IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Rodgers v. Floercke, |
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2008 BCSC 874 |
Date: 20080704
Docket: M92301
Registry: New Westminster
Between:
Lindsay Anne Rodgers
Plaintiff
And
Viktor
Viktorovitch Floercke
Lawrence Raymond Laronde
Defendants
Before: The Honourable Mr. Justice Myers
Reasons for Judgment
| Counsel for the Plaintiff: |
L.R.E. Taneda
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| Counsel for the Defendants: |
J.K. Lamb |
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Date and Place of Trial: |
June 2 – 5; 20, 2008 |
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Vancouver and New Westminster, B.C. |
[1] The plaintiff, who is 24 years old, was involved in three motor accidents: April 2002; June 2003; and January 2006. This action involves the second accident only. Liability was admitted for that accident and it remains for me to assess damages.
[2] Mr. Floercke was the driver of the vehicle in the second accident; Mr. Laronde was the owner. For ease of reference I will refer to them in the singular as the defendant.
[3] An MRI done in May 2006 determined that the plaintiff had a ruptured disc. The main issue is whether the ruptured disc was caused by the first or the second accident; the defendant does not take the position that third accident caused the disc injury.
[4] Although only the second accident is involved, it will be necessary to discuss the other accidents in order to determine the issue of causation.
[5] Prior to the first accident the plaintiff was in grade 12, living at home with her mother. She was an athletic woman, involved in track, basketball and volleyball. She was on a gold level soccer team. The plaintiff was also involved in a number of other extra-curricular activities and did snowboarding and wakeboarding. The plaintiff worked part-time as a cashier at Kin’s Farm Market.
[6] The first accident occurred on April 20, 2002. The plaintiff was driving when the right rear quarter of her vehicle was struck by a Camaro that was fleeing a police cruiser. The impact spun the plaintiff’s vehicle 180 degrees.
[7] Immediately after the accident, the plaintiff went to Langley Memorial Hospital where she was examined and released. It was recommended that she take Tylenol for pain.
[8] Three days after the accident, the plaintiff went to the Glover Road Medical Clinic because she was experiencing low back pain and posterior neck pain. Her back pain was worse on the right side than the left. She was diagnosed with a soft tissue injury of the neck and back. On the advice of the clinic she took a week off work.
[9] On April 25, 2002, the plaintiff saw her family doctor, Dr. Stepney. Dr.Stepney noted that the plaintiff had reduced range of motion and tenderness in her neck. She had reduced flexion and tenderness in her lumbar spine. Dr. Stepney diagnosed level 2 (out of 3) neck and back injuries.
[10] The plaintiff went to a chiropractor four, times before returning to Dr. Stepney on May 16, 2002 to complain of muscle tenderness. Dr. Stepney referred the plaintiff to a physiotherapist to increase her muscle tone and strength. The plaintiff did not go to the physiotherapist; she did go to see her chiropractor several times.
[11] The plaintiff did not miss any school as a result of the accident (it occurred approximately two months before her graduation). She was able to return to work at Kin’s Farm Market. In the summer she began work at a gas station two days a week, in addition to her work at Kin’s. She pumped gas, checked the oil in customers’ cars, did general clean-up work and took the garbage out. She said she tried not to lift heavy things, but otherwise did everything the job required.
[12] In the fall of 2002 the plaintiff began a B.Ed. programme at Simon Fraser University.
[13] The plaintiff did not re-join a soccer team after the first accident. She decided to take a year off because of her back. However, she was able to snowboard and bought a season pass for Mount Seymour.
[14] The second accident occurred on June 14, 2003. As I mentioned, this accident is the only subject of this lawsuit.
[15] The plaintiff was a passenger sitting in the middle rear seat of her friend’s Chevrolet Tahoe. The car was rear-ended by the defendant Mr. Floercke when it was stopped in traffic coming down a hill from the Saltspring Island ferry terminal.
[16] The plaintiff’s body did not hit any part of the vehicle.
[17] Although there was some evidence of the physical damage to the vehicles, the distance between them after the accident and the cost of repair, that evidence was of little or no assistance without the interpretation of an expert. I will therefore not summarise that evidence here.
[18] After the second accident, the plaintiff and her friends drove to the police station to report the accident. They then went to the local hospital and the plaintiff complained of pain in her lower back and her right hip.
[19] The following day – a Sunday – the plaintiff slept in and woke up feeling “pretty sore”. She reported late to work at the gas station. She left work early.
[20] On Monday the plaintiff went to the Glover Road Medical Clinic and complained of low back pain and neck pain. She was told not to do any heavy work and for the following week did as little as possible. She felt like she was getting worse over that week.
[21] On June 21, 2003, the plaintiff returned to the Glover Road Medical Clinic complaining of pain shooting down her left leg to her knee. The plaintiff did not initially recall this pain of her own accord; rather, her memory was refreshed by the Glover Road Medical Clinic records, which she reviewed in preparation for trial. The plaintiff said that the leg pain lasted one day. She did not initially tell Dr. Stepney or the physiatrist she saw later – Dr. Chu – about that brief interval of leg pain.
[22] The plaintiff went for physiotherapy over the summer. She said the first few sessions caused her condition to improve. In addition, she went for chiropractic treatment. At the last two of those visits she reported that she was feeling better.
[23] The plaintiff did not participate in organised soccer over the summer, but did “kick a ball around”.
[24] In August the plaintiff took a road trip to California with friends. She said she could not hold her head up without pain unless it was supported. Therefore she was unable to do any of the driving.
[25] In September 2003, the plaintiff returned to Simon Fraser University. She said she went to classes most days but could not complete the day. The plaintiff also began additional part-time work delivering pizza. After the first semester ended she went back to working at the gas station she had worked at previously.
[26] The plaintiff saw Dr. Stepney on March 8, 2004. She complained of ongoing low back and neck complaints. Dr. Stepney recommended the use of an Obusform back support. Dr. Stepney referred the plaintiff to Healthx for active rehabilitation. The plaintiff underwent an assessment at Healthx on April 27, 2004. The plaintiff did not get beyond the assessment because ICBC did not provide funding for an active rehabilitation programme and the plaintiff was not able to pay for it herself.
[27] In May 2004, the plaintiff began full time office work at New Era Trucking. She gave up her other jobs.
[28] In September 2004 the plaintiff returned to Simon Fraser but kept working at New Era Trucking.
[29] The plaintiff went for further chiropractic treatment between September 16, 2004, and December 8, 2004. She then returned to Dr. Stepney on March 17, 2005, with ongoing complaints of low back pain. She was again referred to active physiotherapy rehabilitation.
[30] In June 2005, the plaintiff went to Healthx for a second assessment and began a course of further physiotherapy treatment. Initially, there was some improvement in her symptoms. However, after a few weeks, the plaintiff experienced nerve pain down her legs into her feet. This is her first independent recollection of her symptoms.
[31] The plaintiff said her back was bad throughout that summer and she could barely do anything. She commented that the more physiotherapy she engaged in, the worse her back became.
[32] The plaintiff saw Dr. Stepney on July 25, 2005, and complained of leg pain and low back pain. Dr. Stepney referred the plaintiff to a physical medicine specialist, Dr. Chu, and also sent her for an x-ray. The x-ray – taken on September 22, 2005 – showed a mild narrowing of the L5-LS 1 disc space.
[33] The plaintiff continued with the Healthx program until September 30, 2005. The plaintiff’s neck symptoms appear to have resolved by the end of this treatment.
[34] The plaintiff saw Dr. Chu on December 15, 2005. She complained of low back pain, worse on her left side than the right, and pain to the left leg and foot. She told Dr. Chu that the leg symptoms had started in 2005. By the time she saw Dr. Chu, her symptoms had abated somewhat from what they had been in August and September, 2005. Dr. Chu referred her for an MRI and recommended that she resume some of her exercise activities.
[35] On January 6, 2006, the plaintiff’s vehicle was rear-ended. She said her neck became more sore, and remained that way for about two weeks.
[36] The plaintiff returned to Dr. Stepney on January 26. She reported that her low back had been somewhat aggravated by this third accident, but at the time of the visit her low back symptoms had returned to their status before the third accident. The plaintiff also sustained an injury to her neck and upper back.
[37] The MRI requisitioned by Dr. Chu was done on May 12, 2006. It showed a moderate L4-5 bulging disc. It was noted that the bulging might cause contact with the L5 nerve roots.
[38] The plaintiff saw Dr. Chu again on May 26, 2006. By that time her leg pain had dissipated. She was still experienced back pain when sitting.
[39] By that point, the plaintiff had resumed playing team soccer, but at a less competitive, and therefore aggressive, level.
[40] The plaintiff graduated Simon Fraser University in October 2006. She is currently working full-time at a company related to New Era Trucking. She manages a small office and coordinates shipments. Beyond filing her work is non-physical.[1] That said, sitting is painful for her.
[41] The plaintiff continues to complain of low back pain and at the time of trial was taking three Advils and three Tylenol 1’s a day. The plaintiff had been taking that or similar pain medication for most of the time since the first accident. I will not detail that because I do not think it adds anything to my analysis.
[42] The plaintiff says that the second accident caused or contributed to her disc injury. In addition to general damages and special damages for past wage loss and medical expenses, the plaintiff claims loss of earning capacity and cost of future care.
[43] The defendants say that the plaintiff’s disc injury was caused by the second accident. They acknowledge that the second accident aggravated the pre-existing disc injury, but only temporarily.
[44] Two medical experts provided opinions on behalf of the plaintiff: Dr. Chu who is a physiatrist and Dr. Stepney who is the plaintiff’s general practitioner. The defendants did not adduce any expert evidence.
[45] In his report, Dr. Chu referred to the MRI and said:
This showed a moderate sized diffuse disc bulge or protrusion at L-4/5 with associated disc desiccation or drying. This could very well have been a small disc herniation initially from the MVA which has shrunken to now a disc bulge and degenerative changes with drying of the disc.
[46] Later in his report Dr. Chu concluded that the disc injury was caused by the first accident. He stated:
Prior to the motor vehicle accident Ms. Rodgers had only occasional transient low back pain when she did too many strenuous activities such as played soccer too long or too hard or fell in soccer and did something unusual. It would be transient short-lived pain. That is actually a very common phenomenon in athletes. She didn’t have really the persistent low back pain until after the first motor vehicle accident which was exacerbated by the second motor vehicle accident. The neck pain was also brought on with the first motor vehicle accident but that eventually improved and resolved after some rehabilitation at Health-X after the second motor vehicle accident. She probably had an injury to the L-4/5 disc with the side impact and torquing of the spine where the seat belt holds the pelvis and the upper body moves.
[47] When giving his evidence at trial, Dr. Chu changed his opinion and said that on further consideration his view was that the herniated disc was caused by the second accident. He said that in the last sentence of the above-quoted paragraph he should have said that the first accident caused mechanical back injury without specifying that it caused an injury to the L-4/5 disc. That was so because he did not know what was causing injury at the time. He then went on to say that the L-4/5 disc could have been the source of the pain after the first accident.
[48] In cross-examination he said that it was possible that the disc injury was caused by the first accident; that because the disc was weakened it could have been exacerbated or irritated by the second accident; and that the further injury when the plaintiff was undergoing at Healthx could have occurred absent the second accident.
[49] I do not think that Dr. Chu gave a satisfactory explanation for the change in his opinion.
[50] I turn now to the evidence the plaintiff’s general practitioner, Dr. Stepney. Dr. Stepney was also of the view that the plaintiff’s disc injury was caused by the second accident. However, to a large – but not total - degree her opinion was based on the assumption that the plaintiff experienced significant forward flexion in the first accident. There was no evidence of that at the trial, including from the plaintiff herself. The clinical notes do not show that the plaintiff mentioned this to Dr. Stepney.
[51] Dr. Stepney suggested that the second accident caused more significant injuries. However, the early examinations after the second accident suggested a minor low back strain with no reduced range of motion and Dr. Stepney diagnosed a soft tissue injury. While much was made by Dr. Stepney of the fact that the plaintiff returned to many of her pre-accident activities after the first accident, the more significant pain complaints were equally consistent with an exacerbation of prior disc injury.
[52] At trial, Dr. Stepney suggested that the isolated note of leg pain in the Glover Medical clinical records was an indication that the second accident caused the disc injury. (In argument, the plaintiff placed much reliance on this incidence of pain.) However, Dr. Stepney acknowledged that a one day complaint of leg pain was unlikely to be disc-related. I also note that Dr. Chu testified that the L4 nerve root distribution would generally, but not always, cause pain in the anterior thigh and the shin. He also offered alternative explanations for leg pain, including tight muscles.
[53] On the basis of the medical evidence and the other evidence, I do not think the plaintiff has proved on a balance of probabilities that the second injury caused or contributed to the disc injury. It is equally or more likely that it was caused by the first accident.
[54] As I stated above, the defendant acknowledges, correctly, that the second injury exacerbated the plaintiff’s pre-existing condition. What is the extent of that exacerbation?
[55] Dr. Chu testified that the severe worsening of the plaintiff’s symptoms in June 2005 (while undergoing active therapy at Healthx) could have occurred without the second accident. Between the time of that worsening and the time of the second accident the plaintiff appeared to be improving. I therefore agree with the defendant’s submission that the time between those two events is a reasonable one for the purposes of assessing the plaintiff’s entitlement to general damages.
[56] The defendant argues that the general damages to which the plaintiff is entitled is in the range of $25,000 to $30,000. That was not seriously disputed by the plaintiff (whose main damage submission was made on the basis of the disc injury being caused by the second accident).
[57] I assess general damages at $30,000.
[58] The parties agreed on $320.00 for past wage loss and $2,810.38 for special damages.
[59] The plaintiff argued in favour of a very substantial loss of earning capacity and cost of future care awards, $147,000 and $106,000 respectively. But that was based on the presumption that the second accident caused the disc injury. In view of my rejection of that, I will not discuss this submission in detail, other than to say that even if the second accident was to blame for the plaintiff’s disc problem, those figures seem to me to be exceedingly high.
[60] It flows from my finding that the second accident did not cause the disc injury, and from my view of the period of exacerbation, that the plaintiff will not suffer any loss of income earning capacity and is not entitled to an award for the cost of future care.
[61] I assume that since liability was admitted there were offers to settle and counsel may, if necessary, speak to the issue of costs.
“MYERS J.”
[1] She did give evidence about setting up a trade show booth in Chicago this past April, but she did not say that that type of activity was a regular part of her work.