Defence + Indemnity: February 2018 - IV. QUANTUM/DAMAGES ISSUES A.

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IV. QUANTUM/DAMAGES ISSUES
A. A Plaintiff was found by the trial judge to have exaggerated her pain levels and to have lied during Questioning and to her health care professionals but was still found at trial to be credible and honest, which resulted in the Plaintiff obtaining a fairly substantial damage award stemming from a low impact MVA.

 Stevenson v Thompson, 2017 ABQB 451, per Park, J. [4263]

I. FACTS AND ISSUES

On August 12, 2008, the Plaintiff Stevenson was sitting in the driver’s seat of her parked car at a shopping mall in Calgary. She was sitting with her legs across the passenger seat and was in the process of moving her legs back in front of her when the front of her vehicle was struck by the Defendant Thompson’s vehicle. The impact force was very low although Thompson conceded that Stevenson’s car could have been moved a foot or two.

Following the accident, Stevenson complained of pain and stiffness in her neck, back and shoulder, and the pain in these areas caused her to leave work early the following day. Stevenson saw a multitude of health care professionals and the consensus diagnosis was that she suffered a WAD II injury that would resolve with the passage of time. However, she complained of chronic pain stemming from the accident and headaches as well.

Stevenson had a history of accidents. She had been involved in three previous incidents and five incidents post-accident, including other MVA’s and slip and falls. Stevenson also had an extensive medical history dealing with hyperthyroidism and multiple life stresses.

Counsel for Thompson argued that Stevenson did not enjoy good health in the years prior to the accident and noted that the many incidents post-accident as well as her depression and life stresses all impacted her general health and enjoyment of life. Counsel also seriously questioned Stevenson’s credibility, specifically her self-reporting of pain to her caregivers and in her trial testimony.

The experts testified that Stevenson had not followed medical advice in refusing to take prescribed medications for anxiety, depression and her thyroid medication, and by allowing herself to become deconditioned by failing to follow advice to engage in physiotherapy, exercises, and stretching.

Issues:

  1. Was Stevenson credible?
  2. What injuries did Stevenson suffer and did her other incidents have an effect on her injuries?
II. HELD: For Stevenson; damage award of $183,000, including $60,000 in generals, $58,000 for the cost of future care, after a reduction of 20% for failure to mitigate.
  1. The Court accepted that Stevenson’s self-reports of pain were exaggerated and found that she had lied during her evidence given at Questioning. However, the Court found that at trial her evidence given was truthful and honest.
    1. The Court did recognize that she expressed disagreement with some of the observations made by health professionals – for example the role stress plays in her pain.
    2. Her evidence was given in a straight forward manner and with care and precision.
    3. Though her memory was shown to be deficient and lacking in certain areas, the Court found she was not attempting to deceive.
      1. When she was presented with answers from Questioning that did not align with her evidence at trial, her answer was that she could not provide a satisfactory explanation. The Court gave her credit for this instead of trying to make up a satisfactory answer – these answers were lacking in content but the court felt they were truthful.
    4. As a whole, the court found that though her pre-trial behavior was to be criticized, her evidence, though compromised, was credible. The Court felt that admitting her previous conduct was credible, although her conduct in dealing with health providers “left something to be desired”. This included lying to health care professionals about not having previous or subsequent slip and falls, and admitting her deceit at trial was recognized by the judge
    5. It was held that Stevenson walked her own path with respect to rehabilitation and this was reflected in the reduction of the damage award for her failure to mitigate.
  1. The Court found that Stevenson suffered from chronic regional myofascial pain, cervicogenic headaches and a chronic mechanical low back pain and that she had  sustained a WAD II injury.
    1. The Court found that on a balance of probabilities, the impact  caused Stevenson to suffer a whiplash injury that she would not have suffered but for the accident.  The Court held:
[350]      Counsel for Thompson submitted a minor parking lot accident does not provide a causal link to Stevenson’s injuries. In that connection I was urged to look to Thompson’s evidence. However, a review of it does not support a mere “scraping” of the vehicles’ bumpers. No biomechanical or mechanical engineering evidence was called. Stevenson’s evidence established that her vehicle was moved as a result of the collision. Thompson’s evidence really did not dispel Stevenson’s evidence and it is not strong enough to support a theory of a mere scraping of the bumpers. Instead Counsel for Thompson urged me to employ common sense and experience to find that there would be no transfer of force to Stevenson’s vehicle. To use common sense and experience in assessing the factual matrix of this accident based upon the evidence adduced would require me to speculate respecting the forces involved. Thompson allowed in her evidence that Stevenson’s vehicle could have been pushed forward 1 foot to 1-1/2 feet following impact. I find Stevenson’s vehicle was struck with sufficient force to move it at least 1 foot while the vehicle was in a park mode with the engine not running.
 
[351]      In addition, there is the evidence of Stevenson immediately seeking medical treatment within one day of the index accident. Both Drs. Cosmans, Dr. Curtis, and the walk-in clinic physician all examined her and found objective symptoms of injury in addition to the self-reporting.
 
. . .
 
[387]      I adopt Dr. Flaschner’s opinion on causation. In summary, the index accident was the inciting event that led to the subsequent chronic pain condition.
 
[388]      The proper test for causation in this case is not Dr. Atkinson’s reliance on the Hill study. Instead it is a test summarized by Moen J in Dushynski v Rumsey, 2009 ABQB 513 (CanLII) from the Supreme Court of Canada decision in Athey v Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458. Moen J stated:
  1. The plaintiff must prove that the injury would not have occurred but for the defendant’s negligent accident (para.14).
  2. A second formulation of this principle is that the plaintiff must prove that the defendant’s negligence materially contributedto the occurrence of the injury (para 15).
  3. Causation need not be proved with scientific precision, and the causation test should not be applied too rigidly. It is “essentially a practical question of fact which can best be answered by ordinary common sense” (para 16).
  4. An inference of causation may be drawn from the evidence without positive scientific proof (para 16).
  5. Causation must not be assessed in terms of probabilities; past events, like negligence, must be proven, and once proven treated as certainties. For example, in Athey the plaintiff suffered a disc herniation, and the defendant argued that the injury was caused by the plaintiff’s exercise, not the earlier accident. The Supreme Court noted that it was not appropriate for a court to hypothesize that there was a 60% chance that the defendant’s negligence caused the injury. It must declare, based on the evidence, whether the defendant’s negligence caused the injury (para 28).
[389]      I am satisfied beyond a balance of probability that Stevenson’s diagnosis as set out by Dr. Flaschner of a WAD II whiplash injury with chronic regional myofascial pain syndrome would not have occurred but for Thompson’s negligent act. Thompson’s negligence materially contributed to the occurrence of the injury.
 
[390]      Stevenson’s chronic pain is real. I am convinced she genuinely experiences it. I find Stevenson has provided credible evidence of a convincing nature that her pain is chronic and will continue well beyond the normal recovery period. I accept her evidence that she has suffered from chronic pain and will continue to suffer from chronic pain. In addition, there are objective symptoms found in the evidence of Dr. Flaschner and in the portions of the evidence I accept from Dr. Atkinson that at the time of his examination of Stevenson she had symptoms of chronic regional myofascial pain syndrome in her neck, upper back and right lumbar spine.
 
[emphasis by the Court]
 
. . .
  1. The Court preferred the evidence of Stevenson’s physiatrist Dr. Flaschner to that of Thompson’s expert (Dr. Bauman) on the basis that Dr. Bauman admitted in cross-examination that if he saw a patient with some vague aches and pains lacking any organic basis with symptoms significant and disabling enough he would refer such patients to a psychiatrist.
     
  2. Counsel for Thompson presented another expert on the issue of causation but the Court found his findings to be flawed. The Court was unimpressed with the studies used by the expert to back his findings, and noted that his findings were in direct contradiction to most of the other experts.
  1. The Court rejected the Defence argument that Stevenson’s injuries constituted a “minor injury” for which general damages are capped by:
[401]      I do not accept any evidence to demonstrate the injuries suffered by Stevenson are minor injuries under the Minor Injury Regulation. I have determined the index accident was not a very minor scraping incident. The accident involved Thompson’s vehicle striking Stevenson’s vehicle at an approximate speed of 5 kilometers per hour and which impact even Thompson allowed, could have pushed the stationary vehicle of Stevenson by 1 foot to 1-1/2 feet. At the time of the impact, Stevenson was seated unbuckled in a precarious position in her vehicle with her body twisted.
 
[402]      While some of Stevenson’s pain complaints are subjective, there is an abundance of objective observations on Stevenson’s pain made by her professional caregivers commencing within a short time after the index accident and continuing to the trial date. Any complaints of pre-existing pain made by Stevenson in similar areas of her body seem to have been resolved by the date of the index accident. Dr. Flaschner, Dr. Curtis and both Drs. Cosmans testified Stevenson experienced a whiplash type disorder which seemed to arise from the index accident. Dr. Flaschner described the index accident as the inciting event which caused Stevenson’s pain complaints.
 
. . .
 
[407]      In summary I am satisfied beyond a balance of probabilities Thompson’s negligence caused Stevenson’s injuries as diagnosed by Dr. Flaschner. Her pain complaints arising from her injuries caused a substantial inability for her to engage in normal acts of daily living. 
  1. ​The Court applied a 20% reduction to Stevenson’s claim due to a failure to mitigate her damages by “walking her own path” on rehabilitation:
[398]      Her course of conduct in refusing to follow her caregivers’ advice has not helped her chronic pain condition. Instead, for some unknown reason she follows her own counsel. Such counsel amounts to a failure to mitigate. This failure to mitigate will result in a discount of the damages awarded to her.
 
. . .
 
[427]      Stevenson repeatedly received advice from her medical caregivers to exercise. In effect she ignored it by choosing to relieve her pain through acupuncture and chiropractic manipulative treatment. Such treatment alleviated her pain but it did not assist her in resolving or improving her whiplash injury or her subsequent chronic pain condition. All her medical caregivers, including both Drs. Cosmans, urged her to follow an exercise program. Such advice was reasonable. The quality of the medical advice was sound. There was no conflicting medical advice provided to her which suggested an exercise program would be detrimental to her health. Stevenson chose not to follow the exercise treatment program on a regular and sustained basis. Counsel for Thompson certainly has proven some of Stevenson’s losses would have been avoided if she had followed the regimen exercise plan provided by her medical caregivers.
[428]      In addition, I note Stevenson failed to take on a regular and sustained basis, her prescribed anti-depressants, thyroid medication and sleep medication. The resulting periods of anxiety and depression, sleep deprivation and poor health linked to her fluctuating thyroid levels amplified her chronic pain. Her pain and suffering increased.
 
. . .
 
[430]      My aforesaid concerns and her failure to mitigate warrant a reduction in the award of general damages. In the circumstances I will reduce her entitlement by 20%. As a result of this reduction her general damages are reduced to $60,000 and I award her that sum.

III. COMMENTARY

This is a decision for defence counsel to be aware of. Even though Stevenson was proven to have lied during Questioning and to her health care providers, this had no effect on her credibility before the court. The court even acknowledged that Stevenson had previously exaggerated her symptoms and pain and yet her evidence at trial was wholly believed. This shows the risk of going to trial, even with a Plaintiff whose credibility is highly in question.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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