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Tuesday Morning Case Bites for August 6, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Smith v Obuck, 2019 ABQB 593
Personal Injury Judgment | Credibility | Damages

This was a Trial decision for personal injuries arising out of a motor vehicle accident where an unusually large award of $250,000 for future capacity was made. The Plaintiff was 18 years old on the date of loss, and his highest annual income was $78,461.61, which was ten years post-accident. The rationale behind the award was the Plaintiff’s young age and his intention to work as a heavy equipment operator.

The 18 year old Plaintiff was injured in a rear end motor vehicle collision in November 18, 2007.  Damage to his vehicle was estimated at $6,119.54.  The issue at Trial was whether his current back complaints were related to the collision, or if his back pain was due to other causes, including his subsequent participation on “Canada’s Worst Driver” after the collision.  Credibility was also a key issue, because the Plaintiff had his family physician sign off on a medical form required for his appearance on “Canada’s Worst Driver” certifying that he was in good health, and he executed a contract certifying that he was in good health less than 1 year after the collision.

(a) Pre-existing Health

The Plaintiff’s pre-existing health included a prior collision at age 11, an ankle fracture at age 14, and a fall on stairs with residual back pain in 2005.  However, he did not have any ongoing complaints at the time of the collision.

(b) Post Collision Complaints and Participation on Canada’s Worst Driver

The Plaintiff attended 12 physiotherapy treatments from November, 2007 to January, 2008.  Subsequent visits were scheduled, but he did not show up.   The Concluding Report was executed 5 months later, but the Court was critical of the representations made therein:

[197]      A Concluding Report was not completed until June 27, 2008. There are statements in that Report that cannot be reconciled with the other evidence as a whole. There are also internal inconsistencies, as the last time the Plaintiff attended on January 22, 2008, he had only 80% improvement and it was recommended that he return once per week. The Concluding Report indicates “no indication for ongoing problems as client reported that he was able to complete all ADL’s and was reporting minimal pain”. The basis for those conclusions is not clear. Ernest Lee, physiotherapy consultant who testified at trial, could not explain why no attempt was made to call the Plaintiff before completing the Concluding Report.

After the collision the Plaintiff complained of backpain.  However, in June, 2008 he saw his family doctor in order to have her sign off on his attendance on Canada’s Worst Driver.  The Court Noted the following:

[81]           The form signed by Dr. Grynoch, for the Plaintiff’s participation on CWD, was signed June 12, 2008. In that form, Dr. Grynoch indicated the Plaintiff’s general appearance was “normal” and his back was “normal”. At the bottom of the form, she completed the portion that stated “[i]n my professional opinion, the artist is in sound health and free from disease and is in a fit condition, subject to any qualifications mentioned above, to fulfill his production/performance/engagement.”

In addition, the Plaintiff signed an agreement representing that he was in good health:

[83]           In the Participation Agreement, the Plaintiff made certain representations to Proper Television Inc., including those set out in paragraph 8.2, and 2(h) and 4.1(f) of Schedule A to the Agreement:

8.2      You warrant and undertake to us that you (a) are in good health and are fit to participate in the Program and have no medical or other condition (whether old or new) which may be affected or aggravated by participating in the program …

2(h)      Participant shall use Participant’s best endeavours to attain and maintain such a state of health as will enable Participant to render participant’s contributions under this agreement as effectively as possible and as will enable Company to effect insurance on Participant on normal and reasonable terms on Participant for Company’s own benefit against losses arising from Participant’s inability to contribute and participate in the Program. Participant shall forthwith submit to medical examination, as requested by Company, by any doctor appointed by Company or its insurers and make true and accurate replies and statements in connection with applications for the purpose of any such insurance.

4.1(f)   Participant hereby warrants, represents and undertakes to Company that Participant is not now nor has at any time been subject to or suffering from any injury, ailment, incapacity, condition, indisposition, or the like which might adversely affect the ability or suitability of Participant to render the contributions required hereunder or prevent Participant from rendering Participant’s contributions hereunder;

[84]           When asked during examination-in-chief about these representations, the Plaintiff explained that he had discussed these things with his mother and decided his participation on CWD wouldn’t affect his back pain. He felt there would be no high impact and nothing to prohibit participation and that it would not make his back worse.

Video excerpts from Canada’s Worst Driver showed multiple impacts with pilons, and barrels:

[88]           Portions of the CWD videos were played at trial. In all of the videos, Tegan was the driver and the Plaintiff was a passenger. The videos show Tegan’s attempts to navigate various courses and, in the process, hitting pilons, driving with “the wobble”, scraping the car on objects, hitting tire rim stacks, hitting obstacles, scraping cars, hitting barrels with water on top, jerking back and forth, and driving onto a see-saw. At one point, Tegan was shaving and reading an instruction manual while driving with the Plaintiff in the back seat. He also attempted parallel parking. Most of the courses involved driving at slow speeds, though there were occasions when Tegan was driving too fast (more than 35 km/hr). On one course, he made 10 attempts at backing up while trying to spin around, and he scraped the side of the car, and the back of the car hit a barricade.

[89]           On another course, Tegan was driving a jeep with water in a container in the back and the course had obstacles on both sides, causing water to spill on Tegan and the Plaintiff. On another course, Tegan drove through styrofoam arches and hit some as he was driving through. On yet another course, he hit styrofoam people. During the videos, there was commentary by different people about Tegan’s driving and there was an emphasis on making him realize his bad driving habits and trying to help him improve as a driver.

In 2009 the Plaintiff returned to his family physician with complaints of back pain.  Xrays showed no abnormality.

In July, 2010 the Plaintiff started chiropractic treatment.

In 2011 the Plaintiff was seen by a psychologist for an assessment.  He reported driving anxiety and low mood.  She diagnosed him with mild depression.  He did not return for recommended treatment.

Subsequent records detailed ongoing chiropractic treatment and mention of back pain to his family doctor from time to time.  The Court accepted the following evidence on the Plaintiff’s back pain:

[250]      Though evidence of ongoing back pain does not establish causation on its own, this is an important point to address in light of the Defendant’s position that the Plaintiff’s back pain had resolved within the first approximately 1.5 years following the accident, the Court finds that the Plaintiff’s back continued to bother him, varying in degree, from the date of the Accident to the present time. The evidence of the Plaintiff in this regard is corroborated by the following evidence:

  • The evidence of both Ms. Titus and her partner, Mr. Sawchyn, who lived in the same home with the Plaintiff, and who often heard him complain about his back and observed how the back pain affected his day to day life. The evidence from these witnesses covers the period from the date of the Accident until the trial;
  • The evidence of the Plaintiff’s employers and co-workers, who not only heard the Plaintiff speak of his back pain, but who were in some cases affected by his absences from work to deal with the back pain. The evidence from these workers covers the period in October 2008 (DGS), March to September 2009 (DGS), October 2009 to February 2011 (Pitney Bowes), March 2011 to end of April, 2012 (Double M Metals), and June 2012 to August 2018 (DGS);
  • Dr. Grynoch saw the Plaintiff in August of 2009 for back pain. Her chart notes confirm the Plaintiff told her he had ongoing back pain though it was not as bad during the winter of 2008-2009 because he was taking correspondence courses;
  • The evidence of Dr. Nutting, who saw the Plaintiff from July of 2010 through 2018 and whose evidence indicates that the Plaintiff had seven exacerbations to his symptoms – estimated as approximately one every 6 months. Dr. Nutting’s evidence provided objective findings for the Plaintiff’s back pain. The evidence of Dr. Nutting is significant, because his chart notes provide evidence of the pain being suffered by the Plaintiff on an ongoing basis as a result of his activities and during his employment with Pitney Bowes, with Double M Metals, and with DGS (after June of 2012). The frequency of his visits to Dr. Nutting and the intensity of his back pain increased between mid-2012 and 2016 when the Plaintiff returned to his more labour intensive work with DGS and his work related back pain decreased somewhat when the Plaintiff began working in the office at DGS in 2016;
  • The evidence of the choices made by the Plaintiff with respect to education and job changes, including his inability to return to the labour work at DGS following the Accident, his conclusion that labour jobs were not good for him and his decision to quit his office furniture installation job in January of 2008 and return to school, his return to DGS in a sedentary office position from March to September of 2009, his work for Pitney Bowes in a job that involved little physical labour, and his 2016 move in DGS from the field to an office position. All of these choices are at odds with the career path that the Plaintiff had chosen, namely, to become a heavy equipment operator. The only reasonable conclusion from the evidence is that these choices were made because of the Plaintiff’s ongoing back pain.

[251]      The evidence of the Plaintiff, the evidence of his family and co-workers, and the evidence of Dr. Nutting all support a conclusion that the Plaintiff’s back continued to bother him on an ongoing basis from the date of the Accident to the date of trial 11 years later.

Dr. Naidu was called at Trial, and diagnosed the Plaintiff with chronic mechanical lower back pain, deconditioning, and right L5 discogenic pain post-accident.

Dr. Irvine, a physiatrist, was also called as an expert.  He diagnosed chronic pain, thoracic strain (resolved), lumbar strain, and deconditioning.  He noted that an MRI sowed multilevel degenerative disc disease.  Dr. Irvine gave the Plaintiff a 3% impairment and recommended “the Plaintiff engage in a regular exercise program in order to maintain his current level of employability and help reduce his symptoms enough to improve his quality of life. Dr. Irvine also felt there were some elements of anxiety and fear around the pain that needed further addressing by a psychologist.”

In an updated report in 2018 Dr. Irvine diagnosed “chronic pain disorder, mechanical lower back pain of mixed discogenic and facetogenic origin, and myofascial pain of lumbar and thoracic paraspinal musculature.”  Dr. Irvine also commented that there is a significant difference in how a 19 year old versus a 30 year old with the same injury deal with seeing a doctor, and that it was not unusual for someone in the Plaintiff’s age group to delay seeing a doctor despite being in pain.

Dr. Rashiq, and anesthetist, was called by the Defendant.  He diagnosed “non-specific chronic low back pain, deconditioning, and illness conviction”, but said the collision did not cause these issues, because he “could not think of any way in which the events that took place on that day could have been the sole cause of what [the Plaintiff] suffered from.”

The Court preferred the Plaintiff’s experts on the basis that they were physiatrists as opposed to an anesthetist.  Secondly, the Court did not like the tone of Dr. Rashiq’s report, and felt that there were inaccuracies in it.

The Court concluded that although the Plaintiff’s symptoms had improved by 2008, they had not resolved.  He downplayed his symptoms to his doctor to get on Canada’s Worst Driver, and although he was 19 at the time he “was not yet a mature adult”.   Specifically, the Court made the following conclusions:

[350]      In June of 2008, the Plaintiff was only 19 years of age. He was not yet a mature adult. Dr. Irvine testified that there is a significant difference between the way a 19 year old and a 30 year old present to a physician. The Plaintiff’s life had been significantly impacted by the Accident. His evidence, and that of Ms. Titus, was that they believed he would recover from his injuries. With hindsight, the Plaintiff’s actions regarding his attendance on Dr. Grynoch to get the CWD forms signed and his own representations made in the forms, required for his participation on CWD, may not have been wise when viewed through the litigation lens. But he was living his life in a way one would expect for a 19 year old who had been knocked down by an Accident, who had been suffering from the after effects of that Accident (including depression) who thought he would recover from his injuries, and who was presented with what he believed was a once in a lifetime opportunity that would also be enjoyable.

[351]      The Plaintiff’s misrepresentations made to get on CWD cast a shadow on his credibility. Had there not been the other corroborating evidence to support the Plaintiff’s evidence of ongoing back pain since the Accident, the outcome may have been different. However, when the evidence as a whole is considered, I am satisfied that the Plaintiff has established on a balance of probabilities that he continued to suffer from back pain from the date of the Accident until the date of trial. When this fact is considered with all of the other evidence, including the expert evidence of Dr. Irvine and Dr. Naidu, the Court finds that the Plaintiff has proven on a balance of probabilities, that “but for” the defendant’s negligent act in causing the Accident on November 18, 2007, the injuries and degenerative changes to the Plaintiff’s back would not have occurred.

The Court assessed General Damages at $70,000 on the following basis:

[361]      Taking into account the fact that the Plaintiff was only 18 at the time of the Accident, he had already had back pain for 11 years pre-trial, and he will continue to suffer into the future due to the permanent nature of his back injury, the Court finds that a fair award of general damages for the Plaintiff is $70,000.00. The Plaintiff’s claim for damages is conservative in my view, and for this reason, I consider that a damage award of $70,000 adequately addresses the Plaintiff’s failure to mitigate his damages.

(c) Past loss of Income

At the time of the collision the Plaintiff was 4 credits short of finishing high school.  His work history included working part time at Ticket Master, and working as a labourer building retaining walls for his mother’s partner’s business, DGS.   He earned $15 per hour as a labourer and worked 35-50 hours per week.  Overtime was paid at time and a half.

The Plaintiff’s work history from that point forward is outlined at paragraphs 43-44, 53, and 58-69, and 399-406.  The Plaintiff worked various other positions including operating a roller packer, working as a mail runner in a law firm, working as a sheet metal worker, and as a labourer and then estimator for DGS until 2018 when he was let go due to a shortage of work.

T4 slips showed the following chronology:

2007   $8,110 ($5,112.84 from DGS and $2,997.57 from Ticketmaster)

2008   $3,294 (DGS – October 7 to 24)

2009   $8,053 ($5,357.77 from Pitney Bowes and $2,695.92 from DGS)

2010   $29,144 (Pitney Bowes)

2011   $24,491 ($255.43 WCB Benefits, $5,403.22 Pitney Bowes, $19,088 Double M Metals)

2012    $38,423 ($7,853 Double M Metals, $30,570.66 DGS)

2013    $49,667.35 (DGS)

2014   $56,137.24 (DGS)

2015   $72,625.84 (DGS)

2016   $50,202.58 (DGS)

2017   $78,461.61 (DGS)

The Court provided direction for the determination of the past loss of income by an economist to be shared by the parties following the decision.  For the purposes of this calculation, the Court directed that the Plaintiff’s income stream is best assessed by a comparable DGS employee.

(d) Future Earning Capacity

 The Court awarded $250,000 in future earning capacity on the following basis:

[425]      The Court has considered these things as well as the Plaintiff’s age and remaining working life (to age 63.9 according to Dr. Jenkins). The Court has also considered that the Plaintiff says he intends to re-train and that it is therefore possible that he may be out of the workforce while he does so. The Court has considered the Plaintiff’s intended career path to work as a heavy equipment operator and the steps already taken toward that goal. Finally, the Court has considered that if the Plaintiff does not retrain, removing him from the physical labor market will remove the higher paying jobs available to someone with limited education. After considering all of these things, the Court finds that an award of $250,000 for loss of earning capacity/competitive advantage is reasonable.

 (e) Housekeeping:

The Court assessed the Plaintiff’s past housekeeping loss at $2,000 and his future loss at $15,000 on the following basis:

 [437]      The Court is also mindful of the comments of Rawlins J in the case of Willeson v Calgary (City of), 2007 ABQB 117 (CanLII) at para 26, [2007] AJ No 527 where she questioned the value of statistical evidence where evidence is lacking about a claimant’s actual incapacity. The Court finds that there is evidence that the Plaintiff’s ability to complete housekeeping tasks is negatively impacted by the injuries suffered in the Accident. However, on the evidence, the Court finds that this case is more appropriate for a general damages approach to the Plaintiff’s loss of housekeeping capacity than it is to an actuarial calculation approach. I assess $2,000 for past loss of housekeeping capacity and $15,000 for future loss of housekeeping capacity, for a total award of $17,000 for past and future loss of housekeeping capacity.

(f) Future Care

 The Court accepted the following future care items with the present value calculations to be determined by an economist:

  • Body pillow;
  • Portable back support;
  • Long handled bathtub cleaner;
  • Wheeled garbage bin;
  • Robotic vacuum cleaner;
  • Non-prescription medication;
  • 10 sessions of psychological counselling;
  • An exercise physiologist for 5 to 10 sessions with no annual review;
  • 10 sessions a year with a chiropractor.