Bittante v. Zichy,


2008 BCSC 728

Date: 20080606
Docket: M031278
Registry: Vancouver


Cristina Bittante



Rudolph Zichy


Before: The Honourable Madam Justice Baker

Reasons for Judgment

Counsel for the Plaintiff

Anthony A. Vecchio,
 James U. Buckley
& L. Russoli


Counsel for the Defendant

Christopher B. Doll
& J. Derek James


Date and Place of Trial:

March 5-7, 9, 12,
16, 25-29
& July 3 and 4, 2007


Vancouver , B.C.

[1]                Cristina Bittante (“Ms. Bittante”) was injured on March 16, 2001 when the motor vehicle she was driving collided with a motor vehicle driven by the defendant, Mr. Zichy.  Mr. Zichy admits that the accident was caused by his negligence.   While the defendant also concedes that Ms. Bittante suffered some injuries as a result of his negligence, he disputes the plaintiff’s allegation that the accident caused the headaches she continued to experience six years after the accident.  At issue in this trial is causation of the plaintiff’s headaches, and the quantum of damages to be awarded to compensate her for the injuries caused by the accident.

[2]                The matter is of some significance as the plaintiff alleges permanent impairment of her capacity to earn income and seeks an award of damages in excess of $900,000.  The defendant, on the other hand, responds that the plaintiff suffered only a mild soft tissue injury and submits that an award of damages of $10,000 to $20,000 only is warranted.


[3]                 Ms. Bittante was born on January 17, 1982 and was 19 years old when the accident happened, and 25 years old when the trial commenced.  She grew up in the Lower Mainland of British Columbia.   Her father is a retired police officer, who also works as an actor.  Her mother is a business development manager at a public utility company.  Ms. Bittante has one sister, Nadia Bittante (“Ms. N. Bittante”), who is two years younger than the plaintiff.   Ms. N. Bittante is attending University and hopes to become a teacher.

[4]                Ms. Bittante was a physically active and athletic child and adolescent.  She began gymnastics at age three or four, started competing by age 10 and continued until high school.  She also coached gymnastics.  In high school, Ms. Bittante played volleyball, field hockey and rugby, belonged to a ski and snowboard club, and took dance classes.  In addition to school and her sports and social activities, Ms. Bittante began working part-time at a grocery store at age 15 and later worked at a Canadian Tire store as a cashier.  She had an active social life and many friends, and was voted “Prom Queen” by her classmates in Grade 12. 

[5]                Ms. Bittante was a good student in high school, but not outstanding.  Her marks in Grade 12, disregarding a grade of 100% in “work experience”, ranged from a low of 73 to a high of 94.  Her average on graduation from high school in the spring of 2000 was about 80%.   She received some scholarships, including a “Passport to Education Award”, for which she qualified by having grades in the top 20% of her class from Grade 9 to 12 inclusive.  She received a scholarship from her mother’s employer, and also from her father’s employer.

[6]                While in high school, Ms. Bittante planned to go on to post-secondary education.  She decided to apply to Capilano College, located conveniently near Ms. Bittante’s parents’ home in North Vancouver, with the goal of eventually transferring to the Business Administration program at Simon Fraser University.  

[7]                In the summer after her high school graduation, Ms. Bittante spent seven weeks travelling around Europe.  While she was on vacation, her mother submitted her College application for her.  Ms. Bittante was accepted at Capilano College and enrolled in 4 courses.  Ms. Bittante testified that students could take a full load of five courses, but many chose not to.  During her first semester in the fall of 2000, Ms. Bittante continued to work part-time. 

[8]                In that first semester, Ms. Bittante achieved an A-, two B+, and a B.  In January 2001, after she turned 19, Ms. Bittante started working as a server at a pub.  She continued to live at home with her parents and sister.

[9]                Ms. Bittante did not testify until the eighth day of trial.  She was the only witness who had been present at the motor vehicle accident on March 16, 2001.    She had been at the gym she regularly attended and was driving home in her 1987 Chevy Nova.  As she was passing a parking lot, she noticed the defendant’s vehicle edge out of the lot and saw it begin to turn left directly across the path of her own vehicle.  Ms. Bittante anticipated the collision and had time to step on the brake and the clutch of her vehicle, shift into neutral, and to brace herself for the impact.  Although Ms. Bittante estimated that both she and Mr. Zichy were travelling at 60 kph, I consider that improbable.  Mr. Zichy was just leaving a parking lot and would not have had time to accelerate to 60 kph over such a short distance.  The fact that Ms. Bittante had time to anticipate the collision and react as she did indicate that both she and Mr. Zichy were travelling at moderate speed.  Ms. Bittante described the collision to various people as a “T-bone”, but photographs indicate that only the front left portion of Ms. Bittante’s car struck the driver’s side door and a portion of the rear driver’s side door of the defendant’s vehicle.

[10]            Ms. Bittante was restrained by her three-point seatbelt.  She testified that immediately following the collision she felt shaken up; her left arm felt numb and she was sore across her chest where she had been restrained by the chest strap of the seatbelt.   She had broken an acrylic fingernail, likely by striking it against the steering wheel, but doesn’t recall hitting any other part of her body on the interior of the vehicle.  She exited her vehicle, retrieved her registration papers and spoke to a passer-by who ran over and gave her a business card.   She approached Mr. Zichy and they exchanged driver’s licence and registration information. 

[11]            Although damaged, Ms. Bittante’s vehicle was operational and she drove her vehicle home.   Photographs of the damage to her vehicle indicate minimal damage to the left front quarter panel and a front side light.  Although the vehicle was 14 years old, Ms. Bittante’s insurer paid for the vehicle to be repaired. 

[12]            Ms. Bittante had planned to attend a social event the evening of March 16, but cancelled and went on her own to see a doctor at a walk-in clinic in North Vancouver.  Ms. Bittante had a family doctor, Dr. Squire, but had also been to the walk-in clinic on previous occasions. 

[13]            The notes made by the doctor who examined Ms. Bittante at the clinic record that Ms. Bittante reported that her left shoulder and arm hurt.  The doctor noted that Ms. Bittante’s skin was “slightly pink” across the left trapezius area and chest wall; attributed to slight early bruising.  Ms. Bittante had full range of motion in her neck.  The doctor suggested ice, rest and non-prescription aspirin; and recommended that Ms. Bittante see her own doctor. 

[14]            Ms. Bittante testified that she believes she had some bruising from the seat belt across her chest and shoulder for the next few days, but that this resolved fairly quickly.  She returned to her College courses and resumed her part-time job without missing any classes or shifts at work.  

[15]            Ms. Bittante’s sister, mother, father and her friend Katie Whibley all testified about their recall of how Ms. Bittante’s injuries affected her in the days and weeks after the accident.   Nadia Bittante had very little memory of the effect the accident had on Ms. Bittante in the days, weeks and months following the accident.  It clearly made little impression on her, which suggests that Ms. Bittante’s injuries were not perceived to be significant at the time, and that Ms. Bittante’s condition did not have much of an impact on the routine of the Bittante household. 

[16]            Nadia Bittante did recall that Ms. Bittante had massage therapy, but could not recall if it was before or after the motor vehicle accident, (it was both before and after), or what the therapy was for.  Her evidence was of little assistance in determining when Ms. Bittante’s various symptoms emerged.  She testified, for example, about Ms. Bittante being very irritable on a vacation the family took together to Mexico, but according to the plaintiff’s evidence, that vacation was in April 2004, more than three years after the motor vehicle accident.  Nadia Bittante testified that she and her sister did not speak to each other for about a year after that unfortunate vacation.

[17]            Ms. Bittante’s parents testified about the impact their daughter’s headaches have had on her, and their concern about what the future may hold for the plaintiff.  Much of their testimony about Ms. Bittante’s health problems was essentially hearsay evidence, as their knowledge of how Ms. Bittante was feeling had to have been relayed to them by her.  Understandably, given the long passage of time between the accident and the trial, their memories have faded.  I have also concluded that in the initial days, weeks and months following the accident, no one regarded Ms. Bittante’s injuries as serious, and that has affected the ability of witnesses who were not keeping notes to recall the events in the first six months after the accident.

[18]            Some of Mrs. Bittante’s evidence was inconsistent with that of the plaintiff, and inconsistent with clinical records of health professionals who have been involved in Ms. Bittante’s care.  Mrs. Bittante recalled, for example, that soon after the motor vehicle accident, Ms. Bittante would stay in her room with the lights off when she had a headache, and could not tolerate noise.   The clinical records of Ms. Bittante’s family doctor, however, indicate that when she saw Ms. Bittante on August 10, 2001, Ms. Bittante denied sensitivity to sound or light when she had headaches, and said that her headaches were not worse when she exercised.   

[19]            I conclude that it is likely that Mrs. Bittante is recalling her daughter’s condition much later, probably in late 2001 or 2002, when the plaintiff actually did develop symptoms of phonophobia and photophobia associated with her headaches.  Dr. Squire’s clinical records indicate that it was not until December 12, 2001 that Ms. Bittante reported that she often had to go to bed when she had headaches, and had developed a sensitivity to sound, although she still had no photophobia associated with her headaches.  In pointing out these inconsistencies, I am not suggesting that Mr. or Mrs. Bittante were attempting to mislead the court; rather that given the passage of time between the date of the accident and the trial, the timing and sequencing of certain events had become vague.  I consider it likely that the clinical records available are more reliable in terms of the emergence of symptoms.

[20]            Ms. Bittante did not see her own doctor, Dr. Squire, until March 30, 2001, two weeks after the accident.  In the interim, she had been to see her massage therapist twice.  Ms. Bittante had been having massage therapy regularly for some months prior to the accident and she testified that it was easier to get an appointment with her massage therapist than with her doctor.

[21]            By the time Ms. Bittante saw Dr. Squire, she had had some headaches, which she described as located in the temple area on the left side of her head.  She described the pain from these headaches in two different ways.  She said the pain felt like it was coming from the back of her head at the neck level.  However, she also described it as a feeling of “moderate pressure”; like someone was pushing really hard with a pen against her left temple.  

[22]            Ms. Bittante testified that the headaches she began to experience after the motor vehicle accident were different than headaches she had before the accident.  Various pre-accident records do document, however, that despite her young age, Ms. Bittante had had problems with headache, as well as neck and upper back pain that had persisted for more than a year prior to the March 16, 2001 accident.

[23]            On May 15, 2000, Ms. Bittante had reported to Dr. Squire’s colleague Dr. Janzen that she had been having headaches for several months.  According to Dr. Janzen’s clinical notes, Ms. Bittante described these as “tension type” headaches, with discomfort over her frontal sinuses to her temples on both sides.  She also reported she had been playing field hockey and had strained her back on one occasion with sharp twinges of pain.  She also reported that her right foot became numb if she crossed her legs.    

[24]            On examination, Dr. Janzen noted prominent paraspinal muscle spasm on the right side of Ms. Bittante’s neck, and in the area between her shoulder blades; and spasm in the lumbosacral area on the right side also.  Dr. Janzen concluded that Ms. Bittante had likely been injuring and re-injuring her back by playing field hockey.  She recommended a course of massage therapy to attempt to reduce the muscle spasm and eliminate the headaches; and suggested that Ms. Bittante stop playing field hockey if the back pain recurred. 

[25]            The note written by Dr. Janzen referring Ms. Bittante to the massage clinic stated:  “Strain of spinal ligaments with subsequent muscle spasm causing headaches – due to grass hockey.” 

[26]            The clinical records of the massage therapy clinic attended by Ms. Bittante indicate that between May 27, 2000 and December 7, 2000 Ms. Bittante received massage therapy 19 times.

[27]            The first entry, on May 27, 2000, records that Ms. Bittante was complaining of pain in her upper back and neck, with headaches.  The massage therapist’s clinical record indicates that Ms. Bittante reported that her headaches were located more on the left side than the right.  I note here that the headaches Ms. Bittante has experienced after the motor vehicle accident also tend to be on the left side of her head.

[28]            Ms. Bittante was also noted to have muscle spasm; was tight in the thromboid muscles, more on the left side than the right; and had tightness in her trapezius muscles.   The symptoms were attributed to field hockey.  Ms. Bittante received massage treatment to her full back, neck and shoulders. 

[29]            Similar findings were recorded by the massage therapist on June 1, 2000, with the addition of numbness in Ms. Bittante’s feet.  The massage therapist noted that there had been “no previous back injury”, but that Ms. Bittante had done gymnastics on and off for years. 

[30]            On June 6, 2000, Ms. Bittante reported to the massage therapist that her headaches were decreasing but she was still having numbness in her feet.  She made a similar report on June 13.  On June 19, 2000, she reported that she had had a “wicked headache last week”.  The massage therapist found she was tender in her upper back, going from the neck area to the head.    Ms. Bittante received therapy for the problems with her cervical spine and neck on June 27 and again on July 1.  On the latter date, she reported having upper back and neck pain, perhaps attributable to having “slept funny”.

[31]            On July 14, 2000, Ms. Bittante reported having had headaches due to stress.  She was planning to leave shortly on a two month trip to Europe.

[32]            Ms. Bittante returned to see the massage therapist on September 9, 2000, after returning from her backpacking holiday in Europe and continued with therapy almost weekly for the next two months.  She reported having had lots of back problems while she was on vacation, with pain in the area between her shoulder blades.  She received massage therapy to her full back, neck and shoulders.  Ms. Bittante testified that she believed these problems related to the weight of the backpack she had been carrying while on vacation.

[33]            Similar treatment was provided on September 18, and October 4, 2000.  I cannot decipher the treatment note for October 11, 2000.  On October 18, 2000, Ms. Bittante again complained of headaches.  She received massage to her back and neck on that date, on October 23, and on October 30.  On November 6, she again complained of headache.  She was treated that day, and on November 20, 27, and December 7.

[34]            The massage therapy clinic also offered the services of a kinesiologist, and in November 2000 Ms. Bittante began seeing the kinesiologist in addition to the massage therapist.  There are notes that appear to have been made by the kinesiologist when she first saw Ms. Bittante.  The notes refer to a field hockey accident.  One of the notes reads:  “had never had problems before; after hockey > headaches” and another note reads:  “has to sit and to write a lot > headaches”.  Ongoing clinical notes made by the kinesiologist note that on November 8, Ms. Bittante was described as having “big knots”.  She was given massage to the trapezius area.  On November 15 and 22, the therapist worked on Ms. Bittante’s right side.  On November 29, 2000, the therapist focused on Ms. Bittante’s left thoracic rotation.  Ms. Bittante had further treatments on December 6, 2000.  After that there was a hiatus, but Ms. Bittante returned for treatment on March 13, 2001, only two days before the accident.  On March 13, the therapist noted “big knots re:  trapezius, had pain left side also.” 

[35]            These records indicate that even before the accident, Ms. Bittante had been experiencing problems with her neck and back that were sufficiently serious to warrant frequent massage therapy treatments, and that she had headaches for a period of more than a year prior to the accident. 

[36]            Ms. Bittante saw Dr. Squire for the first time after the accident on March 30, 2001.    

[37]            Ms. Bittante told Dr. Squire about the motor vehicle accident that had occurred on March 16.   According to Dr. Squire’s clinical records, Ms. Bittante did not report that she was having neck pain.  She reported that she had developed upper thoracic pain three or four days following the accident.  Ms. Bittante told Dr. Squire that prior to the accident she had not had any thoracic back pain in the last six months.  Ms. Bittante told Dr. Squire that after having had a massage on March 21, she felt much better; and had had another massage therapy treatment on March 28. 

[38]            Dr. Squire recorded that Ms. Bittante reported having had headaches three to four times a week in the left frontal/temporal area, with moderate pain; most headaches occurring at night, and that they were usually relieved by sleeping.   Ms. Bittante told Dr. Squire she had been working as a waitress three times a week and had missed no work; had missed no College classes, and that none of her other activities had been affected by the accident injuries except that she had missed one social event the night of the accident due to severe left shoulder pain. 

[39]            Ms. Bittante reported no significant arm pain or numbness when she saw Dr. Squire, although she reported that she had had some left arm pain restricted to the day of the accident and the next day only. 

[40]            Dr. Squire found Ms. Bittante to have normal range of motion in her neck, except for a slight decrease in range on left lateral rotation.  She found no tenderness over the thoracic or cervical spin, and there were no active trigger points found on palpation.  Dr. Squire diagnosed a “resolving mild strain” and recommended no specific treatment except massage therapy; indicating that she expected a total of eight sessions would be reasonable.  No medications were prescribed.  After the visit to Dr. Squire’s office on March 30, 2001, Ms. Bittante did not return to see the doctor about her accident injuries until August, 2001. 

[41]            Ms. Bittante completed her second semester at Capilano College in the spring of 2001.  She received an A-, a B, a B- and a D.  The latter grade was in a course called Financial Accounting l. 

[42]            Ms. Bittante attributes the D grade to the effect of the accident injuries on her ability to study and to concentrate, but I am not persuaded this attribution is warranted.  By the time the accident happened on March 16, 2001, Mr. Bittante was two-thirds of the way through the semester.  She was able to achieve grades in her other courses similar to those achieved in the previous semester.   She did not miss any classes due to the accident injuries, not even in the days immediately following the accident.  Nothing is noted in Dr. Squire’s clinical records concerning a complaint by Ms. Bittante that the accident injuries were impairing her performance at school; in fact Dr. Squire’s notes indicate that Ms. Bittante reported that the accident injuries were not affecting any of Ms. Bittante’s work, school or social activities.  I consider it more probable than not that the course in which Ms. Bittante received a D was simply an anomaly - a course in which Ms. Bittante did not perform to her usual standard.

[43]            As I stated earlier, after she saw Dr. Squire on March 30, 2001, Ms. Bittante did not return to see her doctor about muscle pain or headaches until August 10, 2001.  Ms. Bittante did see Dr. Squire on June 4 and 6, 2001.  The purpose of her visits was to obtain vaccinations for a holiday she was planning, but Dr. Squire’s clinical records do not indicate that Ms. Bittante reported any problems relating to the accident injuries on those visits.   I conclude that any symptoms Ms. Bittante was experiencing through the late spring and early summer of 2001 were not sufficiently serious to lead her to seek medical attention.

[44]            That conclusion is consistent with the testimony of Ms. Bittante’s friend Katie Whibley, who also attended Capilano College.  She testified that she and Ms. Bittante had met in high school but became best friends during their first semester.  She testified that although she and Ms. Bittante were not in the same classes, they talked to each other every day, had lunch together, and went out together on weekends.  Ms. Whibley said that Ms. Bittante told her about having been in the accident on March 16, 2001 but that it didn’t seem like a big deal.  She said that later on Ms. Bittante began to complain of headaches, but I infer from her testimony that she did not perceive the headaches to be having any real impact on Ms. Bittante’s life until the two of them were on vacation together in June 2001.

[45]            Ms. Whibley testified that she and Ms. Bittante went to Bali and Hong Kong.  At first everything seemed fine, but after a few days in Bali, Ms. Bittante sometimes didn’t want to go out in the evening, complained of headaches and wanted to stay in their hotel room.  She recalled that on a couple of evenings, Ms. Bittante went back to their hotel early while Ms. Whibley carried on alone. 

[46]            However, on return from vacation Ms. Bittante did not consult Dr. Squire again until August 10, 2001 – five months after the accident and more than a month after her return from holidays.  Ms. Bittante reported to Dr. Squire on August 10 that she had had headaches in the six weeks preceding this visit.  That statement could be taken to mean that Ms. Bittante had been headache-free prior to the six weeks referred to, but I consider it more likely that Ms. Bittante was simply inaccurate in her recollection of the time frame.  She told Dr. Squire that the headaches were “mostly” in the left temporal area, with onset usually after supper.   She described the headaches as “pressure sensation, no throbbing”, the severity as seven on a scale of 10; and said that the headaches lasted several hours to a day or more.  The headaches were not accompanied by “aura”, or sensitivity to sound or light and were not worse with exercise.   Ms. Bittante did not identify any recent stresses in her life.  She remarked that she did grind her teeth.  Over the counter Tylenol and Advil did not relieve the headaches.  Ms. Bittante also reported having had some neck pain that was “occasionally severe”, but Dr. Squire’s notes do not indicate that Ms. Bittante reported the neck pain and headaches occurred simultaneously or in association with each other. 

[47]            On examination Dr. Squire found normal reflexes and sensation; no neck tenderness or spasm; and normal range of motion in the neck.  Dr. Squire found Ms. Bittante’s TMJ joint was not tender unless palpated on the upper maxilla, with which it was very tender.  Dr. Squire’s tentative diagnosis was cervicogenic headaches.  She prescribed Tylenol with codeine and an anti-inflammatory medication; and recommended that Ms. Bittante see her dentist regarding a possible TMJ problem suspected of causing the headaches. 

[48]            When Ms. Bittante returned to see Dr. Squire on August 17, 2001, she reported that she was doing much better on the prescribed medication and had had only one headache in the past week.  Dr. Squire renewed the prescription for the anti-inflammatory medication and recommended that if the symptoms recurred, Ms. Bittante should return.   Ms. Bittante did not see Dr. Squire again until mid-December, 2001.

[49]            Ms. Bittante returned to Capilano College for the fall semester in 2001.  She took four courses, and received an A, two B-, and a B+.  

[50]            After August 2001, Ms. Bittante did not return to see Dr. Squire for a further four months.  When she came in on December 12, 2001, which was nine months after the motor vehicle accident, she was reporting a problem with hives on her feet that prevented her from walking.  She also reported that she was continuing to have headaches two to three times a week, lasting six to seven hours.  On this visit, she said the headaches were in the occipital area of her head, radiating around to the front temple area.  She described the headaches as pressure-like; not throbbing.  There is no reference to neck pain or stiffness coinciding with the headaches and Dr. Squire’s notes do not indicate that the headaches were associated with, or originated with neck pain or stiffness.

[51]            Ms. Bittante reported that although the headaches continued to lack sensitivity to light; she was now experiencing phonophobia - sensitivity to sound.  She told Dr. Squire that she was quite dysfunctional when she had the headaches, and often had to go to bed.   She told Dr. Squire that she had a family history of migraine headaches and that two of her maternal aunts and her maternal grandmother had migraines.  Dr. Squire’s notes do not indicate that the headaches were associated with neck pain or stiffness.

[52]            Dr. Squire’s revised tentative diagnosis on this visit was migraine headaches.  She prescribed Maxalt for the headaches and referred Ms. Bittante for more massage therapy.  She also recommended that Ms. Bittante keep a headache diary.  She provided Ms. Bittante with a page of instructions about how and what to record, and a “Migraine Tracking Calendar”.

[53]            Although several doctors, beginning with Dr. Squire, have recommended to Ms. Bittante that she maintain a headache diary to record the occurrence, duration, and severity of her headaches, and to attempt to identity “triggers” or events or activities possibly associated with her headaches, Ms. Bittante’s compliance with these recommendations has been sporadic and with the exception of a period of six weeks in early 2003, she kept no records of events or activities that may have “triggered” or exacerbated the headaches.   

[54]            Ms. Bittante’s first attempt at keeping such a diary started nearly 10 months after the accident, and lasted only two months.  She maintained the calendar provided to her by Dr. Squire for the period December 31, 2001 to March 3, 2002, but did not record all of the information provided for on the form.  This diary indicates that Ms. Bittante did not have frequent headaches during this period – the period in closest proximity to the accident during which she kept any record of her headaches – and that the headaches were not usually severe.  In the first week of January 2001, for example, she had headache only one day, with no pain in the morning, and only “some pain” – 1 on a scale of 3 – in the afternoon and evening.  After this headache – on January 6, 2002 - she did not record another until January 15.  This was a mild headache only, and only in the evening/night period.  On January 18, Ms. Bittante had a headache that was severe in the afternoon and evening, and it continued the next morning as a 2, but was reduced to a 1 during the afternoon and evening.  She had a mild headache late in the day on January 22, and 28, and then headaches of varying severity on the 29th, 30 and 31.  She had more frequent headaches in February – on February 4, 11, 12, 13, 15 and 16, 20, 21, 25, 27 and 28.  However most of these were only 1 on a scale of 1 to 3 and most lasted less than a full day.  She recorded no headaches in the first three days of March and then ceased recording. 

[55]            Ms. Bittante completed the portion of the diary for recording possible “triggers” on only a few occasions during this period.  However, she did identify chocolate, sleeping patterns, ovulation, contraceptives, caffeine and menstruation as events possibly associated with her headaches. 

[56]            After the first three days of March, 2002, Ms. Bittante did not keep a headache diary again until February 2003.  She maintained the second diary until mid-June 2004, and then stopped recording for two weeks.  She resumed recording in July and continued until January 2004.  She omitted to record for the months of February and March 2004, and then resumed recording in April 2004 and continued, it appears, until May 11, 2005.  The record provided for the period from June 2004 to May 11, 2005 is a word-processed two-page summary that appears to have been created from original records that are not in evidence.  No attempt was made to record headache triggers during these periods.

[57]            After May 2004, Ms. Bittante discontinued her record-keeping until April 2006.  She recorded during that month and then discontinued until August 2006; recorded only sporadically in September 2006 and then resumed recording in October 2006 until February 2007.

[58]            In the record Ms. Bittante kept in February 2003, she made reference to neck pain in association with some of her headaches.  However, she did not describe the headaches as radiating from her neck to her head; rather she described the headaches as “lots of pressure & tension (usually on left side of head extending to left side of neck)”.  In her diaries she did not note any association between the occurrence or severity of her headaches and physical activity involving the muscles of her neck or upper back.   There is no reference to any association between neck pain or stiffness and headache in any other records maintained by Ms. Bittante.

[59]            From time to time, Ms. Bittante recorded efforts made by Dr. Squire, Dr. Marchanda, Dr. Robinson and Dr. Naran to attempt to give Ms. Bittante relief from headache by injecting various medications into her neck to attempt to block nerve transmissions from her neck to her head.  Generally it appears that these injections did not relieve Ms. Bittante’s headaches.  On October 24, 2006, for example, Ms. Bittante’s headache calendar indicates that Dr. Squire injected her with xylocaine.  That evening she had a headache rated 4 out of 10 on the severity scale she was then using; and the next day she had a headache that was a 6/10 in the afternoon, worsened to a 9/10 that evening and was still present as a 6/10 the next morning.   On October 31, 2006 she received another xylocaine injection from Dr. Squire.  That evening she had a headache that was rated as 2/10. 

[60]            Another example is Mr. Bittante’s note that Dr. Marchanda injected Ms. Bittante with cortisone on November 6, 2006.  This injection did seem to provide some relief – Ms. Bittante had had a headache she classed as 10/10 earlier that day and it was improved to a 7/10 by the afternoon.  However, an injection of Torodol by Dr. Robinson on November 20, 2006 did not provide relief – a headache rated 3/10 in the morning was rated as 9/10 that afternoon and was still 8/10 the next morning.   

[61]            I shall discuss the significance attributed to the inefficacy of these injections later in these Reasons.

[62]             Ms. Bittante was seen by Dr. Janzen on January 2, 2002.  She told Dr. Janzen she was having intermittent massage therapy treatment; had not tried physiotherapy, and was not involved in a regular exercise program.  Dr. Janzen recorded that Ms. Bittante was not working and was attending classes at Simon Fraser University.  She reported to Dr. Janzen that she had tenderness over the left occipital area and stiffness when she tried to turn her head to the left.  Dr. Janzen referred her for physiotherapy.

[63]            Ms. Bittante had applied for admission to the College of Business Administration at Simon Fraser University for the semester commencing January 2002, but was not accepted in that program, so instead enrolled in a General Arts program at SFU, taking only four, rather than five classes, in hopes of improving her grades and eventually gaining admission to business school.  She took four courses in the 2002 spring semester at SFU, receiving a C+, two B-, and a B.  However, her average was not high enough to gain admission to the business administration program for the fall semester.

[64]            Ms. Bittante visited Dr. Squire on April 10, 2002, 13 months after the motor vehicle accident.  She reported to Dr. Squire that she was attending physiotherapy and felt there had been significant improvement in the range of motion in her neck.  Despite this, her headaches had become worse.  They were now severe and completely incapacitating.  The Maxalt prescribed for her – a medication typically prescribed for the relief of migraine headaches – had completely relieved the headaches, but Ms. Bittante experienced unpleasant side effects and had stopped taking the Maxalt. 

[65]            Ms. Bittante testified that she actually only tried taking Maxalt once, although Dr. Squire does not appear to have been aware of this.  In any event, on April 10, 2002 Dr. Squire prescribed another migraine medication – Imitrex.

[66]            After the visit on April 10, 2002, Ms. Bittante did not see Dr. Squire for 10 months – until February 17, 2003.  This was primarily due to the fact that in April 2002 Ms. Bittante moved to London, England.   She initially planned to stay in England for four months, but changed her plans and stayed for eight months.  Two months after arriving in London, she found work as a medical secretary in a hospital and worked 35 to 40 hours a week until December 2002.  She said that if she missed work because of medical appointments she could make it up, but didn’t recall missing any significant amount of work.

[67]            Ms. Bittante found a family doctor in London, and he referred her for physiotherapy treatments.  A short note indicates she had nine treatments for “recurrent left neck stiffness/pain”.  There is no reference to headache in the note, but Ms. Bittante told Dr. Squire that she did have headaches and took a medication prescribed for her by her English doctor.

[68]            Ms. Bittante returned to Canada at the end of 2002, and returned to classes at SFU in the spring semester of 2003.  She took only three courses in hopes of raising her grade point average.  Although she returned to Canada at the end of 2002, she did not see Dr. Squire until February 17, 2003.  By this time, almost two years had passed since the motor vehicle accidence.   Ms. Bittante’s headache problems continued to worsen. 

[69]            Ms. Bittante told Dr. Squire she was now having about 10 headaches a month; most of them were now moderate to severe and lasted two days on average.  Although she found the Imitrex prescribed for her to be very helpful, she did not like the side effects.  Her headaches were always on the left side of her face, and radiated to her neck.  They were not throbbing, but she had now developed sensitivity to both light and sound, and would shut herself in her bedroom when she had a headache. 

[70]            Dr. Squire concluded that Ms. Bittante’s symptoms were becoming more typical of migraines.  She prescribed another medication, but when Ms. Bittante returned for a complete physical examination on February 28, 2003 she told Dr. Squire she had tried the new medication, but had developed “chest tightness and heavy arms” after the first dose.  She reported that she did not feel the medication had worked the second time she took it, and that it had taken four hours to be effective.  Dr. Squire found this to be inconsistent with the anticipated effect of the medication.  Ms. Bittante reported having had six headaches in the previous 10 days.

[71]            On examination, Dr. Squire found no neurological abnormalities, which she considered to be consistent with a diagnosis of primary migraine headache. 

[72]            Dr. Squire prescribed a new medication and a second medication to be taken to prevent the nausea and vomiting associated with Ms. Bittante’s headaches. 

[73]            This action was commenced on March 13, 2003.  Ms. Bittante returned to see Dr. Squire on April 29, 2003, more than two years after the motor vehicle accident.  Her headaches were now very frequent.  Although in February she said she had been having about 10 headaches a month, she now reported that she was having headaches 13 to 17 days of each month.  Another medication was prescribed to try to prevent the headaches. 

[74]            When next seen by Dr. Squire on May 21, 2003, Ms. Bittante reported that she had had “fantastic results” with the new medication, although taking it in a dose lower than is common.  She had had only three minor headaches in the previous month, and was not experiencing any side effects from the new medication.

[75]            In the three courses Ms. Bittante had taken at SFU in the spring semester of 2003, she got a C-, a C and a B+.  She decided to repeat one of the courses in summer school to raise her grade, and was able to raise the C- to a B-.  She took two other courses in the summer semester and achieved a B- and a B in those classes.

[76]            Ms. Bittante saw Dr. Squire’s colleague, Dr. Janzen, on July 4, 2003 and August 20, 2003.  Ms. Bittante reported that the most recent medication she had been prescribed was working very well, but that she sometimes needed additional treatment for her headaches. 

[77]            Dr. Squire and Ms. Bittante testified about the variety of medications that had been prescribed for Ms. Bittante over the course of the six years between the accident and trial.  In most cases, Ms. Bittante reported having experienced unpleasant side effects with almost all of the medications prescribed for her, and she often discontinued the medication after taking it only once or on a few occasions.

[78]            In July 2003, Ms. Bittante worked a few shifts as a server at a pub.   In August 2003, Ms. Bittante met the man who is now her partner, Mark Hansford, and the couple began dating seriously soon after.   At time of trial, Mr. Hansford was 27 years old.  He works as a business manager for an automotive company.

[79]            Despite Ms. Bittante’s efforts to raise her grade point average, Ms. Bittante’s application to SFU’s Business Administration program was again rejected in the summer of 2003.  By this time, Ms. Bittante had taken all the prerequisite courses available to her.  She decided not to return to university in the fall of 2003 and to find a job that would give her some business experience instead.

[80]            Ms. Bittante found a job working as an assistant to a stock broker in October 2003.    She started at a wage of $13 an hour.  Although she continued to work there, the job did not turn out to be what she expected.  There was a lot of paperwork involved; she had to get lunch for the brokers and fresh flowers for the office; and do errands.  She did not find the job mentally challenging.  However, after four months she was performing well enough that she was able to persuade her employer to give her a contract for a monthly salary and medical insurance that helped cover the cost of her medications.  She continued to have headaches, sometimes severe enough that she would have to call in sick, or leave work early, but she tried hard not to miss work. 

[81]            Ms. Bittante saw Dr. Squire on November 20, 2003.  She reported that her migraines were increasing in frequency despite the use of her medication.  She had now become very sensitive to food smells, which would often make her nauseated.  She reported having had 13 headaches in the past month.  She also reported having had increasing neck pain, but only in the previous four days.  I conclude that this indicates that most of the time, Ms. Bittante’s headaches did not occur in association with neck pain.

[82]            Ms. Bittante had gone for massage therapy a week earlier.  Dr. Squire found tenderness in the left paracervical muscles and decreased lateral rotation of the neck to the left.  Dr. Squire concluded that the neck pain was probably caused by the massage therapy she had had, and she recommended that Ms. Bittante stop the massage treatments. 

[83]            After this visit, Ms. Bittante did not see Dr. Squire again for more than a year – not until December 21, 2004. 

[84]            On December 19, 2003, however, Ms. Bittante was seen by Dr. Gordon Robinson, a specialist in neurology and headache disorders.  It is important to note that Ms. Bittante told Dr. Robinson that she suffered from migraine headaches that began within days of the accident, although she could not remember how frequently they had occurred.  She told Dr. Robinson that she had not experienced aura, had not noticed any association with foods or physical activity and her headaches; but believed that stressful circumstances, exposure to bright sunlight, small amounts of alcohol and perhaps menstruation may be associated with her migraine attacks.  She told Dr. Robinson that her maternal aunt and her grandmother had migraines. 

[85]            On examination, Dr. Robinson found full range of motion in the cervical spine, although she had tightness with left lateral rotation and complained of pain in her upper neck muscles particularly on the left.  She reported that pain was referred into frontal and temporal regions.

[86]            Dr. Robinson’s opinion was that Ms. Bittante would have improvement over the three to five years following his first examination; but that he doubted she would become headache free.

[87]            In the spring semester of 2004, Ms. Bittante took a course at SFU via distance education.  There was no examination for this course, but Ms. Bittante had to write several papers.  She got a B in the course.  In April 2004, Ms. Bittante went to Mexico for a holiday with her sister and parents.  This is the holiday I referred to earlier in these Reasons during which Ms. Bittante and her sister quarrelled.

[88]            In May 2004, while working full time as a broker’s assistant, Ms. Bittante started taking the Canadian Securities Certificate Course.  She was interested in banking and thought that the course would help her career and impress her employer.  She successfully passed the course in December 2004 on her first attempt.

[89]            Ms. Bittante and Mark Hansford moved into a condominium together in the fall of 2004 and have lived together since that time.  They plan to marry.  Mr. Hansford testified that he learned about Ms. Bittante’s headaches soon after they met in August 2003 and said that she has bad days and good days.  He was unable to identify any particular pattern to her headaches, or any events associated with their onset.  He said that sometimes Ms. Bittante can feel a headache coming on and that at other times the onset is very rapid.  He said that when they were on vacation in Cuba in January of 2007, Ms. Bittante was headache-free for the entire week.

[90]            In the first semester of 2005, Ms. Bittante took another economics course at SFU in an attempt to raise her grade point average, but she received a C in the course.  In March 2005, Ms. Bittante resigned her job and moved to a different securities firm, where she was offered a higher salary.  She felt she was still not ready to go back to school.  At this job she worked alone quite often, and could watch TV and do homework while at work.  In the fall of 2005 she took another course at SFU.  She decided that she should finish her degree in Economics in case she was unable to get into Business Administration.  By this time, she had decided she did not want to be a broker and felt that because of her health problems she would not be able to handle the demands of that type of job.    

[91]            Dr. Robinson’s prediction in December 2003 that Ms. Bittante’s headaches would gradually improve over a period of three to five years has not proved to be accurate.  If anything, Ms. Bittante’s testimony suggests her headaches have become worse over time.  Sometimes they last for days and all medications tried are ineffective.   In December 2006, shortly after she was given an injection of a nerve block by Dr. Vincent, she had a headache so severe that she went to the hospital hoping to get an injection of Demerol.

[92]            At various times, various doctors have attempted to relieve Ms. Bittante’s headaches by injecting medications into her neck that anaesthetize or “block” the nerves that are believed to transmit messages from the neck muscles to the head.  These treatments are based on the theory that Ms. Bittante’s headaches, although migrainous in nature, are “cervicogenic”, or originate in the muscles of her neck and cervical spine.  On one occasion, Ms. Bittante reported having got some temporary relief from an injection, but she testified that in general she got no relief from these injections.   

[93]            In January 2006, Ms. Bittante returned to SFU and enrolled in four courses.  She continued to take courses through the summer of 2006 and then applied and was accepted into the Business Administration program in the fall of 2006.  She did well in her first semester in the new program.  She attributed this in part to her choice of classes – choosing those that required term papers rather than examinations, so that she could work around her headaches.  She received three B and one C+ in the spring semester of 2006; an A-, two B, and a C+ in the summer semester;  and three A- and a B in the fall semester of 2006. 

[94]            When Ms. Bittante testified at trial in March 2007, she said she was expecting to graduate with her degree in Business Administration very shortly.   She intended to look for a job in marketing with an employer who would be flexible and would accommodate her headache problems.


[95]            As stated at the outset of these Reasons, the real issue in this case is whether the headaches that Ms. Bittante has experienced and is likely to continue to experience are caused by the motor vehicle accident on March 16, 2001.  The onus of establishing causation rests with the plaintiff.   The plaintiff must satisfy the court that but for the motor vehicle accident, she would not have had these headaches, or that the headaches would not have been as frequent or severe.

[96]            The parties presented opinion evidence from several medical experts – some of these were treating physicians, others had been asked to provide opinions only.  The weight to be given to the opinions depends on whether, and the extent to which the facts or assumptions relied upon as the basis for the opinions correspond with facts proved or admitted at trial.

[97]            The plaintiff relies on the expert opinion evidence of Dr. Robinson, a neurologist who specializes in headache disorders.  Dr. Robinson interviewed and examined Ms. Bittante on December 19, 2003, May 19 and August 24, 2004 and November 20, 2006.   In his first report, Dr. Robinson stated his conclusion that Ms. Bittante’s headaches have features “…consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.”  His opinion was that if the accident had not occurred, Ms. Bittante would not have developed headaches more severe than the headaches she had experienced prior to the motor vehicle accident.  His opinion was that it was probable that she would continue to have headaches for many years to come; that treatments he suggested could reduce her disability; and that it was also possible that she would improve over the next three to five years.   

[98]            The difficulty with Dr. Robinson’s first report is that he did not explain why he believed that Ms. Bittante’s headaches were the result of trauma, rather than the spontaneous onset of migraine headaches, other than to state that “Headaches related to her neck injury has been present from the outset.”  Dr. Robinson seems also to have relied on Ms. Bittante’s description of her post-accident headaches as “distinct in character” from the headaches she experienced before the accident.

[99]            Having heard Dr. Robinson testify, it appears that he continues to base his opinion primarily on his understanding of the proximate relationship between the accident and the onset of Ms. Bittante’s headache symptoms.

[100]        In his second opinion letter, Dr. Robinson elaborated somewhat on his views about Ms. Bittante’s pre-accident headaches.  He stated that he believes that it is probable that the pre-accident headaches were caused by what he describes as “…her long-standing temporomandibular joint dysfunction…”  In reference to that opinion, however, I note that that diagnosis was not accepted prior to the motor vehicle accident, and it was ruled out by investigations initiated by Dr. Squire after the accident.  Dr. Robinson’s other possible explanation for the pre-accident headaches is that they may have been “… occasional myofascial symptoms relating to playing sports.”  Dr.  Robinson stated that he does not believe Ms. Bittante’s pre-accident headaches would have worsened if the accident had not occurred, but he does not state any rationale for this belief. 

[101]        In his November 20, 2006 opinion letter, Dr. Robinson stated that he believes it is probable that Ms. Bittante’s condition will remain unchanged indefinitely and that she will have at least mild to moderate headache on a majority of days, with occasional pain severe enough to require a period of rest. 

[102]        Ms. Bittante was also referred by her counsel to Dr. Ansel Chu, a specialist in physical medicine and rehabilitation.  Dr. Chu examined and interviewed Ms. Bittante on November 3, 2006.  Dr. Chu’s opinion was based, in part, on information provided to him that Ms. Bittante’s headaches “…are almost exclusively related to flare-ups of the left upper mechanical pain in her neck”, and he seems to assume that neck pain had been identified as a specific trigger for Ms. Bittante’s headaches. 

[103]        Ms. Bittante told Dr. Chu that she has “…ongoing continuous left upper neck pain which can flare up to be severe at times triggering the headaches.”  Dr. Chu recorded that Ms. Bittante told him that she only gets headaches when her left upper neck pain gets worse.  This information is not borne out, however, by the clinical records of Dr. Squire; in particular, the information recorded by Dr. Squire that was provided by Ms. Bittante.

[104]        Dr. Chu regarded Ms. Bittante’s pre-accident headaches as cervicogenic also, but he believed they were most likely muscle tension headaches, rather than mechanical neck pain induced headaches.  He was evidently told that the pre-accident headaches “…went away after she stopped her field hockey playing” and he concluded that the pre-accident headaches were the result of a “…transient sprain/strain to her neck…”  In this regard, Dr. Chu relied on a report from Dr. Squires that Ms. Bittante had not had any neck pain or headaches for six months prior to the motor vehicle accident.  This report was inaccurate, as Ms. Bittante had been receiving massage therapy for her headaches and back pain as recently as two days prior to the accident.

[105]        Dr. Chu’s opinion was that “…it seems to me that the motor vehicle accident is the direct cause of the mechanical left upper neck pain.  This in turn is the cause of her secondary cervicogenic headaches.”  He opined that the mechanism of pain was an injury to the facet joints as a result of hyperextension of the neck, resulting in chronic mechanical pain. 

[106]        Dr. Squire shared Dr. Chu’s opinion that Ms. Bittante suffered an injury to the facet joint as a result of the motor vehicle accident, and that the facet joint has been the trigger for her headaches.  She described the headaches as “primarily cervicogenic with migrainous features”. 

[107]        Ms. Bittante also consulted and was treated by Dr. Vincent, a specialist in Anaesthesiology and Interventional Pain Management.  Dr. Vincent is one of only a handful of physicians in British Columbia who treats headache with anaesthetic injections using a fluoroscope to accurately target the injections.  Dr. Vincent testified for the plaintiff, but his evidence, particularly the testimony he gave in cross-examination, supports the defendant’s position that Ms. Bittante’s current headaches are not cervicogenic in nature, and do not originate in the muscles or nerves of her neck. 

[108]        Although in his report and in his evidence in chief, Dr. Vincent stated his opinion to be that Ms. Bittante’s headaches are related to an injury to her neck; he largely resiled from that opinion in cross-examination.    Dr. Vincent injected anaesthetic medications into Ms. Bittante’s neck on two occasions, using a fluoroscope to accurately pinpoint the injections.  The theory behind this method of treatment is that injury to the structure of the neck – possibly to a structure called the “facet joints” – causes pain to be transmitted to the head through the trigeminal nerve, resulting in headache that resembles a migraine, but is actually cervicogenic. 

[109]        One statement of this theory was put to Dr. Vincent and largely adopted by him.  It comes from an article in the Clinical Journal of Pain, written by Dr. Nikolai Bogduk, acknowledged by Dr. Vincent and other expert witnesses to be the authority in this somewhat controversial area of medicine.  In his article titled “International Spinal Injection Society Guidelines for the Performance of Spinal Injection Procedures:  Part 1:  Zygaphophysial Joint Blocks”, Dr. Bogduk stated the following Principles:

Blocks of a zygapophysial joint can be performed to test the hypothesis that the target joint is the source of a patient’s pain.  The hypothesis is tested by anaesthetising the target joint.  Provocation of pain from a joint is an unreliable criterion.  Relief of pain is the essential criterion.

I diverge here to note that Dr. Vincent stated that it is sufficient if the patient has a 50% of greater relief from pain.  Returning to Dr. Bogduk’s Principles:

Zygapophysial joints can be anaesthetised either with intra-articular injections of local anaesthetic or by anaesthetising the medial branches of the doral rami that innervate the target joint.  If pain is not relieved, the joint cannot be considered the source of pain, whereupon a new hypothesis about the source of pain is required. 

[110]        Based on Dr. Vincent’s elaboration of Dr. Bogduk’s theory, if the injections, correctly administered, relieve the patient’s headache, or reduce its severity by at least 50%, it can be concluded that the probable cause of the headache originates in the facet joints, or cervical spinal area.  If the injections, correctly administered, do not relieve the headache, the headaches are likely not cervicogenic in nature.

[111]        Neither of the injections of two different anaesthetics administered into Ms. Bittante’s neck relieved her headaches.   In fact, Ms. Bittante suffered an aggravation of her headache on both occasions after she was treated by Dr. Vincent.  On one of these occasions the exacerbation was so severe that she sought treatment at hospital.   These results, Dr. Vincent agreed, are inconsistent with a causal relationship between an injury to the structures of the neck and the headaches Ms. Bittante experiences. 

[112]        In particular, on April 10, 2006, Dr. Vincent injected an anaesthetic into the left C3 and C4 medial branch of the facet joints in Ms. Bittante’s neck.  He described her response by saying that she “... did achieve a marginal local anaesthetic response with no long term benefits”.   

[113]        Ms. Bittante reported and recorded, however, that the day after she was treated by Dr. Vincent, she experienced a headache that was 7 in severity on a scale of 1 to 10.   She had headache every day for the next 10 days following Dr. Vincent’s injections into the facet joints – on five of those days she rated the pain as 7/10 or  worse.

[114]        Dr. Vincent repeated the injections with a different medication on December 7, 2006.  Again, Ms. Bittante received no relief.  Her headache got worse as that day wore on, and three days later, on December 10, 2006, she had a headache so severe – 10/10 by the evening - that she was taken to the emergency department of the hospital near her parents’ home.    

[115]        These results, Dr. Vincent agreed, are inconsistent with a causal relationship between an injury to the structures of the neck and the headaches Ms. Bittante experiences.

[116]        Dr. Michael Jones testified as an expert on behalf of the defendant.  He is a neurologist.   He disagreed with the opinions of the plaintiff’s experts, in particular, Drs. Robinson and Chu.  His opinion is that Ms. Bittante’s headaches are true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine.

[117]        Dr. Jones elicited no physical findings of neck injury during his examination of Ms. Bittante.  He noted that Dr. Robinson had not consistently elicited pain radiating into Ms. Bittante’s head by palpating her neck and considered an inconsistent result of this kind to be inconsistent with cervicogenic headache.  He pointed to Dr. Chu’s report that by palpating Ms. Bittante’s neck he could produce neck pain, but not an increase in headache pain.

[118]        Dr. Jones pointed to the absence of any evidence of an ongoing physical injury to Ms. Bittante’s neck muscles in the clinical records or the records of the examinations performed by the plaintiff’s treating physicians and experts.  His view is that the suggestion that the headaches originate with an injury to a facet joint is speculative and that this theory has not yet achieved widespread scientific acceptance.  He pointed out that if Ms. Bittante’s headaches originate in her neck, then her headaches would be precipitated by activity and relieved by rest, but the clinical records reveal no evidence of this pattern.  He pointed out that In Dr. Chu’s report, Dr. Chu stated that Mr. Bittante’s said she could do all sorts of physical activities without causing her neck pain to flare up, or precipitating headaches.  In Dr. Jones’ opinion, the fact that neither stress nor neck movements result in headache contradicts Dr. Chu’s opinion that Ms. Bittante’s headaches originate with a mechanical problem in her neck.

[119]        Although Dr. Jones agreed that relieving headache pain with certain medications is not diagnostic of migraine, he did note that Ms. Bittante’s reaction to the various medications she was prescribed has been consistent with the reaction of patients who have migraine that is unrelated to trauma.

[120]        Dr. Jones noted the failure of Dr. Vincent’s injections to Mr. Bittante’s neck to relieve her headaches, suggesting to him that the origin of the headache was not the facet joints.

[121]        Dr. Jones considered Ms. Bittante’s assertion that her headaches are associated with discomfort in her neck.  He pointed to the scientific literature and his experience that patients with migraine often report pain radiating from the head into the neck.  He referred to one 2002 study that reported that 60% of migraine patients studied had neck discomfort before the onset of a migraine, and 90% had neck discomfort during a migraine headache. 

[122]        Dr. Jones noted that Ms. Bittante’s headaches are intermittent – like those of true migraine sufferers, while in his experience, patients with cervicogenic headaches have chronic and continuous headache.  He described Dr. Squire’s theory - that if you develop headache, it increases in frequency because it lowers the patient’s threshold for developing the next headache – as conjectural and said there is no support in the literature or research for her theory. 

[123]        Dr. Jones noted that Ms. Bittante had normal range of motion in her neck when examined on the day of the accident, and when seen by Dr. Squire a couple of weeks later.  When Dr. Squire first diagnosed Ms. Bittante’s headaches as migraines – on December 12, 2001 – she made no note of any report of neck problems.    In Dr. Jones’ view, the symptoms of migraine did not emerge until late 2001 or early 2002.  Accordingly, he says that the criteria for post-traumatic migraine is not met, because one of the criteria for that diagnosis is that the symptoms of migraine must appear within seven days after the traumatic event.  In this regard, Dr. Jones had modified his original opinion that the motor vehicle accident may have caused Ms. Bittante to start to experience migraine headaches earlier than she otherwise might have.  He said that a closer review of Dr. Squire’s clinical records had led him to understand that the characteristics that caused a diagnosis of migraine had not emerged until approximately nine months after the motor vehicle accident. 

[124]        Dr. Jones testified that primary migraine headache is likely vascular in origin.   

[125]        He said that it is very common for individuals to develop migraine headache around the age that Ms. Bittante was when her headaches began; and both he and Dr. Robinson testified that about 20 to 30% of all women have migraine headaches.  He pointed to Ms. Bittante’s family history of migraine and the fact that there appears to be a genetic predisposition to migraine, although many sufferers, including himself, have no family history of migraine. 

[126]        The various experts were referred to many articles.  In particular, several were referred to lengthy passages from the “The International Classification of Headache Disorders”, Second Edition; published in Cephalalgia, An International Journal of Headache.  This classification was published by the Headache Classification Subcommittee of the International Headache Society.  This classification supports Dr. Jones’ evidence that a diagnosis of post-traumatic migraine requires that the symptoms of migraine headache manifest within seven days after the traumatic event.  Dr. Jones testified that the symptoms of migraine – sensitivity to light and sound, nausea, et cetera, did not manifest themselves in Ms. Bittante’s case until many months after the motor vehicle accident.

[127]        In general, I preferred the testimony of Dr. Jones to that of Dr. Robinson and Dr. Chu.  He was able to explain his reasoning fully.  He admitted to having initially misread some of Dr. Squire’s notes, but explained the change in his opinion after a careful reconsideration of the notes.   Dr. Robinson seemed to base his opinion primarily on his view that Ms. Bittante began to experience headaches right after the motor vehicle accident that were different than those she had before the accident.  I am satisfied, however, that he did not have all of the information about Ms. Bittante’s pre-accident medical problems.  As a physician, he accepted Ms. Bittante’s description of her condition before and after the trauma.  As a judge, I must assess her testimony more carefully. 

[128]        To a certain extent, Dr. Chu and Dr. Robinson had different theories about the possible causal relationship between the accident and Ms. Bittante’s subsequent development of headaches with migrainous features.  Both appeared, however, to believe that Ms. Bittante’s headaches were usually associated with flare-ups of neck pain.  The evidence and the clinical records do not demonstrate this relationship; and in fact contradict it.


[129]        I have not attempted, in the brief summary of the expert evidence set out above, to reproduce the entire testimony of the experts, in particular, their testimony in relation to the scientific literature to which they were referred.

[130]        Having carefully considered all of the testimony of the experts, the other witnesses, and in particular, the testimony of Ms. Bittante, I am satisfied that the motor vehicle accident did cause an exacerbation of the headaches that Ms. Bittante had been experiencing in the year prior to the accident.  I am also of the view, however, that those headaches had largely resolved, and Ms. Bittante had returned to her pre-accident state of health, within approximately 10 months following the accident.  I conclude that in late 2001 and early 2002, Ms. Bittante began to experience migraine headaches that arose spontaneously, and that it is more probable than not that she would have had the headaches that she has been experiencing since early 2002 even if the accident had not happened.  In other words, Ms. Bittante has failed to prove, on a balance of probabilities, that the headaches she continues to experience are caused by injuries received in the motor vehicle accident on March 16, 2001.  

[131]        To the extent I can summarize the most important of the factors I have taken into account in reaching these conclusions, they are as follows: 1. Ms. Bittante was not an entirely persuasive witness, and there were problems with some aspects of her testimony.  Although she was adamant that the headaches she had after the motor vehicle accident were different than the headaches she had before, she was vague about the headaches she had before; and appeared to be attempting to minimize the severity of her pre-accident symptoms.  She disagreed with information recorded by almost all of the doctors in their clinical records and reports.  In the case of Dr. Jones, she denied having provided much of the information he recorded in his records.    

[132]        Dr. Vincent recorded that Ms. Bittante told him she had had no history of headaches before the motor vehicle accident.  This clearly was not accurate.

[133]        Ms. Bittante gave answers at trial that were inconsistent with answers she had given on examination for discovery.  The answers given on discovery tended to suggest that her migraine headaches did not develop right after the motor vehicle accident but came on gradually.  At trial, her evidence suggested that the migraines started right after the accident.  In her evidence at trial, she also appeared to be attempting to minimize the symptoms consistent with migraine headache, and suggested that bright lights did not aggravate her headaches, but that she simply liked to be in the dark when she has a headache. 

[134]        These inconsistencies suggest that Ms. Bittante’s present recall of her symptoms in the days, weeks and months immediately following the accident is unreliable.    Her testimony about the severity of her symptoms is inconsistent with her reports to Dr. Squire, the infrequency of her visits to her doctor, and the lack of impact her injuries had on her activities – school, work, and social – in the weeks and months after the accident.

[135]        Her reports that her headaches always coincided with flare-ups of neck pain are also inconsistent with the clinical records.

[136]        2.         The motor vehicle accident did not involve a major impact.   Although Ms. Bittante is reported to have said that the vehicles were travelling at a speed of 60 kph at impact, I consider this highly unlikely.  The defendant’s vehicle had just pulled out of a parking lot and is therefore unlikely to have accelerated to 60 kph.  The plaintiff anticipated the impact and had time to respond by braking, stepping on the clutch and bracing for impact.  Those actions suggest that the impact did not occur at high speed.  Photographs indicate that Ms. Bittante’s vehicle received minimal damage.  She was able to get out of the vehicle right after the collision and she was able to drive home after exchanging information with the other driver and a bystander/witness.   Neither driver thought the matter serious enough to call the police or an ambulance. 

[137]        While the severity (or lack thereof) of a collision does not directly correlate with injuries to the vehicle occupants, it is a factor that can be considered when the claimed results of a minimal impact appear to be so disproportional to the likely forces involved in the impact.

[138]        3.         When seen by a physician on the evening of the day of the accident, Ms. Bittante had full range of motion in her neck.  Although it is true that it sometimes takes a day or two for an injury to produce muscle stiffness, the evidence indicates that Ms. Bittante was able to return to classes without missing any school; work as a server in a pub without missing any work; and participate in her usual social activities in the days and weeks immediately after the accident.  She did not consult her family doctor for two weeks after the collision, suggesting that discomfort from her injuries was not significant enough for her to seek earlier medical intervention.    Although I accept that the plaintiff was having some headaches during the weeks and months after the motor vehicle accident, these appear to have been much milder than those she developed in late 2001 and early 2002 and has suffered from on an increasing basis since. 

[139]        Ms. Bittante’s best friend, Ms. Whibley, has no recall of the plaintiff’s injuries having an impact on her life from March 16 until their holiday in June 2001, despite the fact that the two friends saw or spoke to each other daily and socialized often.  It is clear that Ms. Bittante’s headaches were not debilitating during this period.

[140]        4.         When Ms. Bittante saw Dr. Squire two weeks after the accident, she did not complain of neck pain; her complaint was of upper thoracic pain.  Dr. Squire found normal range of motion, and no tenderness or trigger points in the neck.  She did diagnose strain to the upper back and neck, but described it as “mild”.   Although Ms. Bittante was reporting headache, she had been suffering from headaches before the accident, as well as neck and back pain, for which she had been having massage therapy treatments for 10 months.

[141]        5.         Although Ms. Bittante reported headaches to Dr. Squire on subsequent visits, the clinical records do not record any reports of the headaches coinciding with or being associated with the neck pain.  In other words, neither Dr. Squire nor Ms. Bittante reported that the headaches occurred when Mr. Bittante was having neck pain; or that the severity of her headaches was related in any way to the severity of her neck discomfort.  On August 10, 2001, Dr. Squire found normal range of motion in the cervical spine, and was unable to palpate any neck tenderness or spasm.  At this point, Dr. Squire thought it only “possible” that the headaches were cervicogenic.

[142]        6.         In January 2002, Ms. Bittante started seeing a physiotherapist.  On January 15, she completed a “Neck Disability Index Questionnaire” provided to her by her physiotherapist.  Under the heading “Pain Intensity”, she checked off the statement, “The pain is very mild at the moment” and wrote the word “stiffness” underneath that statement.  She agreed with the statement that she could lift heavy weight without extra pain, and that she would read as much as she wanted with no pain in her neck, and that she could concentrate fully when she wanted with slight difficulty.  She indicated she could do as much work as she wanted, could drive her car without any neck pain, had no trouble sleeping, was able to engage in all recreational activities with no neck pain at all, and rated the severity of her neck pain as “1” on a scale of 1 to 10.  When asked to choose a statement about headaches, however, she chose “I have severe headaches which come frequently”.   The answers given by Ms. Bittante to this questionnaire indicate that there was no relationship between her neck symptoms and her headaches.

[143]        7.         When Dr. Squire saw Ms. Bittante on August 10, 2002, she concluded that there had been significant improvement in Ms. Bittante’s neck problem, but the headaches had become much worse and were now severe and completely impairing.  This report causes me significant doubt about the alleged causal relationship between the neck strain and the headaches.  In general, if the headaches originated with the neck injury, one would expect the headaches to improve, or at least not to worsen as the neck strain resolved.  In Ms. Bittante’s case, the headaches have become more frequent and severe as time has elapsed. 

[144]        8.         The symptoms associated with the headaches have changed and increased, over time – at first Ms. Bittante was not sensitive to either light or sound, but over time developed sensitivity to both; as well as nausea, and other symptoms typically associated with migraine headache.  The frequency, duration and severity of the headaches also increased over time.  For example, Ms. Bittante testified that her headaches were worse for a period of several months late in 2006 – more than five years after the accident.   This pattern is inconsistent with a causal relationship between a mild strain to the neck muscles and the headaches.   

[145]        9.         The fact that headache could sometimes, but not consistently, be produced by pressing on Ms. Bittante’s neck belies the suggestion that it is cervicogenic.  Dr. Chu, for example, found he could induce neck pain, but that doing so did not make Ms. Bittante’s headache worse, and palpating the facet area did not cause pain to radiate into her head or eye.

[146]        10.       The negative response to injections of various kinds suggests that the headaches are not cervicogenic.  In particular, the fact that the injections administered by Dr. Vincent failed to provide relief weighs against the theory that the headaches are cervicogenic.   I note that Dr. Squire recorded that Imitrex injections in October 2006 provided absolutely no benefit and had no effect on the migraine headaches.  Trigger point injections done to the interspinous ligament at C7, T2 and T4, as well as to trigger points in the left rhomboid, trapezius, splenius capitis muscles, and left lateral occipital nerve made no difference to Ms. Bittante’s migraine headaches.

[147]        11.       The headaches appear unrelated to activities that would tend to aggravate the neck.  Ms. Bittante identified no relationship between physical activities and the onset or severity of headache.   She has taken several long trips by air – to Bali, to England, South Africa and Cuba – since the accident.  These long trips might be expected to cause neck pain and strain, and induce headache, if the headache is related to the neck injury.  Ms. Bittante did not report an increase in headache during or immediately following these flights.  Ms. Whibley testified that the headaches Ms. Bittante had in Bali did not start until a few days after they arrived there.  Ms. Bittante testified that on the flight to South Africa she was even able to study for exams. 

[148]        She and her partner testified that while in Cuba she had no headaches at all.

[149]        12.       Many migraine sufferers have one-sided headache, as Ms. Bittante does, so the fact that her headaches are on the left side does not prove cervicogenic headache.

[150]        13.       Many migraine sufferers have neck pain associated with migraine headaches, although no history of trauma.  Of the few reports that associate Ms. Bittante’s headache with corresponding neck pain (Dr. Naran’s clinical record, for example), the reports suggest that the pain radiated from the head to the neck and not the reverse.

[151]        For the reasons summarized above, I am of the view that Ms. Bittante has failed to prove, on a balance of probabilities that the headaches she has experienced since early 2002 are caused by the motor vehicle accident.   I consider it to be probable that the accident initially exacerbated the problem with headaches she had been experiencing for the previous year, that exacerbation had largely been resolved within a year.  I conclude that the headaches that Ms. Bittante currently has, and has had since early 2002, are primary migraine headaches that she would have developed in any event.  The fact that the headaches have worsened over time, with increased symptoms, frequency, duration and severity, support this conclusion.   I note that in the weeks and months right after the accident, when the injuries would be expected to be most severe, the people closest to Ms. Bittante do not appear to recall the symptoms to be as noticeable as they later were.  Mrs. Bittante testified, for example, that the family became more aware over time of the severity and frequency of Ms. Bittante’s headaches – testimony that suggests the symptoms worsened rather than improved.    

[152]        The defendant does not dispute that Ms. Bittante had an exacerbation of her headaches after the accident that are causally related to the accident.  She had  bruising to her chest and left shoulder (Dr. Squire described it as “severe” on the night of the accident) as a result of having been restrained by her vehicle seatbelt.  This discomfort resolved fairly quickly.  She had thoracic back pain and some neck pain and continues to have occasional episodes of neck pain.  These are not debilitating, but do cause discomfort and interfere with Ms. Bittante’s enjoyment of life.     

[153]        I am not persuaded that Ms. Bittante’s academic performance in the balance of the 2001 spring semester, or any subsequent semester was adversely affected by the symptoms from the accident injuries.  None of the injuries caused by the motor vehicle accident have incapacitated Ms. Bittante and she has lost no work as a result of the accident injuries.  I am also not persuaded that the accident injuries prevented her from pursuing her education and achieving her educational goals as quickly as she had intended.   

[154]        I have already said that in my view, the headaches she has experienced since early 2002 have not been shown to be caused by the motor vehicle accident, and it is primarily those headaches that have affected her ability to perform to her satisfaction at university.

[155]        The accident injuries did, however, interfere with Ms. Bittante’s enjoyment of life.  In particular, during her holiday with Ms. Whidbey in June 2001, Ms. Bittante’s injuries interfered with her enjoyment of some aspects of her holiday.  She was not able to enjoy late nights out with her friend as she had expected.   

[156]        The plaintiff has not proved any past loss of income caused by the accident injuries, and has not established that the injuries have impaired her capacity to earn income in future.  To the extent that her career opportunities are limited, they are limited by her migraine headaches, which I have concluded have not been shown to be caused by the accident.


[157]        The plaintiff has not established entitlement to damages for past loss of income, future loss of the capacity to earn income, or that she will require future care as a result of the accident injuries.  She is entitled to an award for special damages and for general damages.


[158]        The plaintiff is seeking an award of $11,000 in special damages from the date of the accident to close of trial.  Because of the manner of presentation of the evidence of special damages, it is not possible to calculate the damages for a specific period.  In relation to the summary of mileage, for example, the plaintiff presented a schedule indicating the number of visits to various medical practitioners, but not the specific dates related to those visits. 

[159]        I am going to provide the following directions to counsel in the hope that they will be able to agree on the quantum of special damages.  In the event they are unable to do so, they may provide further submissions in writing regarding the issue of quantum and I shall provide further Reasons.

[160]        The plaintiff is entitled to be reimbursed for the payments she made for massage therapy, physiotherapy, and acupuncture for the period of one year after the motor vehicle accident, or until March 16, 2002.  She is also entitled to be reimbursed for medications prescribed for her, or purchased over the counter by her for the same period.  I have already said that I have concluded that by the end of 2001 or early 2002, her headache symptoms were largely the result of the development of primary migraines not related to the accident.  However, there was probably some overlap of symptoms resulting from the motor vehicle accident that continued during the first part of 2002, and the plaintiff should be compensated for out-of-pocket expenses during this period. 

[161]        It follows that the plaintiff is entitled to be reimbursed for mileage expenses incurred during the one year period as well.  If there are other expenses included in the special damages brief that were incurred up to March 16, 2002, the plaintiff is also entitled to recover these amounts.


[162]        I have already noted that following the accident, Ms. Bittante had pain in her left shoulder, and bruising across her shoulder and chest.  She had thoracic pain and neck pain.  She missed a social engagement the evening of the accident.  The neck pain and headaches interfered with her enjoyment of her holiday in Bali.  She had an exacerbation of her pre-accident headaches, and neck and back problems, that continued for perhaps a year after the accident.  She has had occasional episodes or flare-ups of neck pain in the subsequent five years, continuing to date of trial. 

[163]        I am satisfied that while she might have had some neck and back problems in any event, it is probable that the mild strain she experienced in the accident has contributed to those symptoms.

[164]        Because the trial focused on Ms. Bittante’s headaches and the impact those headaches have had on her life, the evidence was less complete than might be hoped with respect to the impact the neck symptoms have had.  I am satisfied that the neck symptoms alone have not been debilitating or incapacitating, but they have contributed to a loss of enjoyment of life.  I conclude that it is likely that she will have occasional episodes of neck pain in future resulting from or contributed to by the accident injuries. 

[165]        Ms. Bittante testified that the combination of health problems she has had have contributed to the adoption of a more sedentary lifestyle.  She has also experienced weight gain that has had an impact on her self-esteem and her confidence.  She leads a less active social life than she once did.  While that is primarily the result of her migraine headaches, and the unpredictability of those headaches, I am satisfied that her occasional symptoms of neck discomfort have sometimes contributed to her lack of interest in social gatherings.   

[166]        I award Ms. Bittante the sum of $45,000 for general damages.


[167]        Counsel for the plaintiff submitted that costs should follow the event and I see no reason why the plaintiff should not have her costs, on Scale B.  If there are factors not previously brought to the court’s attention that should be taken into account in award costs – offers of settlement for example – and counsel are unable to agree on the effect such factors should have on the award of costs, counsel may arrange with the Registry to make oral submissions, or may submit written submissions.  

“W.G. Baker J.”