| |
1 MacLELLAN J.:— This action involves a claim
by the plaintiff Ms. P for damages for personal
injuries she alleges she suffered in a motor vehicle
accident on August 30th, 2000 at Antigonish, Nova
Scotia. The defendant William Horton was the owner
and driver of the other vehicle which struck the
plaintiff's vehicle from behind.
FACTS
2 The plaintiff is 47 years old. Prior to the
accident on August 30th, 2000 she worked as an
office manager for Eastern Sanitation Limited in
Antigonish. She is married for 25 years to her
husband and they have one child who is 25 years old.
He resides with them.
3 On August 30th, 2000, the plaintiff was at
work. She was on lunch break and was driving her
1998 Plymouth Breeze on Main Street in Antigonish.
Some time between 12 noon and 1 p.m. she stopped in
traffic at a red light. There were some vehicles
ahead of her car. Her car was struck from behind by
a vehicle driven by the defendant Weldon Horton. The
collision caused her car to move forward and strike
a truck which was ahead of her in traffic. She said
she remembers sitting with her foot on the brake
pedal and the next thing she knew she was seeing
smoke and black. She said she was dazed and stunned.
She remembers getting out of her car and talking to
Mr. Horton, the defendant. She said she was shaking
badly and a lady came and told her to sit in her car
until an ambulance arrived. She said that she
probably did lose consciousness for a short period
of time. She said her feet and hand went to sleep.
4 She was taken to Outpatients at St. Martha's
Hospital and saw a Doctor Sutherland. He ordered
x-rays taken. She said she had pain in her lower
back and up to her neck and across her shoulder. She
said she had a large bruise on her left shoulder
which the doctor felt came from her seat belt. She
said she thought she had hit the steering wheel of
her car.
5 The next day she saw her family doctor, Jean
Cameron. She was referred by Dr. Cameron to
physiotherapy and went there the next day. She had
been given pain medication by Dr. Sutherland and Dr.
Cameron changed the prescription. She was told to
put ice packs on her back. When she started physio
she was told to change to heat packs.
6 She attended physiotherapy from September 6,
2000 until February 5, 2001 for a total of 53
sessions. Initially, she said it appeared that she
would be able to return to work in late October,
however, that did not happen. On November 16th,
2000, the physiotherapist reported to Dr. Cameron.
| Plan: Ms. P's progress has been very slow. I
am somewhat pleased with the consistency in
which her neck has improved. Her back still
remains somewhat of a labile situation and
easily irritated. I am unable to be more
specific and suggest a soft tissue injury
for the lower spine. Ms. P reports that she
must be back to work by November 27th or she
will not have a job to return to. She is
therefore very focused to attempt a return
to work on that date. We will be working
with her next week trying to strive towards
that and by trying to increase her time and
work simulation to approximately 3 hours per
day by the end of next week. |
7 She continued at physio until February 2001
at which time she said she had to stop because of
the toll it was taking on her physically. She
continued to do some of the exercises at home and at
a neighbour's home who had a home gym. She said she
has major problems sleeping because of the constant
pain in her back. She said she wakes up three or
four times a night. She says she wakes up in the
morning not rested.
8 She saw Dr. Andrew Thompson. He is a
specialist in Orthodontics. The referral was made by
her lawyer. That was done in an attempt to explain
why her jaws were sore and why she was having
headaches and earaches. She said she would put ice
on her forehead and jaw and heat pads on her neck
and shoulder.
9 She also saw Mary Gillis who is a
psychologist. That was for help coping with her
pain. She met with Ms. Gillis for 14 sessions.
Apparently her insurance company paid for these
sessions but they stopped after 14 sessions. Ms.
Gillis referred her to the Mental Health Clinic at
St. Martha's Hospital. She said she talked to a
psychologist there who was prepared to meet with her
if she needed it. She did not go to see that
psychologist.
10 She indicated that she also saw a
psychiatrist, Dr. Rideout. However, the Court has no
report from her.
11 The plaintiff said that during the
physiotherapy sessions she would often lose control
of her bladder and bowels. She said this was caused
by the pain she was in from the exercises. She said
did not have any problems like this prior to the
accident.
12 She said that she has basically stopped
doing many of the things she did before the
accident. She said she used to spend a lot of time
outdoors, hiking and riding an ATV. She used to
socialize a lot and go to dances. She had to cancel
her 25th Wedding Anniversary celebration because of
her injuries. She said she does a small amount of
walking now. She said she tried swimming at her
cottage but could hardly get back out of the water.
13 She said she used to drive a lot alone, but
since the accident she just drives short distances
because she has to stop to get out of the car to
stretch. She also said that she tends to be scared
in a car.
14 She said she agreed to have a functional
evaluation done by Glen Brann. She described that
two day session as "two days of hell" because it
caused her so much discomfort. She said that she
used to do basically all the housework for her
family prior to the accident. Now she does very
little housework. She gets some help from her two
nieces. She said she has lost about 60 pounds since
the accident. She now weights 130 pounds.
15 The plaintiff was referred by her family
doctor to Dr. Robert Mahar and she also saw Dr.
Thomas Loane and Dr. David King. They are all
specialists working in Halifax. She was also
referred for an independent medical examination to
Dr. William Stanish.
WORK HISTORY
16 The plaintiff indicated that prior to her
job at Eastern Sanitation she had a number of
different jobs. She worked for some time at Sears in
Halifax and then with Federal Savings Credit Union.
17 She was there for four years. Her husband
was then transferred to Port Hawkesbury and they
moved there. She said she got a job at Central and
Eastern Trust Company. She was there for two years
and her husband then got a job at Michelin Canada in
Granton, Pictou County. They moved to the Antigonish
area. She took a cosmetology course in Pictou and
worked at that for two years. In 1995, she took a 10
month business course at North Eastern Business
College to upgrade her computer skills. She started
with Eastern Sanitation in 1998 and works there as
office manager. She was paid $13.00 per hour for a
35 hour week.
18 Her income from January to August 30th,
2000 was $15,097.00. After the accident she got
Section B benefits of $140.00 per week.
19 While at Eastern Sanitation she took some
courses in regard to Occupational Health and Safety.
20 Following the accident she was advised to
try doing volunteer work. Arrangements were made for
her to attend the Antigonish Heritage Museum to work
at imputing data into a computer. When she went
there she realized she could not do the work and did
not stay. She said she could not sit for any length
of time because of back pain.
21 The plaintiff said that she did not see
herself ever being able to go back to work.
22 On cross-examination the plaintiff was
asked about a note in Dr. Cameron's chart note in
which Dr. Cameron recorded that she had consulted
her on December 9th, 1999 about a sexual abuse
problem.
23 Dr. Cameron had noted that the plaintiff
had crying spells for a number of weeks because of a
history of sexual abuse by her father involving both
verbal and physical abuse. It noted that she had
never spoken to anyone about this problem before.
Dr. Cameron's notes also indicated that the
plaintiff had problems with appetite and sleeping
because of flashbacks about her father's abuse and
that she wanted to see a counsellor about the abuse
issue.
24 The plaintiff said that she did not
remember ever talking to Dr. Cameron about this
issue and that no such abuse ever happened. She said
she might have told Dr. Cameron what was noted
because she had been watching similar material on a
T.V. show. She said she never went to a counsellor
about abuse by her father.
25 She was asked if her head hit the steering
wheel when the vehicle struck. She said she did not
know if that happened or not. She acknowledged that
she did not tell any medical personnel about that at
the time of the accident.
26 She was asked about her evidence on direct
where she said she would vomit either during or
after doing physio in light of the fact that the
physiotherapist's reports did not note any problem
with the exercises. She said it had happened as she
had described.
27 Dr. Jean Cameron was the plaintiff's family
doctor. She saw her on September 1st, 2000 following
the accident. She said the plaintiff was complaining
of headaches and a sore neck and back pain. She
referred her to physiotherapy and prescribed Tylenol
3. She saw her again on September 12 with basically
the same complaints. On September 21st, 2000 when
she saw the plaintiff again, she said that she
continued to have back and neck pain with the neck
pain improving more than the back pain. Dr. Cameron
wrote to the plaintiff's solicitor on October 20th,
2000.
| On Sept. 21/00 I saw her again. She was
attending physiotherapy three times weekly
and was still using Vioxx 25 mg. po OD. Her
neck was still ++painful with range of
motion and her trapezius muscles were still
very tense and tender. Her lower lumbar area
was still tender along the paravertebral
muscles.
Donelda has a moderately severe whiplash
injury to her neck and musculotendinous
injury to her lower back. It will take
several weeks to get her settled down with
physiotherapy and anti-inflammatory
medication. It is too early to guess how
long she will be disabled by this injury. I
know at this time she will be unable to work
until at least November 1, 2000. |
28 In May 2001, Dr. Cameron referred the
plaintiff to Dr. Mahar because of her chronic back
pain.
29 Joseph Ronald Ms. P is the plaintiff's
husband. He testified that his wife used to do all
the housework in their home prior to the accident.
He said that following the accident when the
plaintiff would go to a physiotherapist session that
he would pick her up and that she would vomit or wet
herself. He said that she could not sleep at night
and would wake him up because of her twisting and
turning in bed.
30 He said that he and the plaintiff do not do
much socially since the accident because of the
plaintiff's back problems. He said they used to go
to dances and parties. He said they also did boating
and riding on their ATV. They also used to often
hike in the woods. He said they do not do these
things anymore and do not garden like they used to.
He also said their sexual activity is greatly
reduced because of the plaintiff's pain.
31 Dr. Andrew Thompson was called as an expert
witness in the field of orthodontics.
32 He testified that he saw the plaintiff on a
number of occasions starting in the Fall of 2000 and
prepared a report for her lawyer. His evidence is
that the whiplash type injury suffered by the
plaintiff caused some injury and his diagnosis was:
| Specific Diagnosis - Cranio - Mandibular
Pain Dysfunction:
(more specific "sub diagnosis" could be
provided if further diagnosis is carried
out)
Cranio-mandibular pain dysfunction syndrome
is now used more correctly to describe what
previously (and in a more limited meaning)
was referred to as "TMJ" or more correctly
as Temporo-Mandibular Joint Pain/Dysfunction
Syndrome. TMD is essentially a
musculo-skeletal injury of various
etiologies. Associated neuro-vascular
tissues are involved as is the head and neck
(and often shoulder and back). It is well
recognized (eg: by A.M.A.) well documented
and researched. |
33 Dr. Thomas Loane testified. He was accepted
as an expert in physical medicine and
rehabilitation. He saw the plaintiff on referral
from her lawyer in June, 2001. His report was
introduced into evidence and he testified at trial.
He indicated that based on what he knew about the
accident that normally 80 percent of people involved
in this type of whiplash type of accident recover
and do well. He said, however, that 10 to 20 percent
do not recover.
34 He noted in the his report
| PRESENT CONDITION: Ms. P states that she has
ongoing severe daily pain in the neck, upper
back and lower back area with radiation into
her left buttock and upper leg. She
continues to have headaches but these have
improved to a frequency of one or two per
week. She associates the headaches with
being tense. She says that she has a habit
of grinding her teeth. When asked whether
this was only since the accident, she
responded "pretty much". Her headaches are
in the frontal area above the eye brows with
radiation into the eyes and occasionally
into the temples.
She does describe aching in the ears and
jaws and says that it is occasionally hard
to open her jaws. She often feels as if her
glands are swollen and on one occasion did
have swollen glands. She has not noticed any
locking of the jaws but does get
crepitation.
She describes aching and stiffness
throughout the lower neck and shoulders and
feels as if there is a lump at the base of
the neck. She describes the pain as being
"toothache" like pain which is present all
the time. She states that her pain levels
are usually better in the mornings, at
approximately 4/10 but by the evening and
night the pain can be up to 10/10. She
experiences numbness and tingling in the
arms. She finds that this occurs more if she
is over exerting or tired.
She describes her lower back pain as being
the worst pain and says that it will "take
my breath away". The pain starts at the left
lumbar area and moves across into the right
side and gradually up into the mid and upper
lumbar spine. The pain travels into the left
buttock and upper leg and she frequently
feels as if the buttock is heavy and
dragging.
PHYSICAL EXAMINATION: On examination, Ms. P
appeared distressed and in pain throughout
the interview portion of the examination.
She alternated sitting and standing because
of pain. She frequently grimaced, sighed and
rubbed her lower back and neck. She stood in
a rather unusual posture with her back bend
forward from the waist with her head flexed
to the right. She moved in a rather slow and
halting manner. She was able to undress and
change into a hospital examination gown for
the physical examination and was able to
change back independently. However, she had
great difficulty moving about the examining
room or on the examining table and had
difficulty lying down and getting up from a
lying position independently.
The general medical examination was
unremarkable. Her blood pressure was normal.
Screening examination of the heart and lungs
was normal. She did not have any enlarged
nodes. Her thyroid gland was not palpable.
Her peripheral pulses were easily obtainable
at the wrists and at the ankles. An
abdominal examination was not carried out.
The usefulness of the physical examination
was compromised by severe pain behaviours,
voluntary guarding, wincing, withdrawal and
vocalizations of pain and discomfort
throughout the examination.
Her extreme pain behaviours suggests a high
degree of emotional distress. Other
explanations include a desire to impress the
examiner with the severity of her symptoms
or, less likely, intentional over action.
With the mechanism of accident, it is
probable that she experienced cervical
sprain symptoms and may also have
experienced lumbar sprain symptoms. These
symptoms usually improve with exercise and
with time. Ongoing symptoms are usually
associated with associated problems such as
sleep disturbance, chronic pain and
emotional distress.
Her extreme levels of pain presentation are
not entirely explainable on the basis of the
types of injuries suffered or on the limited
physical examination information that is
available. As mentioned above, this type of
presentation during the physical examination
can be a form of symptom magnification, a
means of attempting to communicate stress to
the examiner, or an intentionally produced
over reaction. I cannot differentiate
between these possible scenarios on the
basis of my limited physical examination.
However, it is distinctly unusual to have
individuals who complain of mechanical,
muscular or structural pain in the spine and
have such severe limitation when voluntarily
moving and such exaggerated movements when
reacting to pain stimuli. Conversion
disorders can also produce this type of
clinical picture but this would require a
psychiatric evaluation to confirm the
presence of this type of clinical
presentation.
I believe that further psychologic testing
is probably warranted and would suggest that
this include an MMPI-II, a battery for Post
Traumatic Stress conditions and validity
checks to rule out malingering or
inconsistencies in response. This would be
primarily to improve Ms. P's credibility as
her performance during examination scenarios
makes it difficult for the examiner to
entirely rely on her physical findings and
symptoms.
There are no contraindications to continue
on light aerobic exercise programs such as
walking, swimming, light weights and
stretches. She does not require formal
physiotherapy treatment but may benefit from
periodic rechecks to monitor her exercise
program.
In terms of return to work, the barriers do
appear to be her extreme levels of pain and
her pain reactions at the present time
rather than demonstrable physical
impairment. I am unable to determine any
medical restrictions for return to work at
the present time.
PROGNOSIS: Ms. P was examined 10 months post
motor vehicle accident. There is potential
for further improvement over the next year.
However, the behavioural components of her
current presentation suggest a high
likelihood of developing a chronic pain
disability and the factors associated with
this need to be further explored. |
35 Dr. Loane was asked on cross-examination
was there any medical restriction on her ability to
return to work. He answered that there was not. He
also indicated that the plaintiff's physical
responses were "not consistent with her medical
pathology".
36 Glen Brann testified. He is a
physiotherapist and did a functional assessment on
the plaintiff. That testing took place over a two
day period and was done in March, 2001 in
Antigonish. He found that the plaintiff had a
tolerance capacity of two to three hours per day. He
said that based on this contact with the plaintiff
that she seemed devastated by her condition. He
conceded that for the plaintiff to return to work
she would need an employer that could accommodate
her physical limitation.
37 Dr. William Stanish testified. He is an
orthopaedic surgeon and did an assessment on the
plaintiff in March 2001. He filed a report. He
testified that the plaintiff's main complaint when
he saw her was her spine. He said his examine of her
was difficult because of her reaction to his
requests and the apparent difficulty she was having.
He concluded that he could not find anything
objectively wrong with her. He felt that she could
go back to work and based that on the fact that he
could not find any medical reasons why she could not
work.
38 On March 16, 2001, Dr. Stanish wrote to the
rehabilitation consultant dealing with the
plaintiff's file.
39 Further to our telephone conversation on
March 15, 2001, I feel it appropriate that Ms. P
return herself gradually to the workplace. I do not
see that she is in any particular danger doing those
types of tasks that are inherent to being an office
manager. She is deeply convinced that something is
being "missed" and this may be the major issue in
her persistent disability. I cannot find any source
for her continued complaints. In order to clear the
air further, there may be some merit in having her
seen by Dr. David Alexander, an accomplished spine
surgeon. From my standpoint I would recommend the
progressive return to the workplace as the most
fundamental treatment strategy for this patient. He
followed that up on April 2, 2001.
40 Please note in my summary to you regarding
the patient that I really could not find anything
very worrisome on physical examination to support
her contention of severe and incapacitating pain.
Dr. Stanish was asked on cross-examination whether
he could find any evidence of malingering on the
plaintiff's part. He indicated that he could not.
41 The plaintiff was called on rebuttal to Dr.
Stanish's evidence. He had testified that the
examine he did on her took about an hour to conduct.
The plaintiff said she was only in his office for
fifteen minutes including the time it took her to
dress and undress after the examination.
42 Dr. Stanish came back on the stand after
that evidence to clearly state that her estimate of
the examination time was absolutely false.
LIABILITY ISSUE
43 The defendant testified that he was driving
his vehicle on August 30th, 2000, on Main Street in
Antigonish. He said he was behind the plaintiff's
vehicle and saw her vehicle stop in front of him. He
said that he was stopped behind the plaintiff's
vehicle and there was about three to four feet
between his vehicle and her vehicle. He said that he
had his foot on the brake pedal, but that his foot
fell off the pedal and his car started forward. He
said that before he got his foot back on the brake
pedal he had struck the plaintiff's vehicle.
44 He said that after he struck the
plaintiff's vehicle he got out of his car and went
to see if the plaintiff was alright. He said her car
had struck a truck in front of her and that the hood
of her car was folded up in front of her.
45 He said that when his car started ahead his
wife, who was in the car with him, told him that the
car was moving and that he then tried to put his
foot on the brake. He said his foot seemed dead for
just a couple of seconds and that caused him to not
be able to stop his vehicle before he struck the
plaintiff's vehicle.
46 Based on these facts the defendant through
counsel has relied on the defence of inevitable
accident.
47 Introduced into evidence by consent of the
parties is a medical report from Dr. R. Holness. Dr.
Holness had treated Mr. Horton prior to the accident
and also saw him after the accident on a referral
from his family doctor.
48 As a result of the report provided to the
family doctor, counsel for the defendant contacted
Dr. Holness and in June 2000 he wrote to the
defendant's counsel as follows:
| I am replying to your letter of March 19,
2002 and I am enclosing a copy of my clinic
notes regarding my evaluation of Mr. Horton
two days ago. I'll address myself
specifically to your questions as I think
you have detailed background information on
this man who I have seen before. First of
all, I saw him in 1995 when he had
unquestionable evidence of compression of
his spinal cord leading to cervical
myelopathy, ie: damage to the spinal cord in
the neck. This led to clumsiness of his
hands and lower extremities, he went on to
have a decompressive operation done by my
colleague Dr. Mendez, I think around
1995-1996. Subsequently, Mr. Horton was
shown in 1998 to have severe stenosis of the
left internal carotid artery which of course
would predispose him to transient ischemic
attacks or even strokes involving the left
side of his brain which controls the right
side of the body. In October 1998 he was
actually admitted to hospital and at that
time was found to have palsy of his third
cranial nerve and intercranial meningiomas
which though not large enough to require
surgery, were significant enough to require
continued followup.
If one concentrates on the motor vehicle
accident of August 30, 2000, it is clear
from the history that prior to the accident
Mr. Horton developed paralysis of his right
lower extremity and clumsiness of that limb
which made it impossible for him to apply
the brake and operate the motor vehicle. It
took about ten minutes for the symptoms to
clear. This is consistent with a transient
cerebral ischemic attack in the region of
supply of his left carotid artery which is
documented to be narrow and which is known
to predisposed to such attacks. It also
could be related to his previous spinal cord
damage from cord compression. He is also
known to have which is known as a peripheral
neuropathy, a disorder affecting the
peripheral nerves in his limbs. These
combination of effects make it virtually
certain that the episode that Mr. Horton
described prior to his accident had an
organic neurological basis. |
49 The burden to show
inevitable accident is on the defendant. It is clear
that the collision was caused by the defendant. The
plaintiff was stopped in traffic and did nothing to
cause the accident.
50 To establish inevitable accident the
defendant must show on the balance of probabilities
that there was no negligence on his part that caused
or contributed to the accident.
51 Dr. Holness in his report indicates that he
understood that Mr. Horton had developed paralysis
in his lower right leg, and that this made it
impossible for him to apply the brake. He also understood that it took about ten
minutes for the symptoms to clear. That is not the
evidence at trial. Mr. Horton clearly indicated that
the problem with his leg only lasted a few seconds
and that he was able to get out of his vehicle and
walk up to the plaintiff's vehicle.
52 The defendant also said that he was sent to
see Dr. Holness in Halifax by his lawyer and that
Dr. Holness told him that he did not know what to
tell the lawyers. He said on cross-examination that
he never told Dr. Holness that the episode with his
foot lasted five to ten minutes.
53 I believe that Mr. Horton probably told Dr.
Holness that the incident lasted ten minutes,
otherwise, where would Dr. Holness get that
information. I think Mr. Horton changed his version
of what happened at trial.
54 I do not believe Mr. Horton is deliberately
misleading, however, I believe his evidence is
unreliable. He testified at trial that he did not
see his family doctor on the day of the accident,
however, the doctor's notes indicate that on that
date he saw Mr. Horton who reported to him that he
had been involved in a motor vehicle accident.
55 I reject Dr. Holness' opinion about what
caused the accident because it is based on
information given to him that is not accurate. I am
not able to conclude that Dr. Holness' opinion would
be the same if he was advised that Mr. Horton's
incident with his leg only lasted a few seconds
instead of ten minutes.
56 I believe that the collision occurred
simply because the defendant was not being attentive
to his driving and his description of his leg going
dead is simply an attempt to explain why his vehicle
struck the plaintiff's vehicle.
57 I conclude that the collision between the
defendant's motor vehicle and the plaintiff's motor
vehicle was caused solely by the negligence of the
defendant Mr. Horton.
DAMAGES
58 Based on the evidence before me I conclude
clearly that the plaintiff did suffer a whiplash
type injury when her vehicle was struck behind from
the defendant's vehicle. She received treatment from
her family doctor and took physiotherapy for a
number of months. She did not improve and it appears
she actually got worst instead of better as time
passed.
59 In June 2001 when she saw Dr. Loane, she
was complaining of severe pain in her back which
restricted her ability to work. It in fact
restricted his ability to properly examine her. He
felt that "her extreme levels of pain presentation
are not entirely explainable on the basis of the
types of injuries suffered or on the limited
examination information that is available".
60 Dr. Loane was not able to determine what
was basically going on with the plaintiff. He could
not determine whether it was an intentional
exaggeration of symptoms or some emotionally
produced problem that he was not qualified to
diagnosis. He found that: "I am unable to determine
any medical restrictions for return to work at the
present time".
61 Dr. Stanish is more blunt in his opinion
about the plaintiff's condition. He felt basically
that there was really nothing wrong with the
plaintiff and that the best course for her would be
to go back to work.
62 I conclude that the plaintiff suffers from
chronic pain syndrome. I believe that has a
significant emotional component and that the chart
notes of Dr. Cameron in regard to childhood sexual
abuse made in December 1999 and denied by the
plaintiff at trial form the basis for her unusual
reaction to a relatively minor physical injury to
her back.
63 I believe her failure to acknowledge the
emotional issue or even to acknowledge that she
discussed it with Dr. Cameron is unfortunate.
64 It is significant that Dr. Loane suggested
the possibility of a conversion disorder without
ever being advised that the plaintiff had complained
to Dr. Cameron in December 1999 about childhood
sexual abuse.
65 Stedman's Medical Dictionary defines
'conversion' as:
"An unconscious defence mechanism by which
the anxiety which stems from an unconscious
conflict is converted and expressed
symbolically as a physical symptom;
transformation of an emotion into a physical
manifestation." |
66 Dr. Loane in his evidence suggested this as
a possible cause of the plaintiff's problems,
however, felt he was not qualified to give an
opinion because appropriate testing was not done on
the plaintiff. Therefore, he concluded that the most
likely cause of the plaintiff's significant physical
symptoms were an unsophisticated attempt on her part
to tell him how bad she felt. He did not feel that
she was intentionally exaggerating her symptoms or
that she was malingering.
67 Dr. Loane indicated that he sees this type
of reaction in about 10 to 20 percent of people with
relatively minor physical injuries.
68 The Court has not been provided with any
psychiatric evaluation done on the plaintiff despite
the fact that there is evidence that she was seen by
a psychiatrist some time after the accident.
69 The defendant claims that the plaintiff has
not mitigated her damages because she has not
undergone psychological testing as suggested by Dr.
Loane.
70 In White v. Slawter (1996), 149 N.S.R.(2d) 321 our Court of Appeal dealt
with a case involving a claim made by the plaintiff
there based on chronic pain resulting from a
relatively minor motor vehicle accident. I believe
that case is clearly on point for this case and
therefore I will detail the facts there and the
findings made by the trial judge and in the Court of
Appeal.
71 At trial the plaintiff, Mr. White was found
to have been involved in a motor vehicle accident.
He did not require medical attention on the day of
the accident, but some days later attended at his
family doctor who diagnosed a sprain of his lower
spine. Treatment was by painkillers and moist heat.
Later the family doctor prescribed a cervical
collar. He was then referred to an orthopaedic
surgeon and a psychiatrist.
72 In the months that followed, Mr. White was
seen by 12 different specialists of various kinds.
They were not able to help him. At the time of trial
there was few objective physical causes of his
continuing pain. He was diagnosed as having chronic
pain syndrome characterized by emotional distress,
anxiety, depression and reduced self-esteem. He was
not able to work and he complained about having pain
every day.
73 The trial judge found that Mr. White's
psychological problems were the cause of him not
being able to go back to work and that they were
caused by the accident. He found Mr. White to be
totally disabled and assessed damages on that basis.
74 On appeal the Court reversed the trial
judge on all the major heads of damages. Freeman, J.
speaking for the Court said:
| The factual and medical evidence have been
set out in some detail because this appeal
so clearly illustrates the difficulties
facing courts in assessing damages when a
plaintiff suffers chronic pain syndrome in
the aftermath of a tortious accident. By the
time of trial, the plaintiff's problems may
be overwhelming and very real to him. The
problem lies in determining the limits of
the defendant's just duty to compensate in
damages.
It appears from the evidence that for the
purpose of determining damages, chronic pain
syndrome consists of three elements:
1. Physical injuries suffered in a tortious
accident which do not account for the degree
of disability complained of by the plaintiff
and, indeed, which may have wholly healed
without continuing disability effect.
2. Continuing physical discomfort from
causes secondary to the original injury,
which may include cramping, atrophy,
shortening or other stresses in the affected
muscles and tendons resulting from
inactivity during and following the healing
process.
3. A psychological overlay, in which
depression and anxiety may be factors,
resulting in exaggerated symptoms and pain
or other sensations such as numbness which
may be wholly psychosomatic in origin.
Proof of the first element, the initial
injuries, would be similar in any claim of
damages for personal injuries, and subject
to the same burdens of proof. When it is
alleged that part or all of the plaintiff's
disability from the initial injuries results
from a failure to mitigate, as in Janiak.
The burden of proof shifts to the defendant.
In chronic pain syndrome, the plaintiff is
not able to prove his initial injuries
account for the full extent of his ongoing
disability. The burden would remain on the
plaintiff to prove the secondary source of
disability. As chronic pain syndrome was
explained in the present appeal, there is a
distinct possibility it will be avoided if
the plaintiff takes an active and positive
role in his own recovery. The authorities
cited in Janiak for shifting the burden of
proof to the defendant to prove an absence
of mitigation are focussed on the initial
injuries, not the secondary cause of
disability. While the issue does not arise
on the evidence in the present case, much of
which is uncontested, it might be argued
that a plaintiff relying on chronic pain
syndrome should have to show it did not
develop because of his own negligence in
coping with the initial injuries. The manner
in which he responded to medical advice, and
his knowledge of how he did so, are entirely
under his control and beyond the control of
the defendant. It would not be unreasonable
for a plaintiff to have to prove that there
was nothing he could have done to improve
his condition, or, the more likely
circumstance, that despite his own
reasonable efforts the secondary effects
developed as a result of the initial
injuries.
The rule that the defendant must take the
plaintiff as he finds him (Bourhill v.
Young, [1943] A.C. 92 at pp. 109-110) is not
as broad as it may first appear in the
context of chronic pain syndrome. It relates
to the time of the accident, not to the
later period when secondary effects develop.
And it admits of only two broad categories
of plaintiff: one who is capable of making
rational choices, or one who is not. (See
Janiak.) The presumption is that the
plaintiff will behave like "a reasonable and
prudent man" with respect to his injuries:
Baud Corp. N.V. v. Brook, [1979] 1 S.C.R. 633; 23 N.R. 181; 12 A.R. 271.
That is, he will not knowingly make them
worse, and he will take all reasonable steps
to make them better. A defendant is not
required to foresee that the plaintiff will
not behave rationally unless the plaintiff
can show that he was not a rational person
at the time of the accident. The presumption
is rebutted if the plaintiff at the time of
the accident is suffering from a
psychological infirmity that deprives him of
the capacity to make rational choices - see
Janiak. In that case, he is excused from
behaving rationally, that is, he can be
excused from his duty to mitigate, and the
defendant must bear the consequences.
Otherwise, in chronic pain syndrome cases,
the plaintiff's failure to mitigate his
damages by following the recommendations of
doctors and other professionals as to
medication, physiotherapy, surgery, exercise
and return to work will relieve the
defendant of the duty to compensate. Doctors
alone cannot ensure a successful recovery
within parameters dictated by the severity
of the original injuries without the
participation of the patient. Bad medial
advice, or failure by the plaintiff to
follow good medical advice, skirt close to
the concept of "nova causa interveniens", a
matter germane to liability rather than
damages. The concept of mitigation is broad
enough, however, to encompass the duties of
the plaintiff when the issue is the
assessment of damages. This is discussed
below in light of Janiak under the hearing.
"Mitigation of Damages".
If the plaintiff diligently attempts to
mitigate his damages and no improvement
results, he will then be entitled to recover
damages in full measure for the disabilities
that continue from secondary causes related
to the initial injuries, even in the event
of full recovery from the initial injuries.
If, however, there is medical evidence that
a substantial improvement could have been
expected in the plaintiff's condition if he
had followed medical advice, and he failed
to follow it, then he will be deprived of
damages resulting from his own failure. This
will be taken into account in the assessment
of damages even if there is only a
likelihood falling well short of certainty
that the recommended treatment will be
successful. See Janiak.
The activities - work and/or exercise -
required to keep soft tissue injuries from
developing into chronic pain syndrome are
likely to be painful. This is recognized by
the medical profession and summed up by
saying that the activities "hurt but do no
harm". A diligent plaintiff deserves to be
compensated by increased damages for pain
and suffering for what he must endure on the
road to recovery, but he is not entitled to
refuse the necessary discomfort and claim
compensation from the defendant for the
resulting disability. The governing concept
is reasonableness: a reasonable person must
be expected to endure a reasonable degree of
pain in an effort to avoid long-term
disability. The financial disincentives to
diligent efforts to bring about one's own
recovery mentioned by Dr. Petrie in his
evidence may apply to Workers' Compensation
cases but they should have no place in tort
law.
The psychological overlay usual in cases of
chronic pain syndrome appears to initially
involve anxiety and reactive depression
caused by the persistent pain; thus, it may
be a product of the failure to mitigate. The
emotional reaction may reinforce the
reluctance to mitigate and a vicious circle
may develop, but the root cause is not the
initial injuries but the plaintiff's failure
to behave reasonably. Therefore, following
Janiak, psychological symptoms which develop
in the aftermath of a tortious accident
cannot be said to have been pre-existing,
and therefore cannot excuse the failure to
mitigate. When, however, a plaintiff
diligently attempts to follow medical advice
to overcome the long-term effects of his
injuries, and his efforts do not succeed,
depression and anxiety are foreseeable
psychological elements of chronic pain
syndrome and should be reflected in the
award. A defendant, however, has no duty to
foresee that a rational plaintiff will
develop symptoms that are purely
psychosomatic.
The pre-existing psychological infirmity
which may excuse a plaintiff from the duty
to mitigate is plainly not, by its nature,
an element of chronic pain syndrome.
However, the soft skull rule applies, and a
plaintiff is entitled to compensation in
damages when the initial injuries have a
more serious effect upon him than they would
have on a person not suffering from his
pre-existing infirmity. |
75 Justice Freeman then dealt with each head
of damages and reduced each of them. He reduced the
damages for pain and suffering from $100,000.00 to
$40,000.00. He said:
| In Smith v. Stubbert (1992), 117 N.S.R (2d) 118; 324 A.P.R. 118
(C.A.), Chipman, J.A., considered the range
of general damages for pain and suffering in
cases of chronic pain syndrome at p. 127:
"I have considered a number of recent cases
involving damage awards for injuries not
unlike those sustained by the respondent.
Most are cases dealing with that small
percentage of people who do not recover from
soft tissue injuries of the neck but suffer
long-term discomfort which almost invariably
brings on emotional problems. Some of the
cases dealt with other injuries in addition,
and others dealt with injuries of a
different nature but having the common
feature of long-term chronic pain. No two
cases are alike and even similar injuries
will impact differently on different
people... Each case was decided by a
different court at a different time and a
precise range of awards cannot, with
precision, be laid down. In broad terms the
range for nonpecuniary damage awards for
such persistently troubling but not totally
disability injury is from $18,000 to
$40,000."
...
In Smith v. Stubbert, the jury found Mr.
Smith was totally disabled. This finding was
considered perverse on the evidence by
Justice Chipman, who rejected it and
considered the disability to be partial. In
the present case, the findings of total and
permanent disability are undermined by Mr.
White's failure to mitigate his damages. In
any event, the terms "permanent" and "total"
with respect to chronic pain syndrome lack
the absolute quality they would have, for
example, in the case of a spinal cord injury
resulting in paralysis. Chronic pain
syndrome in itself, when it is actually
disabling, implies long-term disability
which may be substantial. A further finding
of permanent and total disability therefore
adds little. Mr. White's chronic pain
syndrome is similar to that suffered by Mr.
Smith; in my view, the cases cannot be
distinguished on this basis.
That is to say, the general damages suffered
by Mr. White for pain and suffering and loss
of amenities resulting from chronic pain
syndrome should be considered within the
range of nonpecuniary damages set forth in
Smith v. Stubbert. The upper end of the
range would contemplate severely disabling
pain and a prognosis that it would continue
indefinitely.
The
$18,000 to $40,000 range of general damages
for pain and suffering for chronic pain
syndrome prescribed in Smith v. Stubbert has
been generally followed in Nova Scotia
courts. In Hendsbee v. Chiasson et al.
(1994), 132 N.S.R. (2d) 241; 376 A.P.R. 241 (S.C.)
affirmed on appeal (1994), 139 N.S.R. (2d) 217; 397 A.P.R. 217 (C.A.))
a $39,000 award was upheld; in Hiltz v.
McNab (1993), 119 N.S.R. (2d) 71; 330 A.P.R. 71 (T.D.),
$25,000 was awarded. In Valencourt v.
Husain (1994), 132 N.S.R. (2d) 291;
376 A.P.R. 291 (S.C), involving partial
disability, the trial judge considered
reduced earning capacity in assessing global
general damages of $50,000. Consistent with
this range, a chronic pain award of $30,000
was left undisturbed by the Supreme Court of
Canada in Engel v. Salyn et al., [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32
W.A.C. 81. This court distinguished Smith
v. Stubbert on the facts in allowing a jury
award of $100,000 to stand in Binder v.
Mardo Construction Ltd. et al. (1994). 136 N.S.R. (2d) 20 (2d) 20; 388 A.P.R. 20 (C.A.), in which the
plaintiff had unsuccessfully made
extraordinary efforts to overcome her
disability and had submitted to surgery
knowing chances for success were small; it
provided no relief but did provide clinical
confirmation of the physical source of her
disabling bursitis.
In the absence of distinguishing
circumstances, and giving effect to the
element of avoidable loss, I would apply the
upper range in Smith v. Stubbert and reduce
the award of general damages for pain and
suffering and loss of amenities to $40,000,
taking note that there has been some
inflationary increase since Smith v.
Stubbert was decided. |
76 Justice Freeman also reduced the award for
lost to future earnings and said:
| It is common practice in assessing general
damages for lost future income in chronic
pain cases to make a global award without
attempting to link it directly to an
arithmetical calculation of annual income
times the number of years until the
conventional retirement age of sixty-five. |
77 He allowed for wages for only four years
instead of until Mr. White reached the age of
sixty-five. That reduced the award from $550,000 to
$120,000.
78 I believe the approach adopted by our Court
of Appeal in White v. Slawter applies here. The last
medical reports are somewhat dated. The plaintiff
saw Dr. Loane in June, 2001 and Dr. Stanish in March
2001. It appears that she has not had any
specialized care since then. Her evidence at trial
is that she is not getting any better. No attempts
seems to have been made to get her any significant
psychiatric treatment.
79 The defendant suggests that the plaintiff
is not credible. It is suggested that she did not
disclose to the health care professionals treating
her that she had problems with anxiety and
depression prior to the accident. That she failed to
follow-up on treatment at the mental health centre
after finishing with the psychologist Mary Annette
Gillis and that especially she did not get
psychological testing done as advised by Dr. Loane.
It is also suggested that she did not get the
surgery recommended by Dr. Thompson.
80 I do have some concerns about the plaintiff's
evidence in this case. Her explanation about the
notes made by Dr. Cameron in December 1999 about
childhood sexual abuse is not credible. I conclude
that she discussed the sexual abuse with Dr. Cameron
and that she now does not wish to acknowledge that.
81 I also find it surprising that at no time
did the plaintiff discuss with Mary Annette Gillis a
pain problem in her jaw when in fact she was seeing
Ms. Gillis for pain issues and at the same time she
was being treated by Dr. Thompson for a jaw pain
problem.
82 I also question her evidence about the
examination done by Dr. Stanish. I reject her
evidence that the examination only took 15 minutes
as she stated.
83 I conclude that the description of the
plaintiff given by Dr. Loane is the one I believe
properly reflects her circumstances. I believe she
tends to exaggerate her physical problems to a
significant degree and therefore it is difficult to
rely entirely on her description of how troubling
her pain is to her.
84 The plaintiff's position on damages is set
out in counsel's pre-trial brief. The claim is for a
general damage award of between $60,000 to $80,000.
In addition, the claim is for both past and future
lost of wages based on annual wages of $22,158 per
year. The claim for past lost to April 2003 at a
weekly rate of $426.00 result in a total claim of
$57,084. ($426.00 x 134 weeks). The plaintiff
acknowledges Section B benefits received of
$7,927.00 and requests interest of three percent
resulting in a claim for lost wages to April 2003 of
$53,437.80.
85 The plaintiff also claims future lost of
wages based on the assumption that the plaintiff
would work at her present employment until age 65.
She also claims loss of housekeeping capacity of
$41,000 and $10,000 for future medical costs.
86 The actuarial report submitted in evidence
to me provides two different scenarios. The first
involves a calculation of her future loss based on
income of $20,284 which is what she earned in 1999
from Eastern Sanitation. The second scenario assumes
that her income for 2000 would be $22,770
considering what she had earned up to the date of
the accident.
87 Mr. Burnell in his report indicates that to
properly compensate the plaintiff for future loss of
wages and assuming she worked until age 65, she
should be awarded under scenario one $289,966 and
under scenario two $325,504.
88 Counsel for the plaintiff acknowledged in
his summation that I could validly reduce the award
for future loss by 25 to 30 percent based on
negative contingencies and possible residual earning
capacity.
89 The defendant's position on damages is that
the general damage award should be in the range of
$18,000 to $25,000 and that the loss of wages should
only be for seven months and that there be no future
wage loss award. They suggest $2,500 for loss of
housekeeping capacity.
90 I conclude when I observed the plaintiff at
trial in April of 2003, that she could not work. She
was not able to sit for any long period of time when
testifying and while she was sitting in the
courtroom. She regularly stood up and her facial
expressions indicated that she had pain in her back.
I conclude that the plaintiff is in constant pain as
of April 2003. I believe that she has had to curtail
her normal activities because of that pain. She has
not been able to enjoy the life that she used to
have prior to the accident. She is clearly entitled
to be compensated for her pain and suffering since
August 2000. While I do find that she was disabled
at the time of trial, I do not believe that she is
permanently disabled.
91 I believe that the diagnosis made by Dr.
Loane in June 2001 should have pushed the plaintiff
to seek more psychiatric help. I believe also that
she should have made more of an effort to attempt to
go back to work. I therefore conclude that she has
failed to mitigate her damages by not seeking
medical attention as suggested by Dr. Loane and not
working through her pain as suggested by Dr.
Stanish.
92 I believe I should approach her case as was
suggested by Justice Freeman in White v. Slawter.
93 I would note that there is no evidence
before me as to how long Ms. P would continue
working. She was not asked if she intended to work
until she was 65. Because of the lack of evidence I
conclude that she would not in fact work to age 65
and that it would be more likely that she would
probably stop working at around age 60. She is now
47 years old and therefore I conclude that she would
normally work for another 13 years and not 17.71
years as assumed by Mr. Burnell in his report.
GENERAL DAMAGES
94 I conclude here that considering the
evidence presented by the plaintiff that an
appropriate award for pain and suffering should be
on the upper range of the Smith v. Stubbert scale,
and therefore I would award her the sum of $45,000
with pre-judgment interest of 2.5 percent from the
date of the accident to the date of the order.
PAST LOSS WAGES
95 I conclude that it is appropriate to use
the sum of $22,770 as the appropriate amount to
determine the plaintiff's past loss and therefore
based on the actuarial report would award her the
sum of $61,877 - $8,424 for Section B benefits
received for a net past loss award of $53,453. I
would award pre-judgment interest of 5.5 percent as
suggested by defendant's counsel in his brief.
LOSS OF HOUSEKEEPING CAPACITY
96 The plaintiff claims for loss of
housekeeping capacity. The evidence is that she was
not able to do the normal work around the house that
she used to do prior to the accident. She indicated
that she got some help from her relatives, however,
there is no clear evidence as to how that help was
valued. The plaintiff's claim as set out in her
counsel's pre-trial brief is for the sum of $41,000
for past and future loss of housekeeping capacity.
97 The defendant suggests the sum of $2,500.
98 In Carter v. Anderson [1998] N.S.J. No. 183, our Court of Appeal
approved the principle that loss of housekeeping
capacity should be a separate head of damages. In
that case the Court adopted a suggested amount of
five hours per week at about $10.00 per hour which
was set in an actuarial report. The Court found that
that amount was reasonable.
99 In this case there is little evidence
except from the plaintiff in which she indicates
that she has received help with household chores
from a number of relatives. Her husband has
basically picked up the responsibility of doing
household duties which he had not done prior to the
accident. She indicated that she did not pay any of
her relatives for the assistance they gave her.
100 Considering what the Court of Appeal did
in Carter v. Anderson, supra, and the general
principles under this heading of damages, I would
award a global amount of $5,000 for loss of
housekeeping capacity.
FUTURE MEDICAL EXPENSES
101 The plaintiff claims based on the evidence
of Dr. Thompson that she might require surgery to
her jaw. She has been receiving medical attention
for her jaw under the Section B benefits portion of
her insurance, and I am not convinced that she has
proven that she will incur expenses of $10,000 as
claimed by her counsel.
102 I would make no award for future medical
expenses.
LOSS OF FUTURE EARNING CAPACITY
103 As I understand the plaintiff's claim she
is alleging that she should be compensated at her
present rate of wages until she reaches the age of
65. That according to the actuarial evidence would
result in an award of $325,504. However, counsel for
the plaintiff has acknowledge d that this should be
reduced somewhat and he has suggested 25 to 30
percent. That could reduce her claim to about
$227,000.
104 Considering what Justice Freeman did in
White v. Slawter I conclude that the proper approach
to this case would be to make a global award. I do
so because I am not convinced that the plaintiff
cannot recover completely from her injuries and
return to employment. I would therefore award her
the equivalent of approximately three years wages or
$66,000 for future lost wages. I believe that will
give her adequate time to recover the extent that
she can go back to work.
105 In summary, therefore, damages awarded to
the plaintiff here will be as follows:
106
| Loss of Past Wages |
$53,453 |
General Damages |
$45,000 |
Loss of Housekeeping Capacity |
$ 5,000 |
Loss of future wages |
$66,000 |
107 The plaintiff will be entitled to
pre-judgment interest of 5.5 percent on her past
loss wage claim and 2.5 percent on her general
damages.
108 The plaintiff will be awarded costs based
on the total award once calculated by counsel unless
there were offers to settle which are relevant to
the issue of costs.
MacLELLAN J.
QL UPDATE: 20031003
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