IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20100401

Docket:
M080654

Registry: Vancouver

Between:

Murphy
Costello

Plaintiff

And

Farida
Begum Rafique and Genesis Rafique

Defendants

Before: The Honourable Mr. Justice Melnick

Reasons for Judgment

[1]            
Mr. Murphy Costello (“Mr. Costello”)
was injured in a motor vehicle accident on October 26, 2006. Liability is
admitted by the defendants. At issue is the quantum of damages owed with
respect to the extent of Mr. Costello’s injuries from the relatively minor
rear-end collision. A complication is that the accident took place about three
months after Mr. Costello had back surgery.

I.        Background

[2]            
Mr. Costello is 62 years of age, a
successful realtor in Vancouver with a wife and two adult children. He has
worked as a realtor for 26 years, almost entirely on his own although
associated with a real estate company. Mr. Costello has built his business
with a “hands-on” style providing attention to detail and good service. That style
of business has meant providing a lot of time and energy for his clients’ needs.
It has meant being active within a broad social network and providing extensive
volunteer service. Mr. Costello’s efforts have paid off financially.

[3]            
Over the past 20 years, Mr. Costello has
experienced back, and more recently, leg problems. In 1972, he had surgery
resulting in the fusion of the L5-S1 vertebrae. That surgery required revision
the following year.

[4]            
However, the nature of his work (in and out of
cars, climbing stairs, moving signs, standing at open houses) and his
involvement in recreational sports (basketball, squash, tennis, golf)
eventually led him into a routine of passive therapies for his developing back
and leg pains (chiropractic, physiotherapy, massage therapy). This “maintenance”
type of therapy increased after Mr. Costello hurt his back while on a golf
trip to Phoenix, Arizona in 2004; an exercise trainer injured Mr. Costello’s
leg which created an increasing level of back pain. This was complicated by the
development of plantar fasciitis in one heel and leg.

[5]            
Eventually Mr. Costello consulted with his
family doctor, Dr. Geoffrey Edwards, who referred him to orthopaedic
surgeon Dr. Marcel Dvorak (“Dr. Dvorak”) in 2006. Mr. Costello
reported to Dr. Dvorak that he had primarily back pain with leg weakness.
Dr. Dvorak diagnosed his problem to be a degenerative change above the
level of the fusion in Mr. Costello’s back called spinal stenosis. This is
a condition in which the ligaments in the spine are thickened with disc bulging
or protrusions resulting in a narrowing of the spinal canal and pressure on the
nerves within it. Thus, on July 28, 2006, Dr. Dvorak carried out a
decompressive laminectomy in which bony and ligamentous elements were removed
from the affected area of Mr. Costello’s spine. He next saw Mr. Costello
for a follow-up visit on August 29, 2006, at which time Mr. Costello
reported that he then had essentially complete relief of his back and leg
symptoms with some mild back discomfort while sitting (which Dr. Dvorak
attributed to the ongoing healing process). Dr. Dvorak did not see Mr. Costello
again.

[6]            
On October 26, 2006, the vehicle Mr. Costello
was driving was struck from behind by a vehicle driven by Mr. Genesis Rafique.
The collision resulted in minor damages to both vehicles. Mr. Costello had
stopped his car behind another motorist who in turn had stopped to allow two
pedestrians to cross the street. At the moment of impact, Mr. Costello had his
head turned to the side while watching the pedestrians. After the accident, Mr.
Costello was in no particular pain although a bit shaken. He said that his back
started to hurt two to three days later.

[7]            
Mr. Costello reported that, up until the
time of the accident, his back problems were, for all intents and purposes,
behind him although he had not yet resumed playing golf and continued to receive
part-time assistance at work (which he had arranged in anticipation of a period
of partial disability following the surgery).

[8]            
It is the position of Mr. Costello that the
soft tissue injuries resulting from the motor vehicle accident afftected his
newly rehabilitated back so that he once again suffers from back pain as well
as leg pain. Although he has resumed playing golf, he now plays about 20 times
a year (some of which are only nine holes) rather than the about 60 games he normally
played (until 2004 when his back problems intensified). He says that the apparent
resolution of his problems by the 2006 surgery should have placed him in the
position of being able to resume a 60 game year and the relatively pain-free
ability to resume a fully independent work schedule without the need of an
assistant. Today he can do neither. He attributes this to the ongoing effect of
the soft tissue injuries from the accident.

[9]            
In addition to not being able to resume his
desired golfing schedule, Mr. Costello says that he has a much decreased
level of stamina for work and other life activities, has had to continue to
engage a realtor-assistant with the negative impact that has and will have on
his income and capacity to earn income, and that his overall enjoyment of life
is much diminished. His wife, Mrs. Cheryl Costello, confirmed his loss of
energy and of his enthusiasm for life.

[10]        
Since the accident, Mr. Costello has made
extensive use of passive therapies which he claims he needs to function as well
as he is able. He has claimed for the cost of those therapies as well as loss
of income, loss of earning capacity and loss of enjoyment of life.

II.       Discussion

1.       Medical Opinions

[11]        
Dr. N.K. Reebye (“Dr. Reebye”), a
physiatrist, examined Mr. Costello on December 8, 2009. It was his opinion
that the symptoms Mr. Costello initially experienced after the accident
were due to the soft tissue injuries to Mr. Costello’s lower back as a
result of acceleration/deceleration forces to which his body was subjected in
the accident. It was his opinion that these “new symptoms” were a direct result
of injuries sustained in the accident. Dr. Reebye attributed Mr. Costello’s
inability to participate in leisure activities to a combination of pre-existing
conditions as well as the soft tissue injuries from the accident. In Dr.
Reebye’s opinion, the present symptoms of plantar fasciitis are not related to
the accident, nor did he anticipate any permanent physical impairment to result
from the injuries sustained in the accident.

[12]        
Interestingly, Dr. Reebye was of the
opinion that the injuries from the accident were not severe enough to aggravate
Mr. Costello’s pre-existing conditions. However, Dr. Reebye candidly
noted in his report of January 12, 2010, that at the time of the accident: “His
surgery was quite recent and it is difficult to state if he would have remained
symptom-free absent the motor vehicle accident of October 26, 2006.” Dr. Reebye
added: “He has significant changes in his lower back due to his previous back
conditions which are a potential source for back pain and stiffness at present
and in the future.”

[13]        
Dr. Reebye stated that no specific
treatments are required at present. He recommended discontinuance of passive modalities
of treatment. In giving evidence at trial, Dr. Reebye hesitantly stated
that the extent of the passive therapies to date had likely been acceptable but
should not continue.

[14]        
Dr. Dvorak, having only had the self-report
of Mr. Costello of August 29, 2006, that he was functioning well, assumed
that this was indeed the case. Dr. Dvorak had no reason to believe that,
after that point, Mr. Costello’s recovery would go any way other than very
well. Dr. Dvorak had recommended a course of physiotherapy, although I did
not get the impression from his report (also dated January 12, 2010) that what
he had in mind was three years of multi-disciplinary passive therapies. That
said, it was Dr. Dvorak’s opinion that Mr. Costello could have
expected a full recovery from his pre-operative symptoms (of difficulty with
walking and standing) were it not for the motor vehicle accident. That is, Mr. Costello
would have experienced near complete resolution of his pre-surgery symptoms of
claudication. Claudication is a condition where the longer a person stands or
the farther a person walks the more severe their leg and back pain get.

[15]        
Although Dr. Reebye deemed diagnostic
imaging of Mr. Costello unnecessary for his diagnosis, in the absence of
such imaging Dr. Dvorak was unable to offer any specific evidence other
than relying on what he assumed would be the course of Mr. Costello’s
recovery based the August 29, 2006, self-report. Indeed, Dr. Paul Bishop,
an expert in the diagnosis, prognosis and treatment of spinal injuries,
suggested that he was basically unable to properly diagnosis Mr. Costello’s
current condition (as at the date of his report on November 6, 2009) in the
absence of such diagnostic imaging.

2.       Analysis

[16]        
It may well be that Mr. Costello’s
continuing back pain is the result of soft tissue injuries resulting from the
accident. However, on the balance of probabilities, Mr. Costello has failed
to persuade me that this is the case. In my view, it is significant that no
diagnostic imaging was done to assist in providing evidence that Mr. Costello’s
pre-2006 back problems have not re-asserted themselves in some form or to
eliminate the possibility that some problem has developed from that surgery. To
me it is almost beyond imagining that Mr. Costello would have gone on for
over three years, relying on a constellation of passive therapies, without having
those possibilities investigated with diagnostic imaging. This is particularly
so given that he was so proactive in pursuing an MRI at his own expense prior
to the 2006 surgery.

[17]        
Dr. Reebye’s carefully worded report really
says it all:  “[t]he soft tissue injuries were responsible for his symptoms and
limitation soon after the accident” [emphasis added] and, “[t]he
injuries sustained were not severe enough to aggravate his pre-existing
conditions.” I note that it is possible that Dr. Reebye is wrong. It could
be that the whiplash from the accident did affect Mr. Costello’s spine in a way
that affected the area of the surgery. But without a full and proper medical
investigation with the aid of diagnostic imaging, I have no way of knowing that.
The body of evidence that has been put before me on behalf of Mr. Costello,
who bears the burden of proving his case on the balance of probabilities, just
does not do that. The evidence neither convinces me that the soft tissue
injuries from this minor rear-end collision have independently resulted in the
debilitating pain and discomfort I have no doubt he now suffers, or that those
injuries in some way affected the area of his spine which was the subject of
the 2006 surgery or in some way caused his pre-existing condition to re-assert
itself.

[18]        
I am convinced on a balance of probabilities
that Mr. Costello did, indeed, suffer soft tissue injuries in the motor
vehicle accident which caused him pain and discomfort for a period of time that
cannot be quantified precisely but, before the time of trial, would have been
resolved. Dr. Reebye’s suggestion in cross-examination that Mr. Costello
could experience effects of the accident for five to ten years is implausible
and at odds with his report. As noted above, I have no doubt that Mr. Costello
is suffering back pain but I am not satisfied, to the standard required on a
civil trial, that his current problems result from the injuries sustained in
the motor vehicle accident. I would hope that Mr. Costello will now move
quickly to have a medical investigation done, with the necessary diagnostic
imaging   I also hope that Mr. Costello will move immediately to wean
himself off the many passive therapies upon which he has come to depend and
which Dr. Reebye advises be discontinued. I accept that he is doing
himself no favour by continuing with them. I am certainly not convinced that
such therapies were required for over three years after the accident.

3.       Quantum of Damages

i.        Non-Pecuniary

[19]        
Counsel for Mr. Costello suggests
non-pecuniary damages in the area of $65,000. Counsel for the defendants says
that the range is more appropriately about $12,000 to $15,000.

[20]        
Counsel for Mr. Costello relies on cases
such as Mejia v. Sakic, [1998] B.C.J. No 414 ($45,000), Brock v. King,
2009 BCSC 1179 ($50,000) and Cheung v. MacDonald, 2004 BCSC 222
($60,000) to support Mr. Costello’s position on damages. Counsel for the
defendants relies on a number of cases, three of which are Tuchscherer v.
McMaster, 2001 BCSC 1340 ($10,000), Alizada v. Gill, 2008 BCSC 636
($16,000) and Lubick v. Mei, 2008 BCSC 555 ($18,000).

[21]        
The cases suggested by counsel for Mr. Costello
as comparables are for more serious situations that would have been of more
relevance had I found that Mr. Costello’s ongoing problems were related to
the injuries he suffered in the accident. Since I have found otherwise, the
range of cases suggested by the defence is more relevant. That said, I find
that, overall, the loss to Mr. Costello of the period of relief he enjoyed
following surgery is deserving of compensation somewhat beyond the range
suggested by the defence. He undoubtedly had difficulty with tasks related to
his work, such of moving signs, conducting open houses and getting in and out
of his vehicle that he would not have had so soon, or at least to the same
extent, for a period of time following the accident. While he had not yet tried
to return to golf after his July 2006 surgery, it is reasonable to conclude
that his return to play may well have been delayed by the injuries he sustained
in the accident. Overall, however, I cannot say that his present ability to
play only about one-third of the golf he played in 2004 remains due to the
injuries sustained in the accident. Finally, he has had difficulty taking part
in social and volunteer events, in part at least due to the soft tissue
injuries.

[22]        
Overall I would assess Mr. Costello’s
entitlement to non-pecuniary damages at $28,000.

ii.       Past Income Loss

[23]        
Mr. Costello claims that, since the
accident, he has had to pay $25,500 for the assistance of other realtors in
running open houses and showing homes to prospective buyers. This includes a 50%
commission split on six sales with a Ms. Sandra Ens (“Ms. Ens”) as well as
help provided by both Ms. Ens and a Ms. Lisa Duthie. The defence
contends that Mr. Costello would have likely hired that help anyway as he
was extremely busy in his real estate business following the accident, earning
a very high level of income. However, I am satisfied that Mr. Costello is
the type of individual who would, if in good physical health, have probably continued
to work alone, without the aid of an assistant. That said, I also find that
part of the reason he needed help was because of the bothersome pain from his
plantar fasciitis which, as Dr. Reebye noted, is unconnected to the
accident. In all the circumstances, I would attribute half of the past income
loss to the injuries Mr. Costello suffered in the accident, or $12,250.

iii.       Loss
of Earning Capacity

[24]        
Given my conclusion that Mr. Costello has
not proven that his ongoing physical pain and disability is due to the soft
tissue injuries he suffered in the accident, I make no award for loss of
earning capacity. He may not have the energy to work as hard as he did before,
but that cannot be attributed to the injury suffered in the accident and is not
the responsibility of the defendants. The extent to which he pays Ms. Ens
(or others in the future) a percentage of his commissions for her assistance is
therefore not recoverable.

iv.      Special Damages

[25]        
Mr. Costello claims for $14,290 in special
damages: $13,750 for physiotherapy and $540 for massage therapy. Counsel for
the defendants submits that a reasonable amount for which the defendants should
bear responsibility is about $1,000 (20 x $50).

[26]        
Dr. Reebye suggested that Mr. Costello
should discontinue passive therapy but noted that the level of therapy he had
had to the time of trial was probably appropriate. It is hard to reconcile that
position of Dr. Reebye with the thrust of his report and his other
evidence at trial. Dr. Reebye gave me the impression that he is clearly of
the school of thought that while passive therapy has its place, active exercise
is far superior to help one recover from an injury. And by “active exercise” I
did not take it that he meant an occasional round of golf.

[27]        
I have no doubt that Mr. Costello has
relied excessively on the relief he believes he experiences from passive
therapy. To date he has apparently not been dissuaded from that belief by any member
of the medical profession. Because he has relied for years on such passive
therapy he may have just continued with his past practice. That said, there is
a limit to which a defendant should be responsible for treatments where the
court is not satisfied they were medically required, even if no one suggested
otherwise. A defendant will not be liable for excessive or unnecessary
treatments. In all the circumstances, I award Mr. Costello $5,000 for
compensation for physiotherapy and massage therapy. In my view this amount,
approximately 35% of his claim, is reasonable in the face of the nature and
extent of his injuries from the motor vehicle accident and likely even somewhat
generous.

III.       Conclusion

[28]        
In summary, I award Mr. Costello the
following damages:

[29]        
Unless there is a reason to address me
concerning costs, I award Mr. Costello his costs on Scale B.

“Melnick J.”