury will recover in three to six months. She agreed that the plaintiff had chronic pain, depression and anxiety and that these conditions may have affected her scores in some of the tests, such as those measuring concentration and memory abilities.

[42] Counsel for the defendant suggested to Dr. Artzy that the plaintiff’s dizziness after the accident could have been caused by her hyper-ventilating, and Dr. Artzy seemed to agree with this. But she did not accept that the plaintiff’s apparent disorientation was all caused by hyper-ventilating, because the ambulance attendant had noted that the plaintiff was not given any oxygen to treat the hyperventilation.

[43] It should be noted that Dr. Artzy did not attempt to identify the causes of the plaintiff’s depression and anxiety, and thus did not attempt to link them to the injuries sustained by the plaintiff in the motor vehicle accident.

[44] Dr. Ian Turnbull, neuro-surgeon, gave opinion evidence with respect to the injuries sustained by the plaintiff. He examined the plaintiff on August 6, 2008, prepared two written reports and also testified at the trial. He was asked to comment on the opinions expressed by Dr. Stanley Leete, orthopaedic surgeon and by Dr. Artzy.

[45] With respect to Dr. Artzy’s opinion, Dr. Turnbull disagreed with her opinion that the plaintiff had suffered injury to the right side of her brain as a result of a coup-contre coup concussion injury. In his view, none of Dr. Artzy’s findings suggested that the plaintiff had sustained an injury of that kind, and in order for that to occur, there would have to be a loss of consciousness. He also testified that, if the plaintiff had suffered a coup-contre coup concussion injury to the right side of her brain, she would have experienced noticeable motor deficit on her left side (and he noted there was no evidence that this had occurred).

[46] In cross-examination, counsel put the following hypothetical question to Dr. Turnbull: If the airbag in the plaintiff’s motor vehicle deployed as a result of the collision, if the plaintiff was unable to recollect details of the events immediately following the accident, if she was confused following the accident and if she experienced hearing loss not long after the accident, then could those symptoms be evidence that she had suffered a mild concussion as a result of the accident? Dr. Turnbull discounted the relevance of hearing loss, but conceded that it was possible that the other symptoms could be evidence of a mild concussion.

[47] Dr. Turnbull stated that he did not disagree with Dr. Artzy’s opinion as to the psychological effects of the motor vehicle accident on the plaintiff. He further stated, in effect, that if the plaintiff had lost some ability to deal with visual–spatial problems, that finding would not by itself indicate injury to any specific part of the brain.

[48] Counsel questioned Dr. Turnbull about the last sentence in his report dated November 5, 2008, which reads:

Ms. Turner’s ability to clearly recollect the MVA and records of her conduct and complaints when she was taken to the Campbell River Hospital on the day of the accident rule out the possibility of her having sustained brain injury of any significance.

[49] Counsel asked Dr. Turnbull what he meant by a “brain injury of any significance.” He answered that he was referring to an injury that was “not important,” such as a minor concussion from which people recover in a short time. I think it was implicit in Dr. Turnbull’s evidence that it was possible that the plaintiff sustained a very minor concussion to her brain, but that if this did occur, then she had recovered from it soon after the accident, and long before she saw Dr. Artzy.

Discussion

[50] Both Dr. Artzy and Dr. Turnbull are experienced specialists and well qualified to give opinion evidence on the issue. I accept Dr. Artzy’s opinion that a mild (but significant) concussion injury can occur, without loss of consciousness or amnesia being identified. I do not think that Dr. Turnbull disagreed with this proposition, except to say that any such concussion injury would be minor. However, I have some reservations about accepting Dr. Artzy’s diagnosis of brain injury. This is not because of any concern about her qualifications, experience or skills as a neuro-psychologist. Rather, I question whether some of the main facts she assumed to be true, have been proved. First, Dr. Artzy relied upon the fact that the plaintiff “experienced a brief period of altered consciousness” after the collision.

[51] The plaintiff testified about the events that occurred after the collision. She described how she got out the driver’s door, and seeing the driver of the other vehicle there. She said he had a bleeding nose and told her he was sorry. She said she realized that her car engine was still running, so she went and reached into the vehicle and shut off the keys. She said she saw a lady with a cell phone, and she asked the woman to call her home and tell her son and husband that she was alright. The plaintiff said she saw a little boy on or near the roadway, and because of the traffic she was concerned for his safety and told him to stand back. She described how she was hyperventilating and that she felt somewhat offended when the ambulance attendant told her (while they were in the ambulance) that a woman of her age should be able to handle matters without hyperventilating. The plaintiff did testify that she did not recall driving to or arriving at the hospital, but I understood her to mean that she does not now recollect any of the details of the ride to the hospital or arriving there. She seemed to recall what occurred when she arrived at the hospital, beginning with when she saw her son in the hallway.

[52] The experts agreed that hyperventilating can cause dizziness and tingling in the limbs. It appears that Dr. Artzy was not informed of these details of the plaintiff’s memory of events following the accident. Had she known these things, she may not have concluded that the plaintiff was briefly in a state of “altered consciousness”.

[53] Second, I do not take issue with Dr. Artzy’s assumption that, before the motor vehicle accident, the plaintiff was a reasonably skilled seamstress. Nor do I disagree with her assumption that one would expect a reasonably skilled seamstress to have better visual-spatial skills and left hand dexterity than she found the plaintiff to have, 16 months after the accident. But I am hesitant to accept the assumption that the plaintiff’s skills in these two respects were significantly greater before the accident.

[54] The plaintiff’s sister, Mary Stoker, testified about the plaintiff’s skills as a seamstress, and her enthusiasm for such work. Ms. Stoker testified that the plaintiff could visualize in her head what a person wanted (various kinds of costumes and dresses), and then make that article of clothing, without using patterns. She described the plaintiff’s skills as being superior to her own, and above those of the average home sewer. Ms. Stoker stated that the plaintiff now does not have the patience or focus to do the fine work involved in seamstress work, and now does not have the same enthusiasm for sewing that she had before the accident. She described the biggest change that she has seen in the plaintiff is her inability to focus, her forgetting some things, and her sometimes snapping at children. But Ms. Stoker did not say that the plaintiff had lost her skills as a seamstress, only that she does not seem to enjoy it or have the patience for doing it, that she used to exhibit.

[55] Sharon Turner, the plaintiff’s daughter, testified that her mother now cannot make clothing and costumes the way she used to do, but she seemed to attribute this change to her mother’s loss of strength and stamina and the pain she was experiencing from her injuries. Ms. Turner said that her mother did not have the stamina to sew for hours at a time, and that she “can’t produce the costumes like she used to do.” Moreover, she said that the plaintiff had become short tempered and was not enjoying life the way she used to. The plaintiff’s son, Michael Turner, confirmed what his sister had said about their mother.

[56] I conclude that there is considerable doubt as to whether the plaintiff possessed the visual – spatial skills and the left-hand dexterity before the accident, at the level assumed by Dr. Artzy.

[57] I have a third concern about the facts upon which Dr. Artzy relied. I cannot fault Dr. Artzy for assuming that the force of the impact exerted on the plaintiff’s body at the time of the collision was capable of causing a significant concussion injury to the brain. But the sufficiency of the evidence to support this inference is, in my opinion, questionable. There was no visible injury to the plaintiff’s head, and there was no evidence to establish the speeds at which the two vehicles were traveling at the time of impact nor do the photographs to the damaged vehicles support an inference that high speed was involved. In these circumstances, I am hesitant to conclude that the assumption made about the force of impact is valid.

Conclusion

[58] The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges. In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident. But I am not persuaded that it is more probable than not that this occurred.

What type of injury caused the plaintiff’s loss of hearing?

[59] As mentioned, it was conceded that the plaintiff suffered a significant loss of hearing in her left ear as a result of the accident. It was alleged on behalf of the plaintiff that the hearing loss was caused by a labyrinthine concussion to the inner ear, or by nerve injury due to coup-contre coup concussion to the brain which stretched the nerve. The defendant alleged that the hearing loss was caused either by a labyrinthine concussion or by the loud noise of the air bag inflating. The importance of the cause of the hearing loss has significantly diminished, in the face of my finding that a brain injury has not been proved.

[60] Dr. Charles van Rooy, an ear, nose and throat specialist (and surgeon) gave evidence on this issue. He examined the plaintiff on April 7, 2008, wrote a report of the same date and testified in court. In Dr. van Rooy’s opinion, the hearing loss was caused by trauma suffered by the plaintiff in the motor vehicle accident. He said that the cause was either a concussion to the brain or a labyrinthine concussion. He was not prepared to concede that the inflating air bags could cause such an injury.

[61] Dr. van Rooy described the extent of the hearing loss and stated that the plaintiff would have no difficulty hearing when engaged in a face-to-face discussion with another person, without significant background noise. He said the condition was permanent, and recommended that the plaintiff should obtain and use two hearing aids to improve her hearing ability. He said that each hearing aid would cost between $3,000 and $4,000, that they would last for about five years or so, and that the batteries would cost about $60 per year.

[62] In cross examining the plaintiff, counsel for the defendant sought to establish that the plaintiff would probably not wear hearing aids, even if they were purchased for her. The plaintiff made some concessions in this regard, but I was not persuaded that awarding an amount for hearing aids would be futile.

Conclusion

[63] I accept Dr. van Rooy’s opinion that the plaintiff sustained a mild loss of hearing ability as the result of injuries she sustained in the accident. I also accept his opinion (at page 2 of his report dated April 7, 2008) that “part of this nerve hearing loss is due to age-related changes of the cochlea.” I find that the remainder of the cause was a mild labyrinthine concussion.

Did the plaintiff suffer a loss of her ability to maintain proper balance?

[64] When Dr. van Rooy examined the plaintiff she told him that sometimes after doing strenuous activities such as shovelling, she felt a tendency to want to fall to her right and veer to her right when walking. She said that this had only rarely occurred, and that it had not occurred before the accident.

[65] Dr. van Rooy conducted a balance test on the plaintiff, and noted that she had a tendency to veer to the right when walking, which he described as mild. Dr. van Rooy seemed to relate the plaintiff’s complaint of dizziness as only occurring at the time of her occasional balance difficulties. In his opinion:

The dizziness is not serious and it has little impact on her qualify of life in terms of her daily activities.

[66] He also described “the hearing loss over all” as being “of mild degree in terms of impact on her life.” It is Dr. van Rooy’s opinion that the plaintiff’s condition will not worsen, but will remain constant.

[67] At trial, the plaintiff testified that she had problems with her balance when she gets up from a sitting position and when she goes up and down stairs. She described this problem as a feeling of going sideways and she said that she is on the lookout for it to occur, so she moves slowly. The complaints she made to Dr. van Rooy about her balance problem seemed to be inconsistent with her trial testimony, to some extent.

[68] On cross examination, counsel for the defendant questioned the plaintiff about notes made by Dr. Bradley, her chiropractor, in his clinical records.

[69] The plaintiff was referred to a note made by Dr. Bradley dated January 15, 2003, which stated that the plaintiff had told him that she “fell a few days ago.” The plaintiff agreed that she had passed out and had fallen into the bath tub while talking on the phone upon hearing that her friend had been diagnosed with cancer.

[70] In a note dated April 28, 2004, Dr. Bradley wrote: “fell a month ago.” The plaintiff agrees that she had fallen at that time, but gave no details about it.

[71] On November 11, 2004, Dr. Bradley noted that the plaintiff “fell on right side.” The plaintiff testified that she had fallen on two occasions while negotiating the two stairs leading into her bedroom.

Conclusion

[72] I infer that Dr. van Rooy accepted the plaintiff’s statements to him, and assumed that she had not experienced any problems with her balance before the motor vehicle accident. The plaintiff’s trial testimony casts serious doubt on that assumption. I conclude that it has not been shown that the injuries sustained by the plaintiff in the accident caused her to have balance problems, or that they aggravated any balance problems that pre-existed the accident.

When will the plaintiff recover from her left shoulder injury?

[73] The plaintiff relies on the evidence of Dr. Stanley Leete, orthopaedic surgeon. In his opinion, the plaintiff still has some residual neck and shoulder discomfort. Dr. Leete states:

Any work involving her looking up and working above shoulder level will provoke pain, not only in the shoulder, but also in her neck.

[74] Dr. Leete expressed the opinion that the plaintiff will eventually completely recover from her injury, and that this should occur “within two years.”

[75] The defendant again relies on the expert evidence of Dr. Ian Turnbull, neuro-surgeon. In Dr. Turnbull’s opinion, the only evidence of continuing residual effect in the plaintiff’s left shoulder injury is that she experienced “some discomfort” when he moved her shoulder through its full range of movement. He did not consider this to be physically disabling. His opinion appeared to be that the plaintiff had achieved substantial recovery.

Discussion

[76] Dr. Leete examined the plaintiff on four occasions, namely:

1. July 12, 2006;

2. September 6, 2006;

3. November 15, 2006; and

4. September 3, 2008

[77] Dr. Leete wrote two reports, the first dated November 15, 2006 and the second dated September 3, 2008. In his first three examinations of the plaintiff, Dr. Leete made objective findings which supported the plaintiff’s complaints of ongoing pain in her neck and left shoulder. In his examination of September 3, 2008, Dr. Leete found “ongoing tenderness in the paravertibral muscles on either side of her neck”, although she had a full range of movement in the neck. Dr. Leete found that the plaintiff had regained full strength in her left shoulder, but was experiencing pain when moving her arm up to and above the level position. In my opinion, these findings of Dr. Leete are a combination of both objective and subjective evidence.

[78] On November 15, 2006, Dr. Leete thought that the injury to the plaintiff’s neck and to her rotator cuff should resolve in “several more months”. He said that if the shoulder pain persisted, “then I think it would be appropriate to carry out a subacromial injection of local anaesthetic and steroid.” His opinion at that time was that “it may be a further eighteen months or so before we can anticipate total resolution.”

[79] When Dr. Leete saw the plaintiff 22 months later on September 3, 2008, he opined that the plaintiff would be fully recovered “within two years.” He made no mention in his final report about a cortisone injection into the plaintiff’s left shoulder.

[80] In his trial testimony, Dr. Leete stated that the plaintiff could benefit from the cortisone injection into her shoulder joint, which he had previously recommended. He did not think that physiotherapy or chiropractic treatments would help the plaintiff, at this time.

[81] On cross-examination, Dr. Leete agreed that, if the cortisone injection was successful, it would likely shorten the recovery period, although more than one injection might be necessary. He said that there could be full recovery in a year, if such treatment was taken and proved successful. Dr. Leete expressed the opinion that, if the plaintiff had received the cortisone injection treatment in 2006, there is a 50/50 chance that she would have recovered from her left shoulder injury by now.

[82] Dr. Turnbull examined the plaintiff on only one occasion, August 6, 2008. He made the following essential findings:

a) “When her left shoulder is put through a full range of passive movement, she experiences some discomfort.” (page 3)

b) “I found no evidence, on physical examination, of physical disability.” (page 4)

[83] Dr. Turnbull was later asked by defence counsel to comment on Dr. Leete’s report dated November 15, 2006 (I presume Dr. Leete’s second report was not then available to counsel). In his second report of November 5, 2008, Dr. Turnbull did not disagree with Dr. Leete’s opinion. In his trial testimony, Dr. Turnbull agreed with Dr. Leete’s opinion that a cortisone injection into her left shoulder would help her recovery. He did not contradict Dr. Leete’s opinion that the plaintiff’s full recovery may take up to two more years.

[84] As I interpret Dr. Turnbull’s opinion, he found some evidence of ongoing pain in the plaintiff’s left shoulder, but believes that this pain does not disable her. He seemed to accept the plaintiff’s complaint that: “when she has to work holding things over her head, her shoulders become tense and uncomfortable.” (report dated August 7, 2008, page 3)

[85] I see no contradiction between the findings made by Dr. Turnbull on August 6, 2008, and those of Dr. Leete made on September 3, 2008. The plaintiff testified that her left shoulder does not hurt all of the time, only when she does things with her arms extended to the front, or above shoulder height. I accept that evidence. I also accept that this residual shoulder pain does not totally disable the plaintiff from doing such activities. But in my opinion, her ability has been and continues to be impaired, in this respect.

The effects of the injuries on the plaintiff

[86] I do not intend to summarize all of the evidence presented which describes the effects of her injuries on the plaintiff’s ability to do the things that she had been doing before the accident. As mentioned, she had been leading a full and very active life, and had been depended upon by her family to carry out numerous responsibilities. She had also been deeply involved in her daughter’s business. I find that the impact of her injuries on her former activities was devastating for several months after the accident. About four months after the accident, the plaintiff resumed some of her work with her daughter but has never attained the level of productivity she had been achieving before the accident. In addition to the impairment of her physical abilities, the plaintiff experienced considerable pain and suffering. Those effects were more pronounced in the first six months after the accident, but they have continued, in lesser measure, up to the present time.

[87] The plaintiff’s hearing impairment is of course permanent. The injury to her left shoulder continues to trouble her. There are a number of activities which cause pain to emanate from her rotator cuff muscles, and impair her functioning. It bothers her the most, when she is working with her arms out in front of her or reaching above her shoulder.

[88] I find that the plaintiff had recovered from the soft tissue injuries to her neck and upper back and to her chest wall within about 18 months after the accident. I think her recovery was complicated and hindered by the underlying depression and anxiety that she had been experiencing, before the accident. Those psychological problems increased after the accident. I find that some of that increase was due to the injuries she sustained, but that by far the most of it is attributable to the plaintiff’s failure to take medication or therapy. Her condition was also aggravated by a dispute caused by her two older sisters concerning the settlement of their mother’s estate. The plaintiff’s physical activities have been significantly impaired by the hip and low-back injury sustained by the plaintiff when she fell in August 2007, while working on a deck at her daughter’s place.

Conclusions - Summary

[89] I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall. I would describe the severity of these injuries as being moderate.

[90] I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident. Not all of this loss of hearing was caused by the injury. Some of it was attributable to the normal aging process. I accept Dr. van Rooy's description of the overall loss of hearing ability as being mild.

[91] I am not satisfied that the plaintiff sustained injury to her brain. Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium.

[92] The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder. Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future. These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions. To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop. But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder. The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation. But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

What amount should be awarded for non-pecuniary loss?

[93] Counsel for the plaintiff submitted that the appropriate range of damages for non-pecuniary loss is $45,000 to $90,000. Counsel for the defendant submitted that the proper range was $25,000 to $35,000. Both sides have referred me to case authorities that support their respective positions, on the assumption that their version of the facts is accepted. The facts which I have found do not correspond with the set of facts advanced by either side.

[94] It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall. No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity. The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different. The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.

[95] With these qualifications in mind, I have read all of the cases cited by counsel to support their arguments. The evidence proves a substantial possibility that the plaintiff will continue to experience intermittent problems with her left shoulder for the next two years. The injuries have caused substantial interference with the plaintiff’s ability to perform her pre-accident activities. The hearing loss is permanent, but causes only mild impairment. I conclude that, as a result of the injuries caused by the negligence of the defendant, the plaintiff has incurred a significant amount of pain and suffering and loss of enjoyment of life. There is a reasonable probability that these effects will continue, to a lesser degree, with respect to the plaintiff’s left shoulder, for up to two more years. In my opinion, Mrs. Turner’s damages for non-pecuniary loss should be assessed at $55,000.

[96] In making this assessment, I have taken into account the effects of the injuries on the plaintiff’s housekeeping and gardening abilities. I see no proper basis for making a separate award under this head.

Has the plaintiff failed to mitigate her loss?

[97] The defendant alleges that the plaintiff has failed to mitigate her damages by failing to accept and undergo the cortisone injection treatment that was recommended by Dr. Leete in 2006. Dr. Leete testified at trial that, had the plaintiff undergone this treatment, there was a 50% chance that she would have recovered within a year following the treatment. In his two reports, Dr. Leete did not mention any discussion he may have had with the plaintiff about this recommended course of treatment. Nor was he asked about it when he testified at the trial.

[98] The plaintiff testified that Dr. Leete may have told her that a cortisone injection could help resolve the pain in her shoulder and chest, but she seemed uncertain in this respect. She did say that she never got the impression that Dr. Leete was urging her to have the injection, and said she would have taken the injection if she felt that he was urging her to do so. She stated that she had received such an injection into her hip from Dr. Crosby (a colleague of Dr. Leete) after her fall in the summer of 2007 and said that she would not have had any reluctance to undergo a similar injection in her shoulder.

[99] In cross examination, Mrs. Turner agreed that she probably talked to her daughter Sharon about whether or not she should have a cortisone injection into her left shoulder.

[100] Sharon Turner testified that her mother had told her about Dr. Leete’s recommendation of a cortisone injection for her left shoulder. She said that she encouraged her mother to take this treatment. I infer that Mrs. Turner did have this discussion with her daughter and that she declined to take the treatment recommended by Dr. Leete.

[101] The defendant bears the onus of proving the essential elements of failure to mitigate, which are the following:

(a) That a qualified medical expert recommended that a plaintiff undergo a particular form of treatment;

(b) That the plaintiff failed or refused to take the recommended treatment although it was available to him or her; and

(c) That the plaintiff’s refusal or failure was unreasonable, in that if the plaintiff had taken the recommended treatment, there is some likelihood that he or she would have received substantial benefit from it, and the treatment would not expose the plaintiff to significant risk.

See Janiak v. Ippolito [1985] 1 S.C.R. 146; Chiu (guardian ad litum of) v. Chiu 2002 BCCA 618 at paragraph 57; and Middleton v. Morcke 2007 BCSC 804 at paragraph 37.

[102] The first two essential elements of this defence were not in dispute and have been well made out. The question is whether the plaintiff’s refusal to undergo the injection treatment has been shown to be unreasonable.

[103] Counsel for the plaintiff submitted that Dr. Leete had estimated the chances of success for the injection treatment was only 50%, and it was said that this evidence failed to meet the burden of proof placed on the defendant. I do not agree with this submission. The 50% chance that the plaintiff would receive substantial benefit from this treatment is, in my view, sufficient. Moreover, there was no suggestion that the plaintiff would be exposed to any significant risk by undergoing the injection nor did the plaintiff say that she was afraid to have the injection.

[104] I conclude that the plaintiff acted unreasonably in failing to submit to the treatment recommended by Dr. Leete. However, I think it is obvious there is a substantial possibility that the treatment would fail to induce full recovery of the plaintiff. Taking all of the circumstances into account, I have decided that the plaintiff’s damages should be reduced by 10%. This means that the award for non-pecuniary loss will be reduced from $55,000 to $50,000.

[105] In my judgment, the defence of failure to mitigate does not apply to the issue of special damages.

[106] I would add that, even if I had found that the plaintiff had sustained a mild brain injury, I would not have accepted the defence of failure to mitigate on that issue. Dr. Artzy recommended psychotherapy, but in my opinion, the plaintiff did not “refuse” to take it. Her counsel took steps to follow up with Dr. Artzy’s recommendation, but was unable to get the assistance of the plaintiff’s regular physician. The plaintiff could not afford to pay the cost of such treatment on her own, and another source of funding was not easily available.

What amount should be awarded for Special Damages?

[107] The plaintiff had 55 chiropractic treatments between December 21, 2005 and September 26, 2008. With respect to expenses for chiropractic treatments for which the plaintiff has not been reimbursed, those expenses will be allowed up to August 3, 2007. I am not persuaded that after that date, the treatments related to any injury sustained in the motor vehicle accident.

[108] I would make the same allowance with respect to the expenses incurred by the plaintiff for medication. Any such expenses that were incurred before August 3, 2007, and have not been reimbursed, will be allowed. I will leave it to counsel to agree on the amounts of the expenses which I have described because I think they can calculate the proper amounts much more easily than I can.

[109] As to the claim for cost of future care, Dr. Van Rooy recommended hearing aids that would cost between $3,000 and $4,000 each, and said that replacing the batteries would cost about $60 per year. Counsel for the defendant properly argued that some risk exists that the plaintiff might not purchase hearing aids if an award is made, and if she does purchase them she may not make significant use of them. I accept that some risk exists in this regard. But I am not persuaded that this risk is enough to neutralize the plaintiff’s claim on this issue. However, I do take the risk into account. I will award $7,000 to cover the cost of hearing aids, and a further $180 to cover the cost of purchasing replacement batteries for several years. I think the evidence supports the conclusion that the plaintiff will not use the hearing aids on a regular basis so that she will not wear them out in the time estimated by Dr. Van Rooy, and will not use as many batteries as would a regular user.

Costs

[110] Absent the existence of relevant matters of which I am not aware, the plaintiff will have her costs of this proceeding, at the usual scale.

____________________

D.A. Halfyard, J.

Citation:	*Turner v. Coblenz,*
	2008 BCSC 1801