IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Gulbrandsen v. Mohr, |
| 2012 BCSC 1869 |
Date: 20121212
Docket: M133757
Registry:
New Westminster
Between:
Tove Gulbrandsen
Plaintiff
And
Blake Mohr and
Albert Boyd
Defendants
Before:
The Honourable Mr. Justice Affleck
Reasons for Judgment
Counsel for the Plaintiff: | R. Pici |
Counsel for the Defendant, Mohr: | C. C. Godwin |
Place and Date of Trial/Hearing: | New Westminster, B.C. November 6-8, 2012 |
Place and Date of Judgment: | New Westminster, B.C. December 12, 2012 |
[1]
The plaintiff was injured on January 2, 2010 when riding as a passenger
in a car. Liability is admitted on behalf of the defendant, Blake Mohr and the
action discontinued against Albert Boyd. The trial was for the purpose of assessing
damages. The plaintiffs injuries of significance where to her upper back. She
also experienced dizziness which Dr. Stanley Mah, an ear, nose and throat
specialist, described as post-traumatic vestibular dysfunction. This appears
to have resolved within weeks of the accident. She continues to complain of
pain in her upper back.
[2]
For the plaintiff I heard the evidence of the plaintiff herself, a work
colleague Heather Brown and two physiatrists, Dr. Lisa Caillier and Dr. Cecil
Hershler. The defendant called one witness, Dr. Olli Sovio an orthopedic
surgeon.
[3]
The plaintiff attended on Dr. Steven Milne a GP, beginning in August
2005 and he had treated her over several months in 2008 and into 2009 for
occasional complaints of back pain. I do not attribute significance, when
assessing damages, to those earlier events.
[4]
The plaintiff also saw Dr. Lois Fetaz both before and after the accident
of January 2010 in relation to a number of matters of no relevance to this
lawsuit except for injuries received in an alleged assault by a boyfriend after
which the plaintiff complained of a number of injuries including those to her
right clavicle, right shoulder and back. It is difficult to know if those
injuries had any lingering effects at the time of the car accident but I am inclined
to believe that they did not. Dr. Fetaz did not give evidence.
[5]
The plaintiff complains that Dr. Fetaz did not properly assess her after
the accident nor provide useful treatment. The plaintiff requested Dr. Fetaz provide
a certificate to the B.C. Liquor Distribution Branch, by whom the plaintiff
was, and remains, employed, to excuse the plaintiff from work. Dr. Fetaz signed
the certificate in which she ticked a box indicating her opinion that the
plaintiff was unable to work due to illness or injury and also wrote on the
form subjective report she is unable to work. There was considerable evidence
at the trial about the plaintiffs dissatisfaction with Dr. Fetaz. The
plaintiff changed to Dr. Lili Nasseri. In cross-examination the plaintiff was
asked to explain a note of Dr. Nasseri which reads Dr. Fetaz refuses to see
pt. anymore: ugly situ. This note is consistent with the plaintiffs evidence about
the difficult relationship between herself and Dr. Fetaz. Dr. Nasseri recommended
physiotherapy and massage therapy for the plaintiff. Dr. Nasseri did not give
evidence. The statements of opinion by Dr. Fetaz and Dr. Nasseri are inadmissible
and I have ignored them.
[6]
The plaintiff did not remain in Dr. Nasseris care and in the early
months of 2010 began to see Dr. Eileen Cochien another GP. Dr. Cochien did not
give evidence.
[7]
The plaintiff also saw Dr. John Street an orthopedic surgeon in relation
to her injuries. Dr. Street did not give evidence.
[8]
The plaintiffs credibility was vigorously attacked at the trial. It was
argued her evidence was vague and defensive and that she exaggerated the
effects of her injuries. Based on her failure to call the treating doctors I am
asked to draw an inference adverse to the plaintiff on her credibility
generally and in particular on the nature and extent of her injuries.
[9]
The claim advanced is for general damages for pain and suffering and
loss of enjoyment of life, income loss to the date of trial, lost capacity to
earn income in the future, the cost of housekeeping up to the date of trial and
in the future, cost of care in the future and special damages for out of pocket
expenses.
[10]
The plaintiffs main complaints are of what she characterized as excruciating
pain in her upper back which significantly disabled her over a number of weeks.
This pain she testified was at about the seventh thoracic vertebra. There was a
debate at the trial among the three experts who gave evidence on the apparent
source of the pain at T7. Dr. Hershler described a mild anterior compression
fracture of the T7 vertebral body. Dr. Caillier referred to mild wedging
found at the T7 vertebral body. She described this as an incidental finding
and likely not related to the MVA of January 2, 2010. Dr. Sovio found no
fracture of T7.
[11]
I am satisfied there was no fracture to T7. The plaintiff had pain but
its origin is in soft tissue. To reach this conclusion I do not need to draw an
adverse influence against the plaintiff for the failure to call the treating
doctors. I am inclined to accept the opinion of Dr. Caillier on whether there
was a T7 fracture. I have concluded that Dr. Hershlers opinion on the question
of whether there actually was a fracture may not diverge to any appreciable
extent to that of Dr. Caillier even though, unlike Dr. Caillier, he attributes
the pain at the T7 level to the accident of January 2010. There is little difference
in the opinions of Dr. Caillier, Dr. Hershler and Dr. Sovio on the questions of
whether the plaintiff suffered a fractured T7 vertebra in the accident.
Loss of Income
[12]
I accept the plaintiff was injured in the accident but I also accept the
submissions of the defendant that the plaintiff is not a trustworthy witness.
Her evidence about lost time at work was vague and equivocal. She acknowledged
she had little recollection and no records to establish when she was away from
work. She acknowledged in cross-examination that she had a pain diary but it
was not disclosed. She described her job as involving considerable physical
labour but nevertheless it appears she lost little actual time away from that
work. She lost a week in January 2010 and then returned for several weeks and
gradually began to work full time.
[13]
The plaintiff looked for a doctor willing to sign a certificate enabling
her to take time away from work. She had some difficulty doing so but did
persuade Dr. Fetaz to provide a certificate. It does not meet the test to be
received as opinion evidence and was not tendered as such. Dr. Cochien signed a
form for the Liquor Distribution Branch on March 23, 2010 giving her opinion that
the plaintiff could not carry out even sedentary physical activities but after
April 1, can do clerical duties
. This too is an opinion which is not
admissible. The plaintiff made no attempt to return to work on April 1, 2010.
Dr. Cochien signed another Liquor Distribution Branch document on April 12,
2010 saying the plaintiff could return to some specified sedentary physical activities.
This too is an inadmissible opinion. The plaintiff did not return to work at
that time.
[14]
My doubts about the plaintiffs veracity are increased by her evidence
about marijuana use. She makes a claim for the cost of medical marijuana of
about $100.00 per week but has provided no receipts for this alleged cost. She
testified that before the accident she often used marijuana recreationally
where as afterwards she used it only medicinally. I do not believe her. She has
been a marijuana user both before and after the accident. She has attempted to
employ this trial as a means to obtain damages to support her marijuana use.
[15]
The plaintiff returned on May 26, 2010 to her employment on a graduated
return to work program. She was back to work full time, although on light
duties, at some time in June 2010. Shortly thereafter she appears to have
returned to all her normal duties.
[16]
The plaintiff acknowledges she has had difficulties with her employer for
reasons unrelated to the accident. There have been a number of unauthorized
absences from work which have led to letters of reprimand. These incidents lend
support to the defendants submission that the court ought to be wary of the
plaintiffs testimony generally. She had not been honest with her employer and
I believe she has not been honest with the court.
[17]
I will comment on a further portion of the plaintiffs evidence about
use of marijuana which undermines my confidence in her credibility. The
plaintiff initially testified that before the accident of January 2010 she used
marijuana several times a week. The accident happened as she was leaving a
house where she had purchased marijuana. Even in her direct examination the
plaintiff, while first acknowledging frequent use of marijuana, moments later sought
to minimize it. In cross-examination she went further to downplay the extent of
its use. She gave evidence in chief that Dr. Cochien had prescribed medical
marijuana after the accident but in cross-examination, with great reluctance,
the plaintiff accepted that Dr. Cochien had signed a B.C. Compassion Club
Society form in which she placed a tick mark in the box opposite the words I
do not recommend the use of cannabis for the reasons stated below
. The reason
given is that marijuana is illegal. There is no evidence Dr. Cochien consented
to the use of medical marijuana by the plaintiff. I have no basis on which to
find the plaintiff has a prescription enabling her to use marijuana legally.
Non-Pecuniary General Damages
[18]
I have been referred to numerous cases in which judges of this court
have assessed non-pecuniary damages for pain and suffering in circumstances
which are said to be analogous to those of the plaintiff. The plaintiff relies
on cases under this head of damages in which the award was upwards of $60,000.
In my view that sum is not justified in this case. The plaintiff had a mild to
moderate soft tissue injury to her upper back with episodes of dizziness. There
were few objective signs of injury. I am mindful of Buttar v. Brennan,
2012 BCSC 531 in which Mr. Justice Abrioux made the following observations at
paragraph 24 of his reasons:
24 In a case such as this where there are
little, if any, objective findings except some minor degenerative changes in
the neck, back and knee, the following should be taken into account by the
trier of fact:
*
the assessment of damages in a moderate or moderately severe soft
tissue injury is always difficult because the plaintiffs are usually genuine,
decent people who honestly try to be as objective and factual as they can.
Unfortunately every injured person has a different understanding of his own
complaints and injuries, and it falls to judges to translate injuries to
damages Price v. Kostryba (1982), 70 B.C.L.R. 397 at 397 (S.C.);
*
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 (Price at
399);
*
an injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true
reflections of a continuing injury (Price at 399);
*
the doctor’s function is to take the patient’s complaints at face
value and offer an opinion based on them. It is for the court to assess
credibility. If there is a medical or other reason for the doctor to suspect
the plaintiff’s complaints are not genuine, are inconsistent with the clinical
picture or are inconsistent with the known course of such an injury, the court
must be told of that. But it is not the doctor’s job to conduct an
investigation beyond the confines of the examining room Edmondson v. Payer,
2011 BCSC 118 at para. 77, aff’d 2012 BCCA 114;
*
in the absence of objective signs of injury, the court’s reliance
on the medical profession must proceed from the facts it finds, and must seek
congruence between those facts and the advice offered by the medical witnesses
as to the possible medical consequences and the potential duration of the
injuries Fan (Guardian ad litem of) v. Chana, 2009 BCSC
1127 at para. 73;
* in
a case of this kind care must be taken in reaching conclusions about injury
alleged to have continued long past the expected resolution. The task of the
court is to assess the assertion in light of the surrounding circumstances
including the medical evidence. The question is whether that evidence supported
the plaintiff’s assertion and, if not, whether a sound explanation for
discounting it was given Tai v. De Busscher, 2007 BCCA 371 at para. 41.
25 In light of the above, an assessment of the
plaintiff’s credibility is critical:
* The
test must reasonably subject his story to an examination of its consistency
with the probabilities which surround the currently existing conditions. In
short, the real test of the truth of the story of a witness in such a case must
be its harmony with the preponderance of the probabilities which a practical
and informed person would readily recognize as reasonable in that place and in
those conditions.
[19]
At paragraph 37 Abrioux J. assessed non-pecuniary damages in the case
before him at $60,000 after making the following findings at paragraph 34:
34 I have found
that the plaintiff was a hard-working individual. I have also concluded he has
made a greater recovery from his injuries than he may believe or say to be the
case. He is left, however, with an ongoing low back condition which affects his
life from a functional perspective to a greater degree than was the case prior
to the Accident. He also has a minor yet permanent ongoing injury to his right
knee which was entirely caused by the Accident.
[20]
Taking into account the plaintiffs injuries were much less serious than
those of assessed by Abrioux J. I assess the plaintiffs non-pecuniary damages
at $25,000.
[21]
Past income loss cannot be calculated. I have been given no useful
information from the plaintiffs employer nor was the plaintiffs viva voce
evidence the least satisfactory of this issue. Doing the best I can and with
little confidence in the plaintiffs candor nor confident that she took
reasonable steps to mitigate her loss I award her one third of all income loss
it is agreed that she suffered after the accident. That number is said to be
$6,200.29. The plaintiff is entitled to one third of that sum.
Loss of Earning Capacity
[22]
There is no basis for an award of damages for lossed earning capacity. I
have been given no specific evidence to support such an award and none of the
evidence taken as a whole can demonstrate a real and substantial possibility of
any future event attributable to the misconduct of the defendant leading into
an income loss.
Future Care
[23]
None of the medical evidence supports a future care damage award.
Special Damages
[24]
The defendant accepts the plaintiff is entitled to recover $694 in
expenses paid to Dr. Van Der Mark a chiropractor, CBI physiotherapist expanses
of $205, Coast Therapeutic and Sports Massage expenses of $429.45 and the cost
of medical notes for her employer of $125.The plaintiff claims $1,380 for such
notes. No evidence has been presented to support that amount. I award $200. The
plaintiff claims $100 for mileage which I award. The plaintiff also claims a
towing fee of $218 which cannot be recovered in this action.
[25]
The plaintiff has a substantial special damage claim of $3,075 for the
cost of treatments given to her by Dr. Steven Tyers who describes himself on
his bill to the plaintiff as follows:
1. Steven
Tyers is a private health care consultant and provider in British Columbia.
Credentials are available upon request. Dr. Tyers is a not a member of the
Chiropractic College or Association of B.C.
[26]
Whatever Mr. Tyers credentials may be they were not put in evidence. I
know of no medical justification for the plaintiff to have been treated by Mr.
Tyers. Reasonably incurred expenses are recoverable but this claim does not
fall within that category.
[27]
The damages I assess are as follows:
1. Non
Pecuniary Damages $ 25,000
2. Past
Income Loss $ 2,066
3. Special
Damages $1,084.45
TOTAL $28,150.45
[28]
The parties may speak to costs if necessary.
Affleck
J.