COURT OF APPEAL FOR BRITISH COLUMBIA
Kurucz v. Con,
2008 BCCA 125
Ryan Jonathan Gee-Yun Con
and Linday Chay Lin Con
The Honourable Mr. Justice Donald
The Honourable Madam Justice Newbury
The Honourable Madam Justice Saunders
Oral Reasons for Judgment
Counsel for the Appellant
R.B. Lindsay, Q.C.
Counsel for the Respondents
Place and Date of Hearing:
Vancouver, British Columbia
5 March 2008
Place and Date of Judgment
Vancouver, British Columbia
7 March 2008
 NEWBURY, J.A.: Mrs. Kurucz appeals an order of the Supreme Court of British Columbia awarding her $15,000 in non-pecuniary damages for injuries she suffered in a motor vehicle accident for which the defendants were liable. It took place on 20 August 2004, at which time the plaintiff was 70 years of age, and the trial was “fast-tracked” pursuant to Rule 66. One of the consequences of this was that the expert witness reports were filed, and then the experts were produced for cross-examination, rather than full examination in chief proceeding in the usual way.
 There was no issue but that the plaintiff had suffered soft tissue injuries in the accident. It was also clear that before the accident, she had experienced dizziness and anxiety on occasion. Indeed, Dr. Laubenstein, her family doctor, had diagnosed a “generalized anxiety disorder” in early 2003. The real issues at trial were whether the increased dizziness and anxiety she reported after the accident were the result of her injury. The expert evidence consisted of the following:
a) A report from Dr. Laubenstein, her family doctor, who said in part:
In the MVA of 20 August 2004 Mrs. Kurucz sustained moderate flexion-extension musculoligamentous injuries to her cervical (esp. C2-C4), high thoracic (T1-7), lumbar (T12-L3) and lumbosacral (LS-S1) spine (all L>R). Other regions were the left rib margin, left trapezius, left periscapular and anterior left neck. Due mainly to the left high cervical and trapezius damage she developed a constellation of symptoms described as “dizziness” and discussed above. She also suffered from increased general anxiety due to her decreased functioning and worry re her prognosis.
Mrs. Kurucz sustained injuries in a previous MVA (2001). The worst area was her left trapezius, neck and scapula – these had recovered to 90% of their pre-2001 level by the time of the Aug/04 MVA. At present her neck is about 70% restored to its pre-2004 status. There is no history of other neck or head injuries, thus the great majority of her current physical disability is directly due to her 20/8/04 MVA. After the 2001 MVA Mrs. Kurucz did have similar “dizziness” symptoms but they were not as severe, and had resolved by late 2003. Therefore I feel that her disequilibrium problems are entirely due to the 2004 MVA. She has always been a fairly anxious person but was never significantly restricted by this. Since the MVA she has had increased generalized anxiety, which limited her activities. This has mostly resolved but caused her great deal of worry and frustration and is due entirely to the MVA.
Her neck and shoulder should recover to 80-90% of normal. Likewise her dizziness and increased anxiety should resolve almost entirely. This will take another 2-3 years from the present time, and she will be more vulnerable to flare ups resulting from minor trauma. She may require episodic physio and/or massage. She will always have to be mindful of fitness and posture. There may be some acceleration of her neck osteoarthrosis but this is difficult to quantify. Mrs. Kurucz may have exacerbations of her anxiety and may require therapy or relaxation techniques.
b) A report from Dr. Neil Longridge, an ENT specialist retained by plaintiff’s counsel. He opined in part that:
This patient describes ongoing dizziness subsequent to an accident occurring August 20, 2004. There are documented complaints of dizziness by Dr. Laubenstein subsequent to this accident in November and December 2004, and these complaints continue on into 2005.
I have a cut off for onset of dizzy symptoms following trauma at six months. If the dizziness comes on within six months of the accident, in the absence of any other satisfactory cause, I regard the accident as the probable cause. If dizziness comes on more than six months after the accident, in the absence of any other satisfactory explanation, I regard it as a possible cause. When it is stated to be at the six months mark it becomes conjectural. I am aware that this time scale I use is empiric, however, there is some scientific support for it. I also realize that some people whose dizziness comes on at less than six months spontaneously and not related to the accident would be regarded by me as having their dizziness from the accident. Similarly, dizziness coming on at more than six months following the accident but secondary to the accident would be regarded by me as not having come on due to the accident.
During assessing this patient she did state that she had an acute episode of vertigo in the mid 90s and this is noted in your request for my opinion as one of the facts and assumptions to be aware of. This was a single acute spell of approximately 24 hours at most, which did not recur and did not give her any further symptomatology.
Subsequent to her accident 2004 there are more frequent complaints of dizziness and based on the increased frequency and the absence of any substantial need for investigation with respect to the dizzy complaints in 2003 and absence of any annotations with respect to dizziness following the accident in 2001, in my opinion the increased dizziness subsequent to the accident in 2004 is probably from the accident in 2004. My experience with dizziness is that it can be expected to improve for approximately two years after its onset and whatever remains at the end of the time is probably going to be present on a long-term, permanent basis.
(I note parenthetically that the records Dr. Longridge had indicated episodes of vertigo between 2001 (the date of the previous accident) and 2004, contrary to his suggestion above.)
c) A report from Dr. Loomer, an orthopaedic surgeon retained by defence counsel, which report did not deal with dizziness or anxiety, but concluded that Mrs. Kurucz had suffered a strain of the paracervical muscles on the left side, probably including the trapezius. He anticipated that her symptoms would persist for another year – i.e., to early 2007.
 The trial took place in September 2006 and reasons were issued in May 2007, some nine months later. They are indexed as 2007 BCSC 589. At para. 3 the trial judge noted that:
 In the years before the accident, the plaintiff suffered from occasional dizziness. Several months after the accident, she reported an episode of dizziness to her family physician, and it appears that these episodes were more frequent, and more likely to result in nausea, after the accident. She also experiences mild physical imbalance.
Under the heading “Narrative”, the trial judge noted the plaintiff’s previous accident in February 2001 in Halifax and the fact that she had experienced “frequent anxiety associated with driving and flying” and that she experienced “some periods of dizziness and associated nausea both before and after the 2001 accident (para. 7). He also noted that after the 2004 accident, she had experienced considerable anxiety and more severe dizziness than she had previously.
 Under the heading “Medical Evidence”, the trial judge noted various aspects of Dr. Longridge’s opinion and continued:
 The plaintiff did not complain of dizziness until November 2004, several months after the accident. Dr. Longridge’s criteria for relating episodes of dizziness to a traumatic event are based on the period of time between the event and the onset of dizziness. If within six months, if no other cause has intervened, he regards the event as the probable cause. Beyond six months, he regards it as a possible cause. As I understand it, these are guidelines he applies in the absence of other factors that may or may not tend to establish a causal connection between an event, such as an accident, and dizziness.
Then, at para. 19, the trial judge stated that there was “no medical evidence to suggest a causal connection between the plaintiff’s more frequent anxiety and any injuries sustained in the 2004 accident”.
 The trial judge found that Mrs. Kurucz had suffered a muscle strain to the trapezius area, thus exacerbating a previous injury. He accepted that she now experiences more dizziness than prior to the accident, but said the “first reported episode was several months after the accident”. While not accepting Dr. Longridge’s six-month cutoff for determining causation, the trial judge concluded that the evidence was not sufficient to establish a causal connection between the accident and the increase in frequency and intensity of Mrs. Kurucz’s dizziness. Had he done so, he said, he would have placed her damages at between $40,000 and $45,000; but given his findings, he awarded $15,000 in non-pecuniary damages.
 On appeal, Mr. Smith on behalf of the plaintiff contends that trial judge was simply wrong in saying there was “no medical evidence” that supported a causal connection between the accident and Mrs. Kurucz’s increased anxiety and dizziness. This ignores Dr. Laubenstein’s evidence, it is said; and as well, no reference was made to her opinion that the plaintiff would take another two to three years to recover from her soft tissue injuries. Counsel acknowledges that the trial judge was entitled not to accept Dr. Laubenstein’s evidence, but here he says it appears he simply did not consider it and may indeed have overlooked it, proceeding on the apparent assumption that Dr. Longridge’s evidence was the only medical evidence.
 I must say it is difficult to argue with his submission. Mr. Lindsay for the defendants noted that in the introductory portion of his reasons, the trial judge had made findings regarding the soft tissue injuries that may have reflected the family doctor’s report or testimony and that anxiety was referred to, although this was in connection with the plaintiff’s pre-accident condition only. The statement that there was “no medical evidence” suggesting a causal connection is simply incorrect and does amount in my view to an error or misapprehension of the evidence before the Court.
 Combined with the trial judge’s apparent failure to consider and resolve the conflicting opinions regarding the plaintiff’s prognosis and the failure to note an apparent error on Dr. Longridge’s part regarding the plaintiff’s past experience of vertigo, this misapprehension does in my view make it necessary to allow the appeal. Normally, this would mean a new trial should be ordered, but as Mr. Smith noted, in this case there were no significant credibility issues and the trial judge did state that had he found the causal connection, he would have made an award between $40,000 and $45,000. It would not make sense in these circumstances to put the parties to the expense of another trial. I would set aside the award of $15,000 in non-pecuniary damages and substitute an award of $42,000. The special damages of $480 would remain untouched.
 DONALD, J.A.: I agree.
 SAUNDERS, J.A.: I agree.
 DONALD, J.A.: The appeal is allowed. The damages are revised in accordance with the reasons given by Madam Justice Newbury.
“The Honourable Madam Justice Newbury”