IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Healey v. Chung,

 

2014 BCSC 429

Date: 20140314

Docket: M98684

Registry:
New Westminster

Between:

Douglas Healey

Plaintiff

And

Sun Im Sunnie
Chung also

known as Sun I.
Chung

Defendant

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

Counsel for Plaintiff:

T. Spraggs

C. Clearly

K. Moore

Counsel for Defendant:

J. Walsh

Place and Date of Trial:

New Westminster, B.C.

February 4 – 8, 2013

February 12 – 15,
2013

August 21 – 23, 2013

Place and Date of Judgment:

New Westminster, B.C.

March 14, 2014


 

I.                
Introduction

[1]            
The plaintiff seeks damages – loss of past and future earning capacity;
cost of future care; special damages; and loss of housekeeping capacity – for a
pedestrian-vehicle accident that occurred on September 5, 2005.

[2]            
The defendant admitted liability for the accident. The issue to be
decided is the appropriate quantum of damages to be awarded for the plaintiff’s
injuries. As will be seen in the following reasons. I reject the bulk of the
plaintiff’s evidence regarding the nature of the accident and the injuries he
claims to have sustained. He was not a credible witness. The plaintiff’s almost
complete lack of credibility made determining what actual injuries occurred
during the pedestrian-vehicle accident quite complicated.

[3]            
Many profound differences exist between the facts of the accident as I
found them and the factual assumptions that many of the medical and other
experts who have proffered opinions made (these differences seriously question the
evidentiary value of those reports).

[4]            
I will review these differences in these reasons, and I will address how
much value I placed on those reports according to existing law.

II.              
the accident

[5]            
At the time of the accident, Mr. Healey had delivered pet “Geckos” to a
client and was returning home by public transit. He was walking southbound in a
marked crosswalk across 41st Avenue at Clarendon Street. The green light was in
his favour.

[6]            
Mr. Healey was wearing a dark blue vest, blue pants and a dark coloured
sweater.

[7]            
Mr. Eng, who was a driver in the accident’s immediate vicinity, was the sole
witness who saw the accident, and he testified at trial. He said Mr. Healey
recognized he was going to be struck by a vehicle because Mr. Healey turned
toward the vehicle putting both hands on the vehicle’s hood and pushing away
from the vehicle.

[8]            
According to Mr. Eng, Mr. Healey’s body ended up on the road by the
driver’s side door of Mr. Eng’s vehicle.

[9]            
Mr. Eng said the Chung vehicle was not speeding but did not stop for Mr.
Healey. He said Mr. Healey “went maybe five to eight feet in the air” and
landed about 10 feet from where he was struck.

[10]        
According to Mr. Eng, the passenger in Mr. Eng’s vehicle called 911 for
emergency assistance, and the emergency health services and police staff
arrived quickly.

[11]        
Mr. Eng noted it was dark and raining when the accident occurred. But the
intersection, where the accident occurred, Clarendon Street and 41st Avenue,
was well-lit.

[12]        
Mr. Eng was an independent witness and presented his evidence in a
forthright and credible manner. I accept Mr. Eng’s version of the events of the
accident as correct.

[13]        
The defendant, Ms. Chung, was stopped at the red light facing southbound
Clarendon Street. She began to drive south when the light changed to green and attempted
to turn left onto 41st Avenue from Clarendon Street. Her vehicle contacted Mr. Healey;
he pushed away her vehicle, and his body was directed in an easterly direction.
There was no evidence of the damage, if any, that was caused to Ms. Chung’s
vehicle.

[14]        
Mr. Healey did not lose consciousness in the street and indicated he was
speaking to various persons including police and emergency health services.
(Mr. Healey told at least one witness, Dr. Posen, that he was unconscious because
of the accident. That is one of the many conflicts in Mr. Healey’s evidence
which detracted from his credibility.)

[15]        
An ambulance took Mr. Healey to the VGH emergency department. The hospital
records state he had no loss of consciousness; in fact, his only complaint of
pain at the time was in the meaty part of his right thumb. He reported no head,
chest or abdominal pain. He was oriented in three dimensions, and x-rays of his
chest, pelvis, cervical spine and right hand and wrist were all normal. He did
not suffer any broken bones or dislocated joints. He had no noted lacerations
or abrasions. The final diagnosis recorded in the hospital records was blunt
trauma and minor contusions.

[16]        
After examination and medical testing, the hospital discharged Mr. Healey
at 1:30 a.m. He was not kept in hospital overnight. Mr. Healey’s mother picked him
up from the hospital around 3 a.m.

[17]        
Mr. Healey used far more dramatic terms than Mr. Eng to describe the
accident – especially to medical practitioners.

[18]        
Dr. Susan Kuo, Mr. Healey’s family doctor, called by Mr. Healey as an
expert witness, stated in her June 19, 2006 report that:

He has no recollection of the
events of the accident after he was struck by the motor vehicle. However,
apparently eye witnesses state that the car that struck him was attempting to
turn onto 41st, and after that vehicle struck him, it caused Douglas
to fly into the air 10 feet as well as forward 30-40 feet before he fell down.

[19]        
Again, in her August 12, 2009 report, Dr. Kuo stated: “A witness at the
scene of the accident, according to the patient, recalled that when Douglas was
struck by the vehicle the impact caused him to be lifted in the air ten feet
and to be moved 30-40 feet.”

[20]        
No such eyewitness evidence was called. The alleged statements of eye
witnesses to the accident contained in Dr. Kuo’s reports are hearsay or double
hearsay. The statement made by an alleged eyewitness does not meet the tests of
reliability or necessity used in the principled approach to admitting hearsay
statements: R. v. Khan, [1990] 2 S.C.R. 531. Consequently, such
statements are inadmissible.

[21]        
Dr. Cecil Herschler was also called as an expert for the plaintiff. Apparently
Mr. Healey told Dr. Herschler that “he was later told that he had spun
approximately 15 feet up in the air and about 40 feet forward.” Again, this
description is wholly different to Mr. Eng’s description.

[22]        
Dr. Schmidt was also called as an expert for the plaintiff, and his
April 23, 2010 report states: “I further assumed he was thrown a significant
distance as a result of that impact” from a motor vehicle. Again, this version is
different than Mr. Eng’s evidence which I have accepted.

[23]        
Dr. O’Shaughnessy was also called as an expert for the plaintiff. Again,
the description Dr. O’Shaughnessy assumed departs from Mr. Eng’s description. Dr.
O’Shaughnessy’s November 10, 2010 report states:

According to the information
available, he was a pedestrian crossing a street and apparently struck by a car
that was estimated to travel anywhere between 30 to 50 kilometres per hour.
There have been some varied descriptions of the accident and injuries in the
records and I am relying heavily on both the statements Mr. Healey made to me
as noted in Appendix A as well as a review of ambulance and hospital records.

[24]        
In Appendix A to the Dr. O’Shaughnessy report, Mr. Healey reportedly
said:

He states witnesses later informed him that he was thrown 15
feet up in the air and 40 feet forward. I note this may be an exaggeration
based on the records reviewed noted under Appendix B.

[25]        
Dr. O’Shaughnessy included the ambulance crew report as Appendix B; it
states:

They noted that he had been
struck by a car estimated to travel at 30 to 50 kilometres per hour and that he
had been knocked onto the hood and landed 20 feet from the crosswalk. He was
not unconscious.

[26]        
The source of this information is unknown. No evidence was led regarding
the impact speed.

[27]        
No member of the ambulance crew was called to testify at trial. The
ambulance crew report was not filed. The hearsay nature of the ambulance crew
report regarding these facts makes this portion of Dr. O’Shaughnessy’s report inadmissible
and can be given no weight.

[28]        
This inadmissibility finding is not reflective of Dr. O’Shaughnessy’s
character or expertise, and this Court has repeatedly accepted his expertise
and his character is in no way impugned. Dr. O’Shaughnessy had no control over
the evidence the plaintiff called in this case.

[29]        
Dr. O’Shaughnessy’s report noted the VGH emergency room records:

There was a report he had been
struck by a car and thrown some 20 feet. He was complaining of pain the right
thoracic area but there was no evidence of any chest, head or abdominal pain.
He was again noted to be alert and oriented with normal Glasgow Coma Scale of
15. There were no external signs of head injury. He was diagnosed as having blunt
trauma with minor contusions. X-rays to the chest, pelvis, cervical spine and
right hand were all negative.

[30]        
Mr. Healey’s own description of the accident contained in documents he
completed in preparation for his initial consultation with Dr. Posen read “MVA
– body thrown 30 -40 feet and up ten feet” (Plaintiff’s Trial Binder, Tab 8,
page 4).

[31]        
The difficulty with such inconsistent reporting of the accident,
specifically the distance that Mr. Healey might have been thrown or as Dr.
O’Shaughnessy characterized it the “exaggeration” of how he was thrown, is that
subsequent expert reports the plaintiff submitted were based on an exaggerated
set of facts or inadmissible statements that became the factual basis for those
medical legal reports.

[32]        
Where the facts upon which such reports are based have not been proven, the
weight to be given to those reports is significantly diminished – perhaps to
the level where they are almost worthless.

[33]        
As can be seen from the preceding discussion, multiple medical
practitioners repeated what Mr. Healey said people told him about the accident.
In other words, they inadvertently perpetuated the double hearsay. I will
address how this conduct affects the weight I give these expert reports later
in these reasons.

[34]        
No other evidence was given about the Chung vehicle’s speed except for
Mr. Eng who testified that the Chung vehicle was not travelling above the speed
limit.

[35]        
As previously noted, I accept Mr. Eng’s evidence as to the events of the
accident. He was in a uniquely immediate position to see the accident from a
stationary position. He was not distracted, and nothing blocked or reduced his
vision. I accept his description of the accident and that Mr. Healey landed
approximately 10 feet from the location where he pushed himself away from the
Chung vehicle. While he gave no estimate of the actual speed the Chung vehicle
was travelling, I also accept the evidence of Mr. Eng that the Chung vehicle
was not speeding.

[36]        
The immutable laws of physics inform my analysis: they dictate that the
force necessary to cause an adult body struck by a motor vehicle to fly 20 feet
in the air and 40 feet from impact to landing is far more significant than the
force necessary to move an adult body pushing against a vehicle’s hood to move
10 feet from impact to landing.

[37]        
Moreover, and perhaps more importantly, the immediate deceleration
landing in contact with the hard asphalt surface of 41st Avenue following a 40
foot flight would be expected to cause injury well beyond “minor contusions”.

[38]        
I reject any suggestion that Mr. Healey flew 20 or 40 feet to a height
of 15 or 20 feet from impact to place of rest. The evidence does not support
that submission.

III.            
the next six months

[39]        
The nature of the injuries Mr. Healey actually did suffer was the
subject of a good part of the trial.

[40]        
For the first six months following the accident, the plaintiff’s
condition improved significantly.

[41]        
He had neither bony fractures nor neurological injuries. All the
injuries were soft tissue injuries.

[42]        
Dr. Kuo initially diagnosed him with soft tissue injuries in multiple
areas including his neck, back, hips, chest wall and right wrist. Mr. Healey
was initially prescribed two medications – Voltaren, an anti-inflammatory for
his soft tissue injuries, and Ranitidine, an antacid to protect his stomach –
and physiotherapy treatments.

[43]        
 During this time frame, Dr. Kuo was away on maternity leave for an
extended period, and Mr. Healey frequently saw locum doctors working in Dr.
Kuo’s practice.

[44]        
Dr. Kuo testified she had problems reading the handwriting of at least
one of the locums. When she could decipher the writing, she found entries that
were problematic, and she ultimately referred to a portion of the notes that
formed her clinical record as a “lost cause”. One such entry referred to
self-medication by Mr. Healey with an excess of un-prescribed anti-inflammatory
medication

[45]        
By the end of December 2005, he was described as still experiencing
daily headaches and mid-neck and lower back pain. But “[o]verall he felt
slightly better in that the pain was not as severe”: Dr. Kuo’s report dated
June 19, 2006, p.3.

[46]        
By January 13, 2006, Mr. Healey again reported improvement: “overall he
felt he was doing better” and “was getting somewhere with physiotherapy”.
Examination of his neck, mid-back and lower back revealed some muscle spasm but
not as severe as his prior visit to Dr. Kuo. He reported to Dr. Kuo that his
neck, back and hip had improved since the accident. Physiotherapy had helped
his recovery.

[47]        
By February 2006, Mr. Healey reported some more improvement in his neck,
but his back continued to be stiff with slight muscle spasm evident in the
upper paraspinal muscles and moderate observable muscle spasm in his lower back
between L-2 and L-5.

[48]        
By February 24, 2006, Dr. Kuo’s locum reported “overall he felt he was
improving”, but he was still experiencing some pain in his back and left hip. His
neck symptoms had almost completely resolved; in fact, he had no observable
muscle spasm in his neck.

[49]        
Before her maternity leave, Mr. Healey and Dr. Kuo discussed the
possibility of returning to work at Sleep Country for light duties. He reported
that he intended to return to four 10 hour shifts per week driving a delivery
vehicle.

[50]        
On March 27, 2006, Dr. Simpson, Dr. Kuo’s locum, saw Mr. Healey. He
continued reporting back and hip pain, and “he was asked to continue his
current physiotherapy regimen and to continue his current work schedule to only
working four 10 hour shifts per week.”

[51]        
On April 10, 2006, Mr. Healey reported to Dr. Kuo:

He had not been able to return
to work due to the ongoing symptoms of pain in his back and left hip with
stiffness in his back and hip which seemed to have worsened when he attempted
to return to work to do four 10 hour shifts per week.

[52]        
A discussion about Mr. Healey’s reported work activities and alleged
attempt to return to work will follow later in these reasons.

[53]        
He also reported mild muscle spasms that restricted his ability to do
household work or interact with his children. On May 2, 2006, at another
appointment with Dr. Kuo’s locum, it was reported that “He had not returned to
work because he needed more physiotherapy in order to improve his mobility
before he could do that.”

[54]        
Dr. Herschler reported marihuana use by Mr. Healey. He told the doctor it
helped him sleep and reduce nightmares. He said that “other than marihuana he
does not smoke or drink.”

[55]        
Dr. Herschler noted that Mr. Healey had no neurological injury but only
soft tissue injuries, and he recommended that Mr. Healey continue with
chiropractic treatment and ongoing exercise, and Dr. Herschler issued a guarded
prognosis with some concern that symptoms may remain for 12 to 18 months.

[56]        
Dr. Herschler also noted that pre-existing neck pain from one of the
numerous work place accidents that Mr. Healey suffered before the current
accident had not changed: Dr. Herschler’s report dated September 25, 2006, p.
3.

[57]        
Dr. Herschler made a very limited report of some symptoms of
post-traumatic stress disorder, e.g., nightmares and sleep awakenings. Dr.
Herschler reported that almost all pain symptoms, save low back and left hip
pain, were completely resolved when he saw Mr. Healey.

[58]        
Mr. Healey stated that he suffered from depression because of the
accident. Depression was not reported in his post-accident symptomatology until
2008. Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had
symptoms consistent with depression. This reporting, however, preceded the
accident, and according to the psychiatric specialists Dr. Kuo referred Mr.
Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the
DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder.

[59]        
Dr. O’Shaughnessy made the same diagnosis, namely that Mr. Healey did not
exhibit the symptoms of post-traumatic stress disorder.

IV.           
Previous injuries, pre-existing conditions & Medical Findings

[60]        
The injuries Mr. Healey suffered on December 4, 2005 were not the first
injuries he suffered as an adult. He suffered injuries in an earlier motor
vehicle accident and during employment, particularly while working as a mattress
delivery person.

[61]        
In 2002, he was involved in a motor vehicle accident that caused
injuries that did not resolve quickly, and Mr. Healey had to take time off work
to recover. In June 2003, he was still complaining about these injuries: he said
he could not play with his children, participate in recreational baseball, or
do household chores.

[62]        
Earlier work place injuries kept Mr. Healey from working from February
18, 2002 to June 18, 2002; July 12, 2002 to July 14, 2002; January 10, 2003;
January 12, 2003; October 14, 2003 to November 21, 2003; November 25, 2003 to
February 16, 2004; February 23, 2004; and March 3, 2004.

[63]        
In May 2005, a workplace injury to Mr. Healey’s lower back was reported
with severe pain symptoms causing a workplace absence from January 15 to
February 16 and April 2 to May 25, 2005; the absence was followed by an active
rehabilitation program. The employer offered a period of light duties, but Mr.
Healey told the employer that his doctor would not approve a light duties
program. Dr. Kuo’s records do not reflect that she told Mr. Healey to refuse of
a light duties program or that she considered Mr. Healey’s involvement in a
light duties program at all.

[64]        
The main injuries at dispute in this trial are: neck, hip, and back
pain; chest pain and related vomiting; head trauma/brain injury; headaches; and
post-traumatic stress. I will proceed through the various doctors that Mr.
Healey saw to determine what injuries actually occurred and whether those
injuries resolved or continue to persist.

[65]        
Approximately a year after the accident, Dr. Herschler noted tight
muscles in the low back and a restricted range of motion around the left hip. Dr.
Herschler was told that the other symptoms had resolved and that neck pains and
headaches had returned to pre-accident baseline levels.

[66]        
Later in 2009, Mr. Healey saw Dr. Herschler again and reported a variety
of new symptoms including headaches; sleep disturbance; memory and
concentration problems; and lung function complaints. Dr. Herschler concluded
these complaints were not related to the December 2005 accident.

[67]        
Dr. Schweigel, who conducted an independent medical legal examination of
the plaintiff, confirmed that, apart from complaints of chest pain related to
coughing during a viral illness, chest pain was not complained of until summer
2007. In other words, it was too far away in time to be associated with the
accident.

[68]        
The plaintiff raised a complaint about the expertise and independence of
Dr. Schweigel. Ultimately, his expertise as a medical specialist was admitted.
I found nothing objectionable in his report that, at the end of the day, had
very little to do with the outcome of this case and, in particular, was not
influential in my credibility finding concerning Mr. Healey.

[69]        
The plaintiff did not report any chest or rib complaints until June 2007
when he first reported a “popping rib” to Dr. Kuo. Dr. Kuo was not asked if the
rib complaint was related to the accident.

[70]        
Mr. Healey was referred to a respirologist, Dr. Lau, an expert in chest
and lung medicine. No report was filed from Dr. Lau.

[71]        
Dr. Kuo reported that the lung studies diagnosed asthma that is not
related to the December 2005 accident. She recommended that Mr. Healey cease
smoking. Dr. Kuo was aware of his use of cigarettes and his chronic marihuana use.

[72]        
Dr. Posen, a naturopathic doctor, was called as a witness by Mr. Healey.
Dr. Posen commented extensively on Mr. Healey’s chronic marihuana use. Dr.
Posen said Mr. Healey was using marihuana every 1 to 1.5 hours to help him
sleep.

[73]        
One of the issues at trial surrounded the possibility that Mr. Healey
suffered a concussion or mild traumatic brain injury in the accident. At p. 10
of her August 12, 2009 report, Dr. Kuo wrote:

Douglas was seen in my office
again on October 18, 2007 to discuss the results of his MRI scan. The MRI scan
of the head revealed an 11 mm signal intensity in the left parietal lobe. The
radiologist stated that a non-hemorrhagic sheer could not be excluded.
Inflammatory infection and ischemic etiologies are additional considerations
for this non-specific appearing abnormality.

[74]        
Dr. Kuo then referred Mr. Healey to Dr. Mackie for an expert
consultation on the MRI results. Mr. Healey failed to attend two scheduled
appointments, and Dr. Mackie refused to schedule any further appointments for
him.

[75]        
Mr. Healey was then referred to Dr. Varelas, a neurologist, who
concluded that “Douglas’ neurological exam was normal and therefore the lesion
on the MRI scan of the head was of uncertain significance.”

[76]        
At pp. 15 and 16 of Dr. Kuo’s trial transcript, the doctor testified
that she learned, by some undisclosed means, that on November 14, 2006 Mr. Healey
was seeing a naturopath who was treating him for “head trauma and breathing
problems.” At p. 16 of the same transcript, Dr. Kuo said:

Oh. I think that the naturopath
stated — I think at that time Doug told me the naturopath was — that was what
the naturopath was treating him for, that’s what the naturopath told Doug that
he was treating him for, head trauma and breathing problems.

[77]        
Later at line 34, p. 16 of the trial transcript, Dr. Kuo is asked if the
head trauma and breathing problems were related to and caused by the accident; her
response was: “We believed it was, yes.” The Court was not informed of the
identity of those included in the word “we”. At this point, nothing evidences
any direct communication between Dr. Kuo and Dr. Posen. Dr. Kuo told the Court
she relied upon what Mr. Healey told her Dr. Posen told him.

[78]        
I reviewed Dr. Posen’s clinical notes (Exhibit 10) and listened to Dr.
Posen’s recorded testimony. It was necessary to listen to the testimony because
it explained some of the very difficult to read handwritten notes contained in
Exhibit 10. Nowhere in Dr. Posen’s clinical notes or testimony is the phrase
“head trauma” used.

[79]        
On November 23, 2006, Dr. Posen reported in his notes that Mr. Healey told
him he had “pressure in the head” after Dr. Posen treated Mr. Healey. Dr. Posen
was not questioned about “head trauma” or that “head trauma was caused by the
accident of December 4, 2005.” The answer to the latter question would
necessarily have been an opinion.

[80]        
Dr. Posen was not called as an expert and did not provide an expert opinion.
He was called as a fact witness. The difficulty with his evidence was that most
of it was simply testifying about what Mr. Healey told him with very little
reporting by Dr. Posen of actual observations of injury. Insofar as his
evidence merely parroted what Mr. Healey told him, it was not helpful, and it
is inadmissible hearsay.

[81]        
Dr. Posen gave evidence of manipulations, acupuncture, acupressure or
other treatments that he gave Mr. Healey, but he failed to relate those
treatments to any injury caused on or about December 4, 2005.

[82]        
Having considered the various comments made by practitioners called to
testify or whose reports were tendered, I am satisfied that the opinion of Dr.
O’Shaughnessy, is to be preferred on the issue of whether or not Mr. Healey
suffered a concussion in the accident.

[83]        
He opined: “I do not think he suffered an actual concussion or traumatic
brain injury.” He also opined that the plaintiff did not display the full array
of symptoms required to meet the threshold criteria to diagnose “post-traumatic
stress disorder”. I accept these opinions based on Dr. O’Shaughnessy’s credentials
and his examination of Mr. Healey’s medical records.

[84]        
I find that Dr. Posen was not treating Mr. Healey for “head trauma”. Dr.
Kuo’s assertion that Dr. Posen was treating Mr. Healey for head trauma was in
error.

[85]        
On all the evidence, I am not satisfied on a balance of probabilities
that Mr. Healey suffered a concussion or any form of traumatic brain injury on
December 4, 2005.

[86]        
Mr. Healey and his wife both testified that one of the ongoing symptoms
following the accident was regular vomiting as many as twelve times a day; it caused
significant weight loss. Mr. Healey testified he vomited twelve times during
the first week following the accident.

[87]        
With a single exception much later in the course of treatment by Dr. Kuo,
none of the medical legal reports or clinical records presented by Dr. Kuo or
any of the locums who dealt with Mr. Healey’s case mention vomiting.

[88]        
The law is clear that the failure to report a single symptom to a doctor
will not itself become a basis for a negative credibility finding. In this case,
one of the ongoing problems, as noted above regarding complaints about the nature
of the accident or with symptoms in the ribs or chest, is that erroneous facts
become the diagnostic basis for an expert doctor to connect a specific symptom
with a specific injury. Here, no expert report connects vomiting with any
injury caused by the accident.

V.             
Credibility issues for Mr. Healey

[89]        
Dr. Kuo also reported that Dr. Simpson, a locum, asked Mr. Healey to
continue his current physiotherapy regime and “to continue his current work
schedule only working four 10 hour shifts per week.”

[90]        
Mr. Healey was not working in his former position at Sleep Country
Canada, nor in any other Sleep Country Canada position, in four 10 hour shifts
per week in March 2006. In fact, in March 2006, Mr. Healey was not working at
all.

[91]        
One might treat this inaccurate statement as an error the locum made. But
Mr. Healey repeated this statement to various medical experts as their records
show, and it cannot be attributed to any error.

[92]        
Rather, according to Dr. Kuo, Mr. Healey told her on April 10, 2006 that
“he had not been back to work due to ongoing symptoms of pain in his back and
left hip with stiffness in his back and hip which seemed to have  worsened when
he attempted to return to work to do the four 10 hour shifts per week.” Before
April 10, 2006, Mr. Healey made no attempt to return to work with Sleep
Country.

[93]        
Dr. Kuo later repeated the same statement (at page 5, third paragraph) in
her June 19, 2006 report. It said that Mr. Healey was not working at all and certainly
made no attempt to return to work at Sleep Country before April 2006.

[94]        
Dr. Herschler reported that “Mr. Healey was not able to return to his
former vocation which involved repetitive bending and lifting.”

[95]        
Dr. Posen recorded Mr. Healey telling him he lost his job with Sleep
Country because he could not physically do the work. This assertion is simply
untrue.

[96]        
It became apparent that Dr. Herschler and Dr. Posen were not made aware
that his former employer terminated him because of chronic absenteeism.

[97]        
In Appendix “A”, to Dr. O’Shaughnessy’s report, he said Mr. Healey
stated that “he had previously worked for Sleep Country Canada but had been
dismissed after conflicts with a manager related to his duties as shop steward”.

[98]        
As I detailed below, however, Mr. Healey was terminated for chronic
absenteeism. The story that he was terminated because of a conflict related to
union activity is a “bald faced” lie. The correspondence set out below reveals that
the shop steward assisting Mr. Healey was actually an individual with the poetic
name “William Shakespeare.”

[99]        
Mr. Healey was asked during examination-in-chief about a letter addressed
to him dated April 13, 2006 from Sleep Country Canada. He said he did not
understand the letter, and no further questions were asked. The letter’s contents
are as follows:

Our records indicate that RBC Insurance, our Short Term/Long
Term disability benefits provider, has closed your file effective April 12,
2006. The file was closed due to medical evidence, provided by your physician
to RBC that does not justify total disability that would support any condition
which would impose restrictions or limitations preventing you from exercising
your occupation at Sleep Country Canada. Total disability according to the
provisions of this policy, means that as a result of an injury or illness, the
insured is unable to carry out the essential duties of his/her usual occupation
and is under the care of a legally qualified physician and follows the proper
treatment program.

As a result of your file being closed, effective immediately,
short term disability benefits will cease.

Brett Sweeney, Human Resources
Sleep Country Canada

[100]     The letter’s
contents clearly provided that the short term disability benefits payable to
Mr. Healey ended on April 13, 2006 because the medical evidence his doctor gave
the insurer no longer satisfied the test that Mr. Healey was unable to carry
out his usual occupation’s essential duties.

[101]     Mr. Healey,
a man of limited means, must have known that his household was not receiving the
income from these benefits. The answer that he did not understand the letter’s contents
was not credible or at least disingenuous.

[102]     The next
medical-legal opinion the plaintiff presented on this subject was Dr.
Herschler’s report. He notes that he reviewed the following documentation in preparing
his report:

1.       Sleep
Country Return to Work Physical Guidelines dated March 1, 2006;

2.       Hospital
records from the Vancouver General Hospital dated December 4, 2005; and

3.       Dr.
Susan Kuo’s June 19, 2006 medical-legal report.

[103]     The first
two of those documents were not provided by the plaintiff to the Court. Insofar
as Dr. Herschler’s report contains facts derived from such documents that are
not otherwise proven, the Court cannot give weight to such facts, and equally,
the Court has no basis to determine what facts the first two documents actually
contained.

[104]     Apart from
that issue, Dr. Herschler reports that Mr. Healey spoke of persistent low back
pain and restricted range of motion in his left hip. Mr. Healey acknowledged he
had a pre-existing history of neck pain and headaches.

[105]      Dr.
Herschler says “the history and physical findings are consistent with physical
injuries” and noted the muscles around his left hip were tighter. Mr. Healey
also reported to Dr. Herschler that he had not been able to continue with his
job as he could not do the work, but he did not tell him the truth – i.e., that
absenteeism was the reason Mr. Healey’s employment was terminated.

VI.           
expErt reports

[106]     Facts
relied on or assumed by an expert for the purpose of giving an opinion must be
proven in evidence: R. v. Abbey, [1982] 2 S.C.R. 24 [Abbey].
In R. v. LaVallee, [1990] 1 S.C.R. 852 [Lavallee], the SCC
reviewed and endorsed Abbey. In Abbey, the SCC said:

An expert opinion based on second-hand evidence is
admissible, if relevant. …If an expert is permitted to give his opinion, he
ought to be permitted to give the circumstances upon which that opinion is
based

…Testimony as to the
circumstances upon which the opinion is based is not introduced, and cannot be
introduced, in order to establish the veracity of the second-hand evidence.

[107]     Where expert
evidence is comprised of hearsay evidence, the problem is the weight to be
attributed to the expert’s opinion.

[108]     But before
any weight can be given to the expert’s opinion, the facts upon which the
opinion is based upon must be proven in evidence. In other words, admissible
expert evidence cannot be given any weight without a proper factual foundation.
The lack of such proof will have a direct effect on the weight to be given to
the opinion, and if such proof is lacking, the opinion will be given little, if
any, weight.

[109]     Further
support for the above principles is contained in Lavallee at paras. 66
and 84; R. v. Gibson, 2008 SCC 16 at para. 58; R. v. Paszczenko; R.
v. Lima
, 2010 ONCA 615 at para. 21; and R. v. Davey, 2010 ONCA 818 at
para. 14.

[110]    
In Lavallee, the majority held that the mix of proven and
unproven evidence should go to weight. But Sopinka J., for the minority, stated
a distinction between information known and widely accepted in a field of
expert opinion and facts coming from the party’s mouth:

84        Where, however, the information upon which an
expert forms his or her opinion comes from the mouth of a party to the
litigation, or from any other source that is inherently suspect, a court ought
to require independent proof of that information. The lack of such proof will,
consistent with Abbey, have a direct effect on the weight to be given to the
opinion, perhaps to the vanishing point. But it must be recognized that it will
only be very rarely that an expert’s opinion is entirely based upon such
information, with no independent proof of any of it. Where an expert’s opinion
is based in part upon suspect information and in part upon either admitted
facts or facts sought to be proved, the matter is purely one of weight. In this
respect, I agree with the statement of Wilson J. at p. 896, as applied to
circumstances such as those in the present case:

… as long as there is some admissible evidence to
establish the foundation for the expert’s opinion, the trial judge cannot
subsequently instruct the jury to completely ignore the testimony. The judge
must, of course, warn the jury that the more the expert relies on facts not
proved in evidence the less weight the jury may attribute to the opinion.

[111]     The
foregoing principles of law were adopted by Watt J. in R. v. Worrall, [2004]
O.J. No. 3463 at para. 83 (Ont. Sup. Ct.)

[112]     In this
case, the first medical-legal reports in sequence provided a markedly different
version of the accident than what I have found actually occurred. Other doctors
then reviewed the initial medical-legal reports, and the incorrect facts in
them were adopted as being true. Opinions in the subsequent reports that are
based on these inaccurate can be given very little weight. In Sopinka J.’s
words, much of the weight I would have given these reports has vanished.

VII.          
TERMINATION of sleep country employment

[113]     Mr. Healey
was cross-examined about the termination of his employment at Sleep Country. He
seemed determined to have the Court believe he actually worked in a work
hardening program that was to start May 31, 2006.

[114]     His answers
in cross examination were wandering and often unresponsive. He went to great
lengths to create explanations or excuses about what he could or could not
remember or what he had or had not done. All of the explanations and excuses were
without substance or support in light of the documents produced from Sleep
Country’s records. (The documents from Sleep Country were marked Exhibit 6 and
consisted of 17 pages including the fax cover sheet.)

[115]     The
earliest of those documents is a letter (pp. 10 and 11 dated March 2004); it details
nine disciplinary incidents regarding Mr. Healey since 2001, including a dismissal
for failing to report for work in February 2003. That dismissal was reduced to
a seven and one-half month suspension without pay following a grievance. This
first letter also details 10 incidents of “a history of non-culpable
absenteeism that appears to be getting progressively worse.”

[116]     The
incidents of absenteeism occurred from February 2002 until March 3, 2004. The
first letter provides that if Mr. Healey’s absenteeism did not improve over the
following 12 months, Sleep Country may conclude that the employment
relationship would no longer be viable and terminate employment. Mr. Healey
signed that letter and acknowledged its receipt.

[117]    
A second letter, dated July 9, 2004, was hand delivered and again signed
by Mr. Healey and his shop steward. The letter confirmed that Mr. Healey called
in sick on July 4, 2004 with a toothache and stated he would bring a doctor’s
note to verify his absence. As of July 10, no doctor’s note was turned in. The
letter finished with the following:

Please note that all absences
where a doctor’s note is requested or stated, Sleep Country Canada’s
expectation is that you will see a doctor the day of your absence or go to a
walk-in clinic that day, not a week later.

[118]    
By letter dated May 26, 2005, the third letter, which was captioned
“Regular Attendance at Work”, noted some improvement in Mr. Healey’s attendance
following the March 24 letter. However, the third letter stated:

Recent events have again given
us concern regarding your ability to work without injuring yourself, the amount
of time you take off when injured and your ability to attend work regularly.

[119]     The third
letter detailed 13 incidents of absence for reasons ranging from toothache;
slip and fall at a bus stop; and back and neck injuries received at work. The
letter recorded Mr. Healey’s reluctant attendance at the Back Institute of
Canada notwithstanding that Dr. Kuo recommended attendance.

[120]     Sleep
Country, through Mr. Chambers, made recommendations in the letter to follow
medically recommended treatment and exercise programs; it provided instruction
and literature on correct lifting procedures to prevent further workplace
injuries.

[121]    
Mr. Healey’s absence from work continued to be a significant concern for
Sleep Country as the third letter stated:

Please be advised that if your
pattern of absenteeism does not improve, your employment will be terminated on
the basis that the employment relationship is no longer viable.

[122]     Both Mr.
Healey and his shop steward, William R. Shakespeare, signed this third letter.

[123]     A fourth
letter dated May 27, 2005 was also signed by Mr. Chambers and Mr. Healey; it
confirmed the two men reviewed two publications together:

1.       Back
Talk, an Owner’s Manual for Backs, 2001 Edition;

2.       Understanding
the Risk of Musculeskeletal Injury (MSI), 2001 Edition ISSN 1499-2388.

[124]     Both of
these publications were given to Mr. Healey for future study and reference.

[125]     It is
against this history that the December 4, 2005 accident occurred. Sleep Country
provided a letter to Mr. Healey dated May 20, 2006 that confirmed Mr. Healey’s
planned participation in a Work Hardening Plan. The first work day specified in
that plan and contained in the letter was Wednesday, May 31, 2006 at 8 a.m. Mr.
Healey signed this letter acknowledging its receipt on May 30, 2006.

[126]     By letter,
dated June 14, 2006, that was sent to Mr. Healey, Mr. Chambers for Sleep
Country confirmed that Mr. Healey did not attend work at Sleep Country at 8
a.m. on May 31, 2006 as instructed both verbally and in writing.

[127]     The June
14 letter also confirms that Mr. Healey did not show up for work on June 1,
2006 but called in sick. On June 2, 2006 he did not show up for work but called
in sick after his shift started.

[128]     His next
scheduled shift was on June 4, 2006 but he did not call in or report on June 4,
2006. He also did not report for work or call in on June 5, 2006. The letter
records that a meeting was held between Mr. Chambers and Mr. Healey in the
presence of a shop steward named “Mark Hahow” on June 14, 2006. The foregoing
events of absenteeism were confirmed at that meeting.

[129]    
At that meeting, Mr. Chambers also confirmed language from the arbitrator’s
report:

I find the grievor’s [Mr.
Healey] conduct in failing to properly notify the company of his absence from
June 20, 2003 onward, together with his past employment history, is deserving
of a severe penalty which would have the effect of letting him know that his
employment with this employer is in jeopardy if he engages in blameworthy
conduct in the future.

[130]     The letter
concluded that because of the failure of Mr. Healey to report for work on a
regular basis, he was suspended for four days from June 10 to June 14, 2006. The
letter set out his next scheduled shift:  8 a.m. on Friday, June 16, 2006. Mr.
Healey signed that letter acknowledging he read it.

[131]     The
evidence discloses that Mr. Healey attended work on Friday, June 16, 2006 but
he called in sick on June 17, 18, 2006. He was required to produce a doctor’s
note to support that absence, but he failed to produce that note on June 19,
2006 when he returned to work.

[132]     On June
19, 2006, Mr. Chambers gave Mr. Healey permission to leave work for a scheduled
doctor’s appointment at 2:15 p.m. to obtain the note. His shift ended at 6:30 p.m.
that day. Mr. Healey left work to attend the scheduled appointment but did not
return with the required note and did not return to work that day. He failed to
call Sleep Country to advise that he would absent for the balance of the shift
following the appointment with Dr. Kuo.

[133]    
Mr. Chambers sent a further letter, dated June 20, 2006 to Mr. Healey,
and the letter simply says:

This letter is to confirm our
discussion of June 20, 2006 where we reviewed the letter that was sent to your
residence on June 15. It was been explained that the suspension was a
disciplinary measure and that further misconduct would lead to additional
discipline up to and including termination of your employment. You have
acknowledged that you understand the consequences of progressive discipline as
well as the contents of the suspension letter dated June 14, 2006.

Mr. Healey signed that letter acknowledging receipt of it.

[134]     As a
result of the foregoing and upon reviewing Mr. Healey’s entire employment
history, Sleep Country issued a letter dated June 30, 2006 immediately terminating
his employment for cause. A copy of that letter was sent to the Retail
Wholesale Union Local 580. No grievance or arbitration proceeding was taken
against Sleep Country for terminating Mr. Healey’s employment.

[135]     I have
reviewed the foregoing records with care because Mr. Healey’s counsel misquoted
the records’ contents in submissions.

[136]     It is
clear why Mr. Healey was terminated: his work record was less than acceptable. I
find that his employment was terminated because of his failure to attend as an
employee on a regular basis, and his termination was totally unrelated to any injury
caused on December 4, 2005.

[137]     He was
repeatedly warned and had previously been terminated for failure to attend
properly. That prior termination was replaced with a lengthy seven month
suspension without pay, but his employment was reinstated. Mr. Healey was
subject to progressive discipline for failing to attend work. It is clear that
an inability to perform the work required was not the reason for his dismissal.
Mr. Healey did not attempt to find other employment following the end of his
employment.

[138]     I conclude
that his past wage loss claim must end at the point of his firing by Sleep
Country. He had lost his job for reasons unrelated to the accident, and he did
not seek other employment and thereby breached his duty to mitigate his
damages.

[139]    
Following Sleep Country terminating his employment, Mr. Healey and his
wife decided it made financial sense for their family to have Mrs. Healey
return to work.

[140]    
Question 771 to 778 from the examination for discovery of the plaintiff
were put to him, and he agreed he had been asked the questions and the answers
were true and those are as follows:

771      Q         —
you’re home raising the children and looking after the house

 because
your wife’s working.

 A          Yeah.

772      Q         What’s
preventing you from reversing that?

 A          Well,
a lot of things, Would be — first of all, haven’t been able

 to
get any employment that’s going to take care of my required

 bills.
Um, my wife is in a much better position as far as — you

 know,
she does have her education and she did finish high

 school.
She did — she doesn’t have a criminal record. She’s

 taught — took a lot of
cross-training, you know.

773      Q         So
she’s just simply better qualified?

 A          She’s
— she’s — she’s much more qualified. She’s also a lady,

 and
she’s brown, so she kind of fits into a lot of moulds of

 being
able to get into a much better occupation than myself

 at
this point that’s going to at least provide for our family. At

 the
end of the day, that’s — the bills have to be paid, period.

 And,
you know, in order for me to be able to get even back to

 work,
I need to know that I was — you know, I mean, I tried it.

 I
went back to Regional Recycling for a while, and she was

 doing
some work at the time, too. I did try it, and — and even

 not
even working full-time hours, it was — it was definitely,

 um, not working for me. So

774      Q         Well,
how much does she make at her job?

 A          Uh,
she makes, I think — this is salary, I think she — I think

 it works out to be about 16 — 16 or
17 bucks an hour.

775      Q         So
is one of your points that, even if you had no health

 issues
at all, that you would be hard-pressed to earn more

 than
that?

 A          Yeah.

776      Q         Just
given you — your limited education, your criminal record?

 A          Yeah.
Well, even when I went to work for Sleep Country

 Canada,
I mean, when I first started working there, I think I

 was
only making 12 buck an hour. It took me five years to get

 to
a capped-out point where I was making, I think, 19

 something
an hour. But it took a lot of perseverance and a lot

 of overtime hours to get myself into
that position.

777      Q         Do
your – does your physical or mental/emotional condition

 limit
you from being a provider?

 A          I don’t know. I don’t know.

778      Q         As
it stands, you haven’t — you haven’t been in a position

 to
find out?

 A          Exactly.

[141]    
As noted at para. 103 of these reasons, Dr. Herschler wrote:

As a result, he was not able to
return to his former vocation which involved repetitive bending and lifting

[142]     To the
extent that this comment is intended as a report of fact that Mr. Healey
attempted to return to work in May 2006 from Mr. Healey, it is inaccurate. If
Dr. Herschler assumed a reason for Mr. Healey not returning to his former
vocation – an inability to do the work – that assumption is not supported by
the evidence before me.

[143]     Dr.
Herschler wrote an addendum to his report dated March 3, 2010. He reported that
he had read the clinical records of Dr. Kuo up to June 23, 2009 in preparation
for the addendum. In the addendum, Dr. Herschler noted that Mr. Healey “tried
to return to work at Sleep Country”, and “he was laid off because he was not
able to fulfill his duties.” Both of those statements are incorrect and not in
accordance with the evidence.

[144]     Mr. Healey
apparently told other experts, whose files report similar statements that he
had not returned to Sleep Country as an employee due to his inability to
perform work there as is reflected in the report of Gary Worthington-White
dated November 7, 2006 and the report of Janice Landy (Exhibit 3, tab 7) dated
February 7, 2011 at p. 33.

[145]     The report
of Janice Landy is particularly problematic. The opening premise of the report
is a preparation of a plan of future care for a person who suffered a traumatic
or catastrophic injury. The needs of the client are dictated “by the nature and
extent of the injury.”

[146]     The nature
and extent of the injury is the very issue that has been decided against Mr.
Healey in this case. The injury suffered by Mr. Healey was neither “traumatic”
nor “catastrophic” assuming those words have parallel meanings. He suffered a
minor injury detailed in the initial hospital report referred to by Drs. Kuo
and O’Shaughnessy.

[147]    
Ms. Landy makes a series of assumptions that were not proven in evidence:
“Both injuries had completely resolved at the time of the motor vehicle
accident.” Ms. Landy was referring to prior work place injuries, and this
statement is inconsistent with other evidence that supports a finding that the
prior injuries had not completely resolved but instead remained symptomatic up
to December 5, 2005.

[148]    
Ms. Landy stated: “There were no known substance abuse problems.” But Mr.
Healey was smoking copious quantities of marihuana on an hourly basis according
to the evidence of Dr. Posen.

[149]    
Ms. Landy wrote:

On December 4, 2005 Mr. Healey
was struck by a motor vehicle while crossing the street. He was apparently
thrown a significant distance on impact.

As repeatedly noted above, neither
the distance involved nor the impact were significant.

[150]     Ms. Landy
also wrote:

He describes an “in and out”
feeling during the ambulance ride and the emergency room visit.

[151]     Hospital
records reviewed by Dr. O’Shaughnessy and Dr. Kuo both report that Mr. Healey
suffered no loss of consciousness. Mr. Healy specifically told Dr.
O’Shaughnessy he did not experience a loss of consciousness. Previously, he
told Dr. Posen that he was unconscious.

[152]     Mr. Healey
was not in any way a reliable or credible reporter.

[153]     Finally,
Ms. Landy cherry-picked through the reports of Dr. Schmidt and Dr.
O’Shaughnessy. She referred to Dr. Schmidt’s report speaking of symptoms of
post-traumatic stress disorder, but Dr. O’Shaughnessy specifically opined that
the symptoms he observed after reviewing the medical reports did not meet the
threshold diagnosis for post-traumatic stress disorder. In other words, Mr.
Healy did not have that condition.

[154]     It is
reported that, notwithstanding Mr. Healey’s absenteeism “his employment was
terminated on the basis he was unable to perform the physical demands of the
job.” This assumption was not proven and contrary to the evidence at trial.

[155]     As I have
found above and as reflected in the evidence, Mr. Healey’s position at Sleep
Country was terminated based on chronic absenteeism; he made no attempt to
return to work at Sleep Country and there is no supporting evidence for the
proposition that any injury from the accident prevented a return to Sleep
Country.

[156]     For the
foregoing reasons, particularly that the assumed facts adopted by Ms. Landy
were either not proven or contrary to other accepted evidence, I cannot give
her report any weight.

[157]     A similar
difficulty arises with the expert reports concerning vocational consulting for
Mr. Healey. Mr. Healey was a very successful Gecko breeder with substantial notoriety
in the reptile business community. And once his youngest child was in school,
on his own initiative, he sought and maintained full time employment, presently
in the pest control business. Reports that suggest he has no ability to obtain
or maintain employment or that he needs outside help in finding employment
simply ignore the facts of this case. Such reports have no evidentiary value in
this case.

[158]     Mr.
Healey’s gross income for the period from the accident until the end of May,
2006 was $18,940 gross with a 20% reduction for taxes and appropriate
deductions, so his net loss was $15,152.64, and I find that amount to be his
net past wage loss from the accident.

VIII.        
Submissions of the Plaintiff

[159]     The plaintiff
submits that he “related his story in a candid and open way.”

[160]     I do not
agree.

[161]     His “story”
is at odds with the evidence of the accident, and he reported a variety of
“stories”, inconsistent circumstances, and symptoms to the variety of medical
practitioners whose expert reports were presented at trial.

[162]     This
trial’s only issue was the nature and extent of accident and its effect on the
plaintiff. I find that his evidence was fabricated.

IX.           
Damages

[163]     In written
submissions, the plaintiff’s counsel sought damages on a non-pecuniary basis
between $115,000 and $200,000; past loss of earning capacity of $177,728; loss
of future earning capacity between $150,000 and $517,000; cost of future care of
$139,345; special damages of $14,079; and loss of housekeeping capacity of
$50,000. Global damages claimed for what was said to be a catastrophic accident
range from $485,000 to $1,037,000. This accident was minor and without
significant injuries.

[164]     The
plaintiff relies on case law dealing with non-pecuniary damages including:

·      
Wong v. Luong et al, 2004 BCSC 1489

·      
Prince-Wright v. Coperman 2005 BCSC 1306

·      
Johnstone v. H.M.T.Q., 2006 BCSC 1867

·      
Djukic v. Hahn, 2006 BCSC 154

·      
Stapley v. Hejslet, 2006 BCCA 34

·      
Ashcroft v. Dhaliwal, 2007 BCSC 533

·      
Adamson v. Charity, 2007 BCSC 671

·      
Williamson v. Suna, 2009 BCSC 576

·      
Towson v. Birghman, 2009 BCSC

·      
Taraviras v. Lovig, 2011 BCCA 200

·      
Ahadi v. Valdez, 2013 BCSC 714

[165]     I have
reviewed each of those cases and am satisfied that few of those decisions assist
in resolving the present case. Simply put, the injuries the plaintiffs suffered
in those cases bear no resemblance to the injuries Mr. Healey suffered. The
vast bulk of the plaintiff’s claimed symptoms or injuries are based on his own
reporting to physicians who accepted what he told them. In other words, the
case is dependent on Mr. Healey’s credibility that I have found to be wanting.
He was neither a credible nor reliable witness.

[166]     Counsel
relied on Athey v. Leonati, [1996] 3 S.C.R. 458 where Major J. dealt
with the “but for test” that requires that the plaintiff only show the injury
of which he complained would not have occurred but the defendant’s negligence.
Causation is established where the defendant’s negligence materially
contributes to the injury occurrence of and a contributing factor is material
if it falls outside the minimum range. The defendant admitted liability but his
evidence was not credible and proved very little by way of injury.

[167]     Defence
counsel relied on a number of cases including:

·      
Robinson v. Anderson, 2009 BCSC 1450

·      
Grewal-Cheema v. Tassone, 2010 BCSC 1182

·      
Carter v. Zhan, 2012 BCSC 595

·      
Thibeault v. MacGregor, 2013 BCSC 808

·      
Gonzales v. Voskakis, 2013 BCSC 215

I have also reviewed each of these cases.

[168]    
In Price v. Kostryba, [1982] B.C.J No. 1518, McEachern C.J.S.C.
(as he then was) noted the inherent difficulty that soft tissue injuries
present to courts. At para. 4, he said:

Perhaps no injury has been the
subject of so much judicial consideration as the whiplash. Human experience
tells us that these injuries normally resolve themselves within six months to a
year or so. Yet every physician knows some patients whose complaint continues
for years, and some apparently never recover. For this reason, it is necessary
for a court to exercise caution and to examine all the evidence carefully so as
to arrive at fair and reasonable compensation

[169]     Mr. Healey
presented very little, and in some cases, no objective evidence to corroborate
his alleged ongoing, persistent pain symptoms that continued long past the
normal or usual recovery time for a minor incident.

[170]     Nonetheless,
Mr. Healey was injured in a relatively minor accident, and he is entitled to
compensation for his injuries. His injuries were soft-tissue in nature and most
of those injuries healed to the pre-accident condition in which Mr. Healey
lived. I find that he has proven that there was some lingering pain and
discomfort that continued up to eighteen months following the accident.
Thereafter Mr. Healey reported and was apparently treated for a number of
conditions that had nothing to do with, and were not caused or contributed, to
the accident.

[171]     In my
judgment, taking into account the submissions of counsel and the case cited
therein together with the evidence as found by the Court, the plaintiff should
be awarded $32,500 for non-pecuniary damages.

X.             
special Damages

[172]     Mr. Healy
submitted $14,079 of claims in several categories characterized as special
damages including:

A.       Ambulance and taxi expenses;

B.       Naturopathic treatments; and

C.       Loans from family members.

[173]     The
defendant disputes these claims as inflated, unproven and unrelated to the
accident that is the basis of Mr. Healey’s claim.

A.             
Ambulance and Taxi Expenses

[174]     Nine taxi
receipts were exhibited at Tab 14 of the plaintiff’s trial binder. In the
plaintiff’s closing submissions, a chart at p. 58 sets out in a list a total of
fifteen taxi cab receipts. The Court cannot make a finding on claimed expenses
which were not evidenced at trial so only the nine exhibited receipts will be
considered.

[175]     Mr. Healey
in his examination-in-chief could not identify particular receipts as travel to
any particular health professional. Later in evidence, Mr. Healey stated that
taxi travel must have been related to purposes related to the accident, but he could
not specify what occurred on any given date.

[176]     The dates
of appointment with treating health professionals would have been easily
identified by Mr. Healey and clearly known to him; however no attempt was made
to relate the receipts to particular appointments. One of the receipts refers
to travel from a White Spot to an illegible address. Judicial notice can be
taken that the “White Spot” is a restaurant chain of long standing in British
Columbia. Three receipts dated January 27, 2006 and March 7 and 10, 2006 have
no travel “to” or “from” information on them at all. The receipts have not been
connected in the evidence to any particular medical or naturopathic treatment.

[177]     While I
recognize that the passage of time impacts memory, Mr. Healey’s generalized
statement that these receipts must relate to the accident, without any
corroborating evidence that would have been readily available and the lack of
probative information on the receipts themselves, is not persuasive and does
not meet the test for proof on a balance of probabilities.

[178]     There is
no dispute that the expenses claimed for ambulance of $64 and Advil of $12.75
are special damages, and those amounts are allowed.

B.             
Naturopathic Treatments

[179]     As noted above
in these Reasons, no expert opinion supports the naturopathic care for Mr.
Healey. Dr. Posen was not asked to give any opinion. As also noted above in
these Reasons (para. 81), his description of naturopathic therapies was not
related in his evidence to treating particular injuries caused on December 4,
2005. I do note that some of the treatment was said to be in response to soft
tissue injury and related pain, but those complaints did not cover the entire
spectrum of treatments Dr. Posen offered.

[180]     As mentioned,
Dr. Posen was not, for instance, treating Mr. Healey for any traumatic head or
brain injury.

[181]     One of the
receipts from Dr. Posen’s office referred to “nerve express testing” occurring
on October 23, 2006. Documents supporting this claim are contained in the
plaintiff’s trial binder at Tab 6, pp. 19-25. An expert opinion would be
absolutely necessary for this Court to accept or understand the meaning of
these test results. But the plaintiff provided no opinion.

[182]     Similarly,
another receipt from Dr. Posen’s office describes “CEP Core Exercise Program”.
Dr. Posen made no mention of this program in testimony before this Court, and Mr.
Healey made no mention of participating in any exercise program in July 2007.

[183]     Mr. Healey
did not claim, in his final submissions, for appointment charges where he
failed to attend his scheduled appointments.

C.             
LOANED MONIES

[184]     Monies Mr.
Healey borrowed from his mother or others are not “special damages”. Mr. Healey
testified that he did not recall the use to which the borrowed monies were put.
Mrs. Healey testified that the borrowed money was used to pay household
expenses including rent. Consequently, no evidence before the Court
demonstrates that borrowed monies were used in any way, for instance, for
therapy for injuries the accident caused that somehow would relate the
borrowing to the accident.

[185]     Second,
only interest paid on borrowed money would be a “special damage.” And absolutely
no evidence before this Court demonstrates that any interest was agreed or paid
in relation to the claimed loans. Consequently: no amount is allowed for the
borrowed monies: Choma v. Canadian Vehicle Leasing Limited, [1982]
B.C.J. No. 1036 (S.C.) and Wong v. Hemmings, 2012 BCSC 907.

[186]     Based on
the above Reasons and a concession by defence counsel, I find the amount of
special damages claimed must be significantly discounted due to a lack of proof
or clear proof of the expenses claimed.

[187]     Special
damages will be allowed in the total amount of $3,000. principally because of
the concession by defence counsel.

XI.           
conclusion

[188]     In summary,
judgment is awarded to the Plaintiff as follows: $32,500 for non-pecuniary
damages, $15,152.64 for past wage loss, and $3,000 for special damages for a
total judgment of $50,652.64.

[189]     The
plaintiff is not entitled to damages for any other head of damage.

[190]     The plaintiff
will have pre-judgment interest on the past wage loss in accordance with the Court
Order Interest Act
.

[191]    
The issue of costs shall be the subject of further submissions by the parties.

“Ball J.”