IN THE SUPREME COURT OF BRITISH COLUMBIA
Murray v. Byrd,
2008 BCSC 895
Registry: New Westminster
Bruce Randolph Murray
John Clinton Byrd also known as
Wayne John Byrd
Before: The Honourable Mr. Justice Brine
Oral Reasons for Judgment
March 20, 2008
Counsel for the Plaintiff
Counsel for the Defendant
M. von Antal
Place of Trial/Hearing:
New Westminster, B.C.
 THE COURT: The plaintiff, Bruce Murray, was injured in a motor-vehicle accident that occurred on January 21, 2006 on the Mount Seymour Parkway in North Vancouver. He had been stopped for a red light in his 1990 Acura when he was rear-ended by the defendant's vehicle. Liability for the collision has been admitted. The sole issue for determination is an assessment of damages.
 Mr. Murray testified as to the severity of the collision. It is evident from the photographs of the damage to both vehicles that there had been a significant impact. Mr. Murray testified about his injuries and their impact upon him. It is evident that the injuries were all soft tissue in nature. He complains of such usual symptoms as headaches, neck pain, low and mid-back pain, left elbow and forearm pain, and occasional pain shooting to his knees, as he describes it.
 Four days following the accident he attended his general practitioner of some 20 years, Dr. Marcos, in his clinic in Coquitlam. Dr. Marcos referred Mr. Murray to physiotherapy and prescribed over-the-counter Tylenol as an analgesic. Mr. Murray attended a physiotherapist for some 12 treatments until the end of March 2006. He found these treatments to be extremely beneficial. Most of the symptoms settled down in what might be described as "the usual course" over the succeeding month or two following the accident. Mr. Murray acknowledged that Dr. Marcos had advised him on April 12, 2006, less than three months post accident that he could return to work.
 He continued to complain of some measure of ongoing discomfort for which treatment was neither sought nor received. Mr. Murray saw Dr. Marcos some six times between the date of the accident and April 12, 2006, and once in June of 2006. The plaintiff described the difficulty he faced whenever he tried to see Dr. Marcos, and he was unwilling to put up with the long waits simply to see him.
 Dr. Marcos' clinical records were admitted into evidence as business records and for the limited evidentiary use which flows from them in such a case. The records disclose subjective complaints only with substantial recovery by April 2006, or less than three months following the collision. There was no medical/legal report tendered from Dr. Marcos or indeed from any other medical practitioner in support of the plaintiff's claims.
 Mr. Murray was unemployed at the time of the accident, having quit his job as a mechanic at a Budget Brake and Muffler outlet. He had started that job in mid November 2007. He was, as he said, "being taken advantage of". His previous employment was with the Gisborne Group as a fire suppression installer. He worked there some 11 months until he was laid off due to productivity concerns. He received employment insurance benefits for a number of months following the accident and was paid some $5,250 in total. In October 2006 he obtained employment building water treatment plants for BI Pure Water. He continues in that employment. Mr. Murray also described how he performs small auto mechanic jobs in his garage on his own time. He said that these were cash jobs and were not ever reported on his income tax returns. No records of any sort were produced as to the nature or amount of income he earned from this endeavour. He testified that he could earn up to $300 per week, however.
 Mr. Murray expressed some interest in pursuing formal courses as an automobile mechanic or heavy duty mechanic, but he has taken no steps in that regard. He explained that his back pain might not allow him to do such work. I note, however, that his current employer offers a number of skills-upgrading courses to employees, including Mr. Murray. He has not to date followed up with any of these opportunities.
 Mr. Murray's present limitations, as he testified, are to his enjoyment of certain activities and to certain aspects of his auto repair work. His main recreational activity was snowboarding which he enjoyed, he said, four times a week or so prior to the motor-vehicle accident. Both the nature and frequency of his snowboarding has diminished since then. He said that following the accident he has only boarded once in 2006 and two or three times in 2007. He is capable of far fewer runs and on much less challenging terrain than previously. Mr. Murray, in cross-examination, agreed with the suggestion that his symptoms had mostly resolved by the time his physiotherapy came to an end and that he only had minimal symptoms after that time. Ken McNeil, a friend of Mr. Murray, testified that he has noticed a decline in Mr. Murray's snowboarding capabilities.
 I note as well that while largely forthright, I was dissatisfied with some of the plaintiff's testimony; in particular there was some inconsistency of his evidence regarding his headaches at trial and what he had said at his examination for discovery. Similarly, his lack of recall regarding a job for which he had applied in June 2006 was not terribly reassuring.
 The medical evidence presented in this case was problematic. As mentioned, I did not have the benefit of a medical report, even a brief one, from Dr. Marcos. Rather, Dr. Marcos' records were tendered on the basis that they amounted to a statement as contemplated by Rule 40A(5) with the intention of calling Dr. Marcos to give verbal evidence of his medical opinion.
 Rule 40A(5) states:
The statement (of opinion) shall set out or be accompanied by a supplementary statement setting out the following:
(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
(c) the name of the person primarily responsible for the content of the statement.
During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.
 In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert's opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.
 To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:
I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence -- which could be just his own evidence if the surrounding circumstances are consistent -- that his complaints of pain are true reflections of a continuing injury.
 In the case at bar there is nothing by way of objective evidence of Mr. Murray's complaints of injury, let alone convincing evidence of any significant injury. From the evidence that I do have before me I can accept and find that the plaintiff was injured and that he was virtually totally recovered within three months. Although an opinion of a medical expert such as a medical/legal report from Mr. Murray's general practitioner, Dr. Marcos, may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion. It is difficult to imagine why no medical report was tendered in evidence; no explanation was offered by Mr. Murray's counsel.
 The absence of such a report might, in certain circumstances, give rise to an adverse inference. I do not, however, choose to do so here. It is not necessary as there is no convincing objective, independent evidence of injury exceeding a very few months in duration. I cannot base a decision upon speculation, supposition, or facts not in evidence before me. Mr. Murray is possibly going to be under-compensated due to the absence of such evidence, particularly the absence of a medical report. Nevertheless, the defendant's obligation to compensate Mr. Murray can only be based upon evidence properly placed before the court during the trial.
 Here, Mr. Murray has sustained what I find to be a mild, soft tissue injury which had essentially cleared within three or so months. While there may have been some lingering complaints, I cannot find that they were significant, nor in any way disabling.
 Mr. Wilson suggested in submissions that the appropriate range of damages for pain and suffering and loss of amenities was between $25,000 and $75,000. Mr. Von Antal for the defence submitted that the range ought properly be $5,000 to $10,000.
 Of the authorities presented, I find that the decision of Mr. Justice Goepel in Nicholson and Armstrong to be the most applicable in terms of the nature of the plaintiff's injuries. In that case an award of $6,500 was made. However, in that case a finding was made that the plaintiff had not mitigated his loss. I am not satisfied that Mr. Murray failed to mitigate his damages so much as he simply forgot the actual exercises with the passage of time. Thus, I would be inclined to ameliorate the award made by Mr. Justice Goepel upwards somewhat.
 I do find that it is probable that Mr. Murray's forgetfulness was more likely than not due more to the fact that his complaints were not continuing to be bothersome than to any other reason. Given that factor, and the age of the Nicholson decision, it is my view that an appropriate award for damages for pain and suffering and loss of amenities of life for Mr. Murray is $12,000.
 As to the income loss claim, there was no claim put forward for a past loss of income, however I shall address that issue. There was no convincing evidence of a past loss of any income suffered by Mr. Murray as a consequence of this accident. He was unemployed at the time; he had, I find, no immediate plan to obtain new employment, preferring instead to enjoy his snowboarding activities during the winter season which was lost to him. (I note in passing that he has, however, been compensated for this loss within the award of non-pecuniary damages above.)
 There was no independently verifiable evidence before me of the extent or indeed the fact of Mr. Murray's auto repair sideline business. I am unable to find that any loss in that regard has been proved.
 As to the claim for loss of or diminishment of Mr. Murray's earning capacity as submitted on his behalf, there is simply, in the absence of any cogent medical evidence or opinion to support such a claim, no acceptable evidence of such a loss. The bar is not a high one, but without some supporting medical evidence it cannot be met. There will be no award made for such a claim.
 The final matter is special damages in the amount of $180 being the user portion of physiotherapy treatment costs paid by the plaintiff. These have been proved and were not objected to. There will be an award of $180 to the plaintiff for special damages.
 And the final remaining matter is costs.
(SUBMISSIONS RE COSTS)
 THE COURT: From my experience, most of the work, it seems to me, in any matter that goes to trial, is inevitably undertaken from about the time the discovery is held. There is a flurry of activity about that time. I presume that there probably were the usual gamut of applications for clinical records and whatnot, probably all post offer date, I imagine, so that the lion's share clearly of the work was done after the middle of December.
 In terms of the plaintiff's entitlement to costs, in my view this case is clearly one which is caught by the small claims limit and, on the basis of the evidence before me, ought properly to have been in that jurisdiction, and so I am going to exercise my discretion in not awarding the plaintiff costs.
 They are entitled to disbursements, however, up to and including -- what's the appropriate length of time? One week following the offer?
 MR. von ANTAL: That would seem to be a reasonable period of time.
 THE COURT: Up to and including December 27, 2007, and that the defendant is entitled to its costs thereafter up to and including trial, which I am going to somewhat arbitrarily set at $4400 being two-thirds of the amount of the maximum costs recoverable in any event. Those disbursements and costs may be offset.