IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Parker v. Lemmon, |
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2012 BCSC 27 |
Date: 20120111
Docket: M59292
Registry: Nanaimo
Between:
Sherry Parker
Plaintiff
And:
Bonnie Lemmon, Swiftsure Taxi Co. Ltd.
and Scott Nymann
Defendants
Before: The Honourable Mr. Justice Savage
Reasons for Judgment
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Counsel for the Plaintiff: |
Greg Phillips |
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Counsel for the Defendants: |
Katherine Whitfield |
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Place and Date of Trial: |
Nanaimo, B.C. November 28-30, 2011 and December 1-2, 2011 |
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Place and Date of Judgment: |
Nanaimo, B.C. January 11, 2012 |
[1] The plaintiff, Sherry Parker (now Sherry Nash) (“Ms. Nash”), claims damages arising out of two motor vehicle accidents which occurred December 19, 2008 and January 9, 2009 in Nanaimo, B.C. The defendants in both collisions admit liability. There is no allegation of contributory negligence.
[2] The first collision occurred at approximately 1:00 p.m. on December 19, 2008 when Ms. Nash was rear-ended by a vehicle driven by Ms. Bonnie Lemmon. Briefly, snow was falling and the roads were slippery. Ms. Lemmon‘s vehicle, a Toyota Previa, could not stop and slid into the rear of Ms. Nash’s vehicle, a Dodge Neon. The impact was not great and minor damage only was sustained by the Dodge Neon.
[3] The second collision occurred shortly after 9:00 a.m. on January 9, 2009. Ms. Nash had dropped off her son at school. A taxi driven by the defendant Mr. Scott Nyman and owned by the defendant Swiftsure Taxi Co. Ltd. pulled in front of her but stalled when it encountered a patch of ice. A collision resulted. The older model Dodge Shadow Ms. Nash was driving sustained significant damage and was written off.
[4] After both accidents Ms. Nash attended a medical clinic the same day. She saw various physicians thereafter. Her injuries include injuries to her neck, back, and shoulders. She has myofascial pain and headache. She claims damages for negligence including non-pecuniary damages, past wage loss, future wage loss/loss of earning capacity, loss of housekeeping capacity, cost of future care, and special damages totalling nearly $180,000.
[5] The defendants argue that the total damages in this case should be less than $40,000. They say that Ms. Nash has a variety of pre-existing conditions and the impact of the collisions on her health has been much less dramatic than she asserts. The defendants say that her claims should be treated with some scepticism because there is little or no objective evidence of injury. There is also little evidence that she sustained any left shoulder injury in the collisions.
[6] The case proceeded on the basis that the Court need not consider an apportionment of the damages between the defendants, as the evidence reveals injuries that are, for these purposes, indivisible: See Bradley v. Groves, 2010 BCCA 361.
[7] The issue before the Court is the assessment and quantification of the plaintiff’s claims under the various heads of damages. The assessment and quantification is complicated by: (1) Ms. Nash’s pre-existing injuries; (2) her ongoing health conditions; (3) her pre- and post-accident employment history; and (4) other stressors in her life.
[8] Ms. Nash was born in 1968 and is 43 years old. She has two children living at home. Although Ms. Nash is married, her husband resides in Bellingham. At the time of the accidents she was employed as a personal care aide with “Claire’s Home Care Services Ltd.”, earning approximately $14 per hour. She worked 20-30 hours a week. She had also had a WCB claim related to a workplace injury in the year prior to these events. The evidence establishes, however, that the workplace injury was resolved prior to the injuries sustained in the motor vehicle accidents.
[9] The injuries she asserts were caused by the accidents are pain in the area of her cervical spine, right shoulder, and low back; right arm numbness and tingling; headaches; and left shoulder pain. Although the first accident was relatively minor she felt headache and shoulder pain which increased over the first 48 hours. She attended a medical clinic on the date of the accident and saw a clinic physician. She spent a week at her parents’ home while recuperating and did not return to work.
[10] The second accident was more serious than the first and, as evidenced by the vehicle damage, involved greater forces than the first. Again, she attended a medical clinic on the day of the accident. She again stayed with her parents for a period after the second accident.
[11] Ms. Nash missed work from December 19, 2008 (the date of the first accident) until April 8, 2009 (approximately three months after the second accident). The parties agree that her net wage loss over this period is $5,187.19.
[10] Although Ms. Nash returned to work in April 2009, she says she continued to experience pain in her shoulders and neck. She trained to become and enjoys working as a personal care aide, and received “kudos” from clients for her efforts. Nevertheless, the job requires her to move and provide personal care for mobility challenged clients. This proved too difficult and painful for her and culminated in her leaving this employment in 2011, over two years after the accidents. She has been exploring new career opportunities and has faced other challenges since that time.
[11] Ms. Nash also has been diagnosed with a variety of ongoing, unrelated chronic conditions, such as irritable bowel syndrome, B12 deficiency, diabetes, and some diabetes-related matters such as retinopathy, reduced liver function, and early neuropathy in her feet. The diabetes has resulted in hospitalization on at least one occasion. Dr. G.A. Vaughn, an experienced family physician who examined Ms. Nash, also listed “chronic situational occupational stress with secondary depression and anxiety”.
[12] There is a medical report dated August 2, 2011 in evidence from Dr. Vaughn. Dr. Vaughn’s clinical records are also in evidence. In Dr. Vaughn’s report of July 1, 2011, he references other matters he has reviewed, including a Functional Capacity Evaluation from Harbourview Rehabilitation, two medical reports from Dr. Lynne MacKean, and the clinical records from Nanaimo Physiotherapy Clinic. He notes that he has seen many patients with motor vehicle related muscle and ligament injuries.
[13] In his opinion Ms. Nash has a “Grade 2 WAD-associated injury of upper and lower back and neck musculature and ligamentous structures”. While she has full range of motion in her neck and right shoulder, she experiences pain. He opines that her work and recreation has been restricted, and her symptoms will continue to affect her into the future. Ms. Nash will “continue to have particular difficulty with lengthy standing, stooping or bending or other task that require a great deal of mobility”.
[14] Dr. Vaughn was cross-examined. Much of his opinions rely on self-reporting by his patients. He assumes that they are reporting honestly, and tries to be a supportive caring physician. Dr. Vaughn acknowledged that Ms. Nash had been diagnosed with the various conditions referenced above that have also impacted her day-to-day living.
[15] Dr. Lynne MacKean also testified. She is a specialist in Physical Medicine and Rehabilitation. Dr. MacKean did an independent medical evaluation. In her report of January 25, 2010, she indicated that Ms. Nash was “very pleasant, cooperative and straightforward throughout the interview and examination process with no evidence of exaggerated pain behaviour”. In her opinion “…the ongoing problems that she describes with neck, upper back, lower back and right shoulder girdle and arm pain are related to injuries sustained in the motor vehicle accidents that occurred on December 19, 2008 and on January 9, 2009”.
[16] In an updated report dated November 30, 2010, she also opined that “both of the motor vehicle accidents are responsible for her ongoing symptoms”. Dr. MacKean provided the following opinions:
In the functional capacity assessment it was the occupational therapist's opinion that she was best suited for activity requiring light and modified medium strength work. He felt she would have difficulty with repetitive overhead work, repetitive and prolonged below waist level work, prolonged positioning of her neck and forceful repetitive use of the right arm and shoulder.
With her work as a care aide in homecare she does have work where she does repetitively use her right arm and occasionally above shoulder level and also activities that are aggravating for her lower back pain.
In my opinion she should be able to continue working part time in this job position up to 25 to 30 hours a week but she would have to limit the amount of repetitive reaching and pushing and pulling that she does with her right arm as well as the repetitive bending with regards to her lower back.
She was considering increasing her work hours to full time work and I do think she would have to look at a different type of vocation in order to be able to work full time.
I expect she will have ongoing pain symptoms involving her neck, upper back, right shoulder and arm, lower back and also persistent headaches following injuries sustained in these accidents. She is most likely close to reaching the point of maximal medical improvement and it is unlikely that her pain symptoms will resolve completely over time.
[17] Dr. MacKean’s cross-examination elicited much of the same concessions as Dr. Vaughn. Dr. MacKean considers herself a sympathetic physician whose primary interest is the well-being of her patients. She relies on the frank disclosure of her patients, and much of her opinion is based on a patient’s subjective reporting. Under cross-examination it was not apparent that Dr. MacKean was aware of the full panoply of Ms. Nash’s other conditions.
[18] A Functional Capacity Evaluation Report was prepared by Paul Pakulak who is an Occupational Therapist and Certified Work/Functional Capacity Evaluator. The medical opinions of both Dr. Vaughn and Dr. MacKean considered the work of Mr. Pakulak. I was impressed with Mr. Pakulak’s application of the scientific method. Part of that seeks to assess the reliability of what the patient reports to him, and is referenced under the heading “Reliability of Symptomatic and Disability Reports”.
[19] To assess reliability he performed Distraction Tests and Waddell Signs Tests. Ms. Nash also completed Perceived Capacity Questionnaires and provided verbal reports of her capacity. The results of the tests and answers to those questionnaires and reports “were consistent with physical findings”, which were that Ms. Nash’s “…overall ability to compete for work in an open job market is significantly reduced due to her ongoing injuries and resultant physical limitations”.
[20] Both Mr. Pakulak and Dr. MacKean were of the view that Ms. Nash could continue with her current employment but with limitations.
[21] Mr. Pakulak was of the view that Ms. Nash demonstrated the capacity “…to complete this work on a part time basis at a sustainable pace” although her overall ability to compete for work in the open market was “significantly reduced”. Mr. Pakulak said “…it is my opinion that she did demonstrate the capacity to complete this work on a part time basis at a sustainable rate” although overall “she was not well suited to this work”.
[22] Dr. MacKean was of the view that Ms. Nash could continue in her existing “job position up to 25-30 hours a week” but with qualifications. The qualifications were that “she would have to limit the amount of repetitive reaching and pushing and pulling that she does with her right arm as well as the repetitive bending with regards to her lower back”.
[23] There is no serious issue regarding causation, although the defendants did emphasize the subjective nature of the complaints, and that one should be mindful of the cautions of McEachern C.J.S.C. (as he then was) in Price v. Kostryba (1982), 70 B.C.L.R 397 (S.C.) and Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.) at para. 18, namely, 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 period”. See also Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) at paras. 8 and 15.
[24] Here, as in the decision of Masuhara J. in Chu v. Ponsford, 2008 BCSC 429, the general impression of the medical witnesses was that Ms. Nash was forthright and did not exaggerate her symptoms. Although the defence argues that Ms. Nash was not honest in her dealings with employment insurance, and her evidence differed in places from that of Dr. Vaughn and Mr. Pakulak, my overall impression is that, while she tended to focus on her medical issues (perhaps to a fault), she accurately described her perception of their impact on her.
[25] I accept, however, that injury to the left shoulder has not been proven to have been caused by the collisions, as this is not referenced in the medical evidence and is only rarely mentioned in the clinical notes and complaints. I also accept that Ms. Nash is in the unfortunate circumstance where she has a variety of unrelated medical conditions that have impacted and will impact her regardless of the motor vehicle accidents.
[26] The parties are far apart on their quantifications of general damages. Ms. Nash cites several cases including the decision of the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, noting that Court’s helpful review of some of the factors for consideration in the quantification of non-pecuniary damages (at para. 46):
[46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably be subsumed in the above list:
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).
[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).
[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life.
[29] The plaintiff referred to Neumann v. Eskoy, 2010 BCSC 1275, Van Den Hemel v. Kugathasan, 2010 BCSC 1264, and Durand v. Bolt, 2007 BCSC 480, arguing that an award of $80,000 is appropriate. The defendants cited Ryan v. Klakowich, 2011 BCSC 835, Bourdin v. Ridenour, 2009 BCSC 1295, Fata v. Heinonen, 2010 BCSC 385, and Chu v. Ponsford, 2008 BCSC 429, arguing that an award in the $25,000 range is more appropriate.
[30] Perhaps not surprisingly, I find that a proper assessment of the plaintiff’s non-pecuniary loss falls between those referenced by the plaintiff and defendant.
[31] In Neumann, the plaintiff had a long history of exemplary full-time employment. Rather than sacrifice the family’s economic security, the plaintiff endured painful full-time employment which had debilitating consequences on non-work related activities. Pre-existing conditions played no role in the injury sequelae.
[32] A similar situation existed in Van Den Hemel. The consequences of the injuries there were more severe: worsening pre-existing depression, development of debilitating chronic pain, loss of mobility, sleep disturbance, fatigue, emotional and cognitive distress, loss of capacity and a lower overall pain threshold.
[33] In Durand, the plaintiff was diagnosed with thoracic outlet syndrome, and underwent treatment by a rheumatologist, a specialist in vascular surgery and a specialist in physical and rehabilitative medicine. She underwent physiotherapy treatments and received a Botox injection that was unsuccessful and extremely painful. The plaintiff was found at para. 52 to suffer a “debilitating level of pain and suffering” and persisted in a work environment that she could only endure to attempt to become financially independent. She was found (at para. 58) to be “uncomfortable all the time, has nagging headaches and … her shoulder is always aching”.
[34] In my opinion these cases reflect more serious injuries and sequelae than those demonstrated in the case before me. On the other hand, two of the defendants’ cases reflect less serious injuries and consequences. For example, in Ryan there was one low-speed accident. The Court found that the plaintiff was inconsistent in important parts of her evidence and exaggerated the effect of her injuries. The major symptoms she said she experienced were not proven to be caused by the accident.
[35] In Bourdin, the Court awarded $22,500 in non-pecuniary damages taking into account that the plaintiff resisted entering a recommended gym program and persisted in contraindicated therapies, knowing they were not helpful.
[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.
[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.
[38] The parties are agreed that an appropriate net award for loss of income is $5,187.19, which accounts for the plaintiff’s income loss immediately following the accidents. I award that sum.
[39] The plaintiff argues that she should be awarded $80,000 for loss of a capital asset, that is, her ability to earn income in her chosen field of endeavor as a personal care aide. The defendants argue against any award.
[40] I have described the opinions of the physicians earlier, and note that they are somewhat at odds. The plaintiff did return to her position and earned approximately the same amount of income as she did pre-accident, but quit that employment in 2011. She was seeking more hours but the evidence shows that she only worked from 25-30 hours per week prior to the accident. She does not have an extensive work history.
[41] The plaintiff also has a variety of conditions that could affect her employment. At least one of those conditions, her diabetes, has directly affected her employment in the past, as it required hospitalization.
[42] The approach to such claims is well set out in the decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras. 25-32, which I summarize as follows:
(1) A plaintiff must first prove there is a real and substantial possibility of a future event leading to an income loss before the Court will embark on an assessment of the loss;
(2) A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation;
(3) A plaintiff may be able to prove that there is a substantial possibility of a future income loss despite having returned to his or her employment;
(4) An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss;
(5) It is not the loss of earnings but rather the loss of earning capacity for which compensation must be made;
(6) If the plaintiff discharges the burden of proof, then there must be quantification of that loss;
(7) Two available methods of quantifying the loss are (a) an earnings approach or (b) a capital asset approach;
(8) An earnings approach will be more useful when the loss is more easily measurable;
(9) The capital asset approach will be more useful when the loss is not easily measurable.
[43] In my opinion the plaintiff has met the initial burden of proof. That is, she has shown that, based on her evidence and the medical opinions, there is a real and substantial possibility of a future event leading to an income loss. That is, the plaintiff is prevented from embarking on full-time employment as a personal care aide, and like employment. Although she had not achieved the status of full-time employment before for a variety of reasons, and no actual income loss is shown, she is now precluded from it.
[44] The plaintiff voluntarily left her employment in 2011. There is some evidence that she could have been accommodated if she had requested accommodation, although she still would, in my opinion, have been required to work in pain. She is considering retraining. One option is to retrain in a former occupation. That would require some months’ advance notice, attendance at courses, and accommodation for her young son. I do not think that once retraining is achieved there would be any significant ongoing income loss, as the plaintiff was employed in an entry-level position in her former occupation, earning $14 per hour.
[45] In my view the best way to account for the loss in these circumstances is to use the earnings approach to provide for an amount equivalent to what it would cost her in regular employment income over a period of training and job-seeking, and associated costs. Any amount awarded under this head is subject to contingencies, which include the plaintiff’s health from other known and unrelated conditions. Doing the best I can with the evidence I have, I set damages under this head at $25,000.
[46] Where work is done by others that because of its nature or extent would not normally be done by others without payment, there may be a claim for damages. In this case Ms. Nash required assistance beyond that normally expected from family, although in my view it is a lesser amount than that claimed. It is also acknowledged that she is able to do this work presently, and thus the pain associated with doing the occasional more difficult tasks is compensated for in non-pecuniary damages.
[47] Certainly she was initially impaired in doing these heavier tasks. There is no evidence, however that she is actually out-of-pocket. Nor was there any reliable estimate of the hours required and worked by others assisting her over a graduated period. In the circumstances, accepting that there is some loss, I accept the defendants’ estimate of an appropriate award being $1,500 under this head.
[48] There are claims made for ongoing physiotherapy for flare ups in Ms. Nash’s condition. This is the recommendation of her family physician. This is not the recommendation of Dr. MacKean, or her physiotherapist. On the other hand, stretching and exercise is recommended.
[49] I would allow $1,500 under this head as an amount for gym or yoga membership for a period of years.
[50] Special damages are claimed in the amount of $2,845.33. This includes two sums with which the defendants take issue. I accept that some assistance from the Campbell & Fairweather group is appropriate but there are other causes, so I would allow for half the amount claimed. As I have found that the left shoulder injury is not compensable, any physiotherapy associated with that is disallowed; however I would allow for physiotherapy up until the date of Dr. MacKean’s report and recommendation against physiotherapy. If the parties are unable to calculate the precise amount awarded here they are liberty to apply to the Court, however, I am confident that they can do this without requiring any further court intervention.
[51] The damages of the plaintiff are assessed as follows:
(1) Non-pecuniary damages in the amount of $45,000;
(2) Loss of Capital Asset in the amount of $25,000;
(3) Loss of Housekeeping Capacity in the amount of $1,500;
(4) Cost of Future Care in the amount of $1,500; and
(5) Special Damages calculated as above noted.
[52] Unless there is something I am not aware of, costs should follow the event at Scale B.