Minhas v. Hayden, 2012 ABQB 528

Court of Queen ’ s Bench of Alberta Citation: Minhas v. Hayden, 2012 ABQB 528 Date: 20120824 Docket: 0503 02301 Registry: Edmonton Between: Warpal Singh Minhas Plaintiff - and - Kimberly Renee Hayden and Brian Martin Parczen Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Circumstances [ 1 ] On February 9, 2003, the plaintiff was injured as a result of a collision on his side of Highway 2 approximately 80 km north of Calgary.

The defendant driver came across the ditch separating northbound and southbound lanes of the highway and collided with the plaintiff. The defendants admit liability. [ 2 ] The plaintiff says that he suffered a number of injuries in the collision all of which he testified were immediately painful. The plaintiff said he suffered a neck injury at the bottom of his skull and to an area a little lower and more to his left side. He testified that he took frequent physiotherapy treatments on the referral of Dr. Thapar, his family doctor, but the treatment stopped when an insurer

quit paying. The plaintiff testified that he has headaches as a result of the accident, some of which originate from his neck. He says that walking, driving, reading, sitting for too long, lifting all exacerbate his headaches and neck pain. [ 3 ] He testified that he takes Tylenol 3 and Extra Strength Tylenol, uses changes in his positioning, uses hot and cold packs, holds his head in his hands on occasion, and applies pressure to the left side of his neck all as tools to gain relief from his headaches and neck pain.

He testified that he has only slight improvement in his headaches and neck pain over the last nine years since the collision. [ 4 ] The plaintiff also testified that he suffered a fractured sternum and his ribs are not right. This apparently occurred when the driver ’ s side air bag exploded into deployment. He said he still has pain in his chest and that sudden movement and twisting exacerbates his pain. Again, as with most of his injuries, the passage of more than nine years has not improved his condition.

Indeed apart from his left knee, which the plaintiff says he banged on the dash and which he says healed up pretty quickly, all of the rest of the plaintiff ’ s complaints have continued from the accident date with very little improvement. [ 5 ] The plaintiff complained that the accident caused upper back and shoulder pain. These pains are exacerbated by the same sorts of activities that cause an increase in his headaches and neck pain. He seeks relief from this pain in the same way as he does for all of his difficulties.

Those efforts have been previously described. [ 6 ] The plaintiff says that his lower back was hurt and the pain runs from the front of his right thigh into his right buttock and into his right knee. He says he also banged his right knee on the dash and that injury also continues to cause him problems. [ 7 ] The plaintiff testified that he has suffered emotional and psychological injury in the form of depression, fear of driving, some increased irritability, some memory difficulties and some guilt. He can drive in the city but physically his body only allows him about 40 minutes driving time.

He cannot drive on the highway because he is nervous and scared of being in an accident. [ 8 ] He feels guilt because he is unable to provide for his family as he has not been able to work. Income earning and homemaking responsibility for the last nine years has been borne by his wife, entirely.

As well, he was financially mostly unable to provide the kind of dowry and educational support to his daughter that he wanted to. [ 9 ] The plaintiff testified that, just prior to the accident, he had started a full-time job as an operations manager for a commercial cleaning company, Rose Building Maintenance Ltd., and a part-time job as a driving instructor. The accident ended both jobs. [ 10 ] In the years prior to the accident, the plaintiff ’ s income from employment was quite varied.

The plaintiff held a variety of jobs in those years including: operations manager for maintenance companies, corrections officer, real estate agent and manager of a convenience store. [ 11 ] The plaintiff testified that after the 2003 accident, he asked Mr. Gill who owns Rose Building Maintenance Ltd. to return to his employment in a lighter capacity role. He testified that he was told there was no such opportunity for him. Mr. Gill confirmed that evidence.

The Plaintiff has previously been employed by Rose in 1996 and for five years from 1986 to 1981. [ 12 ] The plaintiff says he cannot driver train as he cannot go on the highway and he is a nervous driver. He said it is also difficult for him to easily shoulder check and conduct the other activities that a driver habitually undertakes. [ 13 ] Finally, the plaintiff said that he inquired of the building maintenance company employed at the Edmonton International Airport as to whether they had any work for him. He was advised that they did not.

He made that application because in the period 1986 through 1991 the operations management work that he was doing for Rose was at the Edmonton International Airport.

[ 14 ] The plaintiff admitted that he has not sought any training or the help of any employment agency to seek work apart from the efforts that I have described above. He did say he has taken franchise training at Tim Horton ’ s and some other place he cannot recall the name of but there are no franchises he can afford or that are available to him. [ 15 ] As the result the plaintiff has done nothing since February 9, 2003.

He explains this on the basis that his physical condition and emotional health will not allow him to do anything, anyway. [ 16 ] In 1997 the plaintiff was in a motor vehicle collision in which he suffered injury. His complaints almost exactly mirror the complaints he makes in this case. He sued for those injuries. The litigation was ultimately settled in December 2004, months after the 2003 collision. The settlement, I understand, was approximately $100,000. The lawyer representing the plaintiff on the 1997 accident was not the same lawyer he used to pursue action on the 2003 accident.

The 2003 accident was not launched until after the settlement of the 1997 action. The plaintiff did not advise the defendants in the 1997 action that he had been injured in 2003. As well, while undergoing physiotherapy for the 1997 accident injuries, the plaintiff ’ s neck was hurt and he sued the responsible physiotherapist. This occurred in October 1997. [ 17 ] It is instructive to recite some examples of the complaints the plaintiff made about the injuries he suffered in 1997 as context for his present complaints. In January, 1998, Dr. McKenzie reported as follows: “ Mr.

Minhas said that he had been off work ever since the accident and had been attending physiotherapy. He said that within ten days of the accident his right knee became greatly swollen but the elbow swelling seemed to reduce, although the elbow remained sore and stiff and would lock from time to time. He said his right wrist slowly improved but found that he had a tender bump on the back of the wrist. He said that his neck and back were very sore on both sides and it hurt to turn his head to either side.

He reported that he often had to turn his head with his hands when he was lying in bed, and the neck seemed to grind at other times. He said the neck initially worsened with physiotherapy and after two months with one therapist he changed to another one. He said his back symptoms became slightly better for a while but then he developed pain in the right buttock. He said that since October of last year, his knee symptoms had tended to clear up and then recur, and he had experienced occasional swelling in the right elbow with intermittent locking of the elbow.

He said his neck symptoms seemed to worsen at times, especially after a session of neck traction when he would have headaches and pain in the jaws. He complained that his right shoulder and anterior chest on both sides was sore, especially with the use of the arms. In addition to the problems with his right elbow and wrist, he said that he often had numbness of the two fingers on the little finger side of the right hand, mainly after sleeping on his right side or possibly with carrying. He said the low back was sore, especially with prolonged standing but also with prolonged sitting.

He said the back was a bit better with walking as long as he did not walk too far. He said that with bending or lifting he could get pain into the right anterolateral thigh and he said he often had aching into the right buttock. At the time I saw the patient, he reported that all of his symptoms were continuing with the worst of his symptoms being in the neck which was aggravated by looking to either side, especially to the left, and looking upward or downward. The neck pain was said to be mainly in the posterior neck and base of the skull, principally left-sided.

He said that he often experienced clicking and popping in the neck with neck movements. He said that his jaws were sore, mainly on the left side, and when they troubled him very much he would usually have a headache. The arms, elbow and right knee were said to be pretty much as they had been at the end of the year. ” [ 18 ] On February 19, 1998, Dr. Veszpremi reported to Dr. Thapar as follows: “ According to him, on 01 August 1997 he was involved in a MVA. While driving, someone pulling out from a parking lot hit his vehicle on the right front.

Due to the impact, his vehicle rotated and therefore, not only the right front but the right back of his car was hit too. There was some damage and needed to change the tires. He was relatively comfortable and went home. Unfortunately, a little while later he developed swollen right elbow pain in the whole right upper extremity, more in the upper part of it above the elbow, radiating to the neck and upper back. The pain radiated to the left side later too. Somehow later his right knee swelled up as well and he developed low back pain, again on the right side.

At first he was relatively comfortable, but during the night he developed more pain and the next day he went to see his doctor. He was given medications and approximately one week later he started physiotherapy. Unfortunately, he feels that physiotherapy further aggravated his pain.

He described his pain as being a steady one from an ache to a sharp pain going up to 7 on the 0 to 10 pain scale. He has difficulties moving his neck, has difficulties driving. In fact, he has not been driving as a truck driver since his accident. As he describes, rotations of the neck are painful but when he tries to look upward (extension of the neck) it “ sticks ” and he has difficulties moving further. In addition to his pain, he developed bilateral temporal frontal headaches, and with these headaches he has dizziness.

He does have some difficulties extending the right elbow and especially rotating it because of the pain. He feels that this is the reason there is decreased power in his right upper extremity. He feels that additionally the muscles in his back are tensed up. He does have some numbness of the right upper extremity, mostly the 4 th and 5 th fingers. He is sleeping relatively well. In the morning he is usually dizzy and fatigued. He describes his back pain being about 6 on the 0 to 10 pain scale, limiting the range of movement. He is on Tylenol #3 and anti-inflammatory medications. He has never had another injury.

He has been healthy, and he has no allergies. Physical examination shows moderately limited range of movement of his cervical spine. The flexion was 35 º and the extension 40 º . When we tried to push it further he indicated so much pain. Tiltings towards the right and left 28 º , rotations towards the right 46 º and towards the left 36 º . The range of movement of his lumbar spine was normal, but he indicated more pain on flexion and rotation and tilting towards the right than with extension and movement towards the left. The range of movement was normal in the other joints. His muscle tone was normal.

He is a muscular man, and during this examination we could not find any muscle spasms. In spite of that he indicated tenderness practically all over the muscles of the shoulders. Those were moderate. [ 19 ] In March 1998, Dr. Veszpremi provided a further report as follows: “ I just received the radiological report on Mr. Warpal, which were done on 29 January 1998. I do not have any previous report on him.

This report indicates degenerative changes in several areas including the right radiocarpal joint, the olecranon spur, there is a spur arising from the anterior superior surface of the right patella, and he has osteophytes and degenerative changes over the cervical spine and the lumbar spine as well. He had his injury on 01 August 1997, and I saw him on 18 February 1998. Those degenerative changes would take a much longer time to develop, so I do believe all those degenerative changes were pre-existing related to the MVA. Certainly, it aggravated the whole problem.

He is only 45 years old, and one wonders why does he have so many degenerative changes all over. It is my understanding that he is a long distance truck driver, which may or may not have any cause in developing those degenerative changes. As I described in my report dated 18 February 1998, he exhibited limited range of movement of his cervical spine and had a few tender points.

Based on this physical examination and the radiological finding, I believe he should not continue to do long range driving and certainly needs treatment. This should start with heat, very gentle manual stretch, assisted range of movement of the cervical spine, and isometric neck exercises. He will need massage therapy and a moderate stretching program (probably the so called spray & stretch) followed by point pressure into the tender area.

He might use a non-steroidal anti-inflammatory medication as well, and additionally he would benefit from therapy by a psychologist (Biofeedback treatment). ” [ 20 ] On May 11, 1999, Dr. Goebel reported to Dr. Thapar as follows: “ Thank you for sending along this very pleasant 46 year old gentleman who was involved in a motor vehicle accident on August 1, 1997. He indicates that there was some initial loss of consciousness and some disorientation approximately for one minute. He was wearing his seatbelt at the time of impact. He presented to his physician the following day and he was prescribed physiotherapy.

While at physiotherapy, he was receiving traction. While the therapist was trying to shut the traction machine off, there was an apparent increase in traction with subsequent worsening of his neck pain. His neck pain is located at the base of his skull at the attachment of the trapezius muscles bilaterally. There is some sharp “ cutting ” type discomfort he experiences on the left side of his neck at approximately the C3-4 level. He has had a constant headache since the motor vehicle accident with some associated dizziness and jaw pain as well as blurry vision.

He feels tightness and stiffness which is worse in the morning. There is some numbness in the little and ring fingers of his right hand and occasionally both arms can feel heavy and “ dead ” . This is an intermittent experience. Moving his head in a any direction can increase his neck pain which will radiate to his jaws and eyes bilaterally. He also injured his right elbow in the accident and indicated that it was swollen up. He also was left with lower back discomfort which is made worse with prolonged sitting or walking. There is occasional sharp pains.

He does have some tingling progressing down his right leg to the level of his knee. His pain is present on a daily basis and does cause him some sleep disturbance. He also has been left with some right knee discomfort again made worse with walking. There is some swelling with activity located mostly in the superior medial aspect and inferior lateral aspect of his right patella. ... His medications include Tylenol #3 every four to six hours as needed. He is on some anti-depressant medication and some other medication for his blood pressure which he is unable to recall. ...

On examination, he is approximately 6'0" tall with a weight of 180 pounds. His blood pressure was 136/87 and his pulse was 93 and regular. Examination of his neck showed range of motion to flexion 50 degrees, extension 42 degrees. Rotation to the right was 40 and to the left was 38. Lateral bending to the right was 30 degrees and to the left was 48 degrees. Extension created a painful click at the base of his skull. He is more tender to palpation of the scalenous muscles on the left side.

He is tender to palpation of the C2 spinus process as well as to the attachment to the trapezius muscles at the base of the skull bilaterally. Examination of his right elbow was normal, showed normal range of motion. He was tender to palpation over the Olecranon and at the attachment of the trapezius muscle to the Olecranon area. There was no obvious swelling or signs of synovitis. Grip strength was normal and muscle testing of the upper limbs was normal. Circulation, reflexes and sensation all were normal. There was no muscle atrophy, nor was there any temperature or color changes of the upper limbs bilaterally.

The neck was sore to both axial compression and distraction and this was felt by the patient at the base of the skull bilaterally. There was spasm palpated in the scalenous muscles as well as in the trapezius muscles bilaterally. There is also some spasm palpated to the posterior cervical muscles. Adson ’ s test and Tinel ’ s signs were negative bilaterally. Examination of his lower back showed that he was able to bend forward with his fingertips to the level of the lower one third of his shins. Extension and lateral bending as well as rotation was diminished bilaterally.

There were no muscle fasciculations nor temperature or color changes of the lower limbs bilaterally. There was no muscle atrophy noted. There was tenderness to palpation of the paraspinal musculature of the lumbar spine more so on the right than the left. He was also tender to palpation over the gluteus muscles bilaterally, but again more so on the right as opposed to the left. Tripod sign was negative, long tract signs were not present and laseques sign was not present. There was noticeable tight hamstrings.

Slump test was negative but did generate pain in the posterior aspects of both his legs and to a minimal degree in his lumbar spine area.

[ 21 ] On January 29, 2001, Dr. Witt reported: “ History : Mr. Minhas tells me that in 1997 he was involved in a motor vehicle accident. He says he was driving, wearing his seat belt, when his vehicle was in collision. He says that he hit his right knee and right elbow on a portion of the vehicle and his head hit the window. He is unclear if there was a loss of consciousness. However, he immediately experienced some pain in his neck and then noticed some swelling of his right knee and elbow. The next morning he was checked by a doctor and x-rays apparently showed no fractures.

It was diagnosed that he had had a soft tissue injury. He says that after a while he took some physiotherapy. It was during the physiotherapy, a few months after the accident (he believes possibly in October of 1997), that his neck was overly stretched and he says that ever since that time he has been troubled with more pain in the neck. He says that he gets pain in his head as well if his eyes are open and his jaw is sore. His neck feels loose and if he elevates his arms they get very sore and they feel weak.

He says that over the time since the accident he has had no improvement in his head and neck symptoms but that the knee, elbow and lower back symptoms have improved. He says that he was unable to work for 2 years following the motor vehicle accident but then he went back to a job that was quite stressful and he could not carry on because ha had so much trouble getting up in the morning. He has been in his current job for the last year but he still finds the mornings difficult. He says that is takes a while to get loose and limbered up.

Now he takes analgesics 3 times a day and anti-inflammatories as well as some other medication but he does not remember the names of any of the drugs. He says that he has had 2 previous whiplash accidents, the first in 1980 or 1982 and the second at some later time which he cannot remember. However, he says that he had recovered to normal by the time of the accident in 1997. ... Examination : Blood pressure 130/80. The general physical examination reveals a pleasant middle-aged man in no acute physical distress.

The neck is supple but he has only 20 degrees of movement in all directions when asked to do this actively. However, when distracted he gets full flexion of the neck as when he was asked to look at a lesion on his chest. There is marked tenderness over the left suboccipital region and cervical dorsal spinous processes, especially at the craniocervical junction, and his pain is worse even with very light touch on the skin. There is a mild discomfort over the left TM joint. The cardiopulmonary examination is normal.

On neurologic examination the mental status, cranial nerve, motor, sensory, cerebellar, reflex and plantar examinations are normal. Investigations : I understand that x-rays of the neck have shown some degenerative changes at C5-6. Conclusion : Mr. Minhas has a normal neurological examination and I do not think his ongoing symptoms have to do with a pinched nerve in the neck or a brain injury.

I suspect there may be some soft tissue component but he also manifests a number of features that are not organic, including the marked tenderness with light touch on the skin and the discrepant results of the neck range of motion as he can clearly move more when distracted as to when he is asked to do it on his own. I do not know any of the details of previous assessments that he has had either with tests or with physicians and if there is anything that is relevant to this that you think I should know about I would be pleased to review it.

Otherwise I think treating him with local heat, a tricyclic and trying to get him to become more active are important components of his rehabilitation process. The reduction of stress, including the settling pending litigation, is a component of successful rehabilitation in his case as well in my opinion. ” [ 22 ] Of note is the fact that x-rays were taken in 1993 but the plaintiff could not recall why or if he had been injured.

However he admits he has had previously whiplash injuries even prior to 1997. [ 23 ] The plaintiff did none of the things that the occupational therapist recommended in the functional capacity evaluation done in October, 1998. The evaluation recommended the following actions: Rehabilitation: ∙ Mr. Minhas would benefit from an extensive rehabilitation program.

He would benefit from a 6-8 week work hardening program with an occupational therapist, a physical therapist, a psychologist, and a vocational rehabilitation specialist to address issues such as strengthening, range of motion, cardiovascular fitness, pain management, and vocational options. ∙ Mr. Minhas would benefit from some type of pain management strategies. ∙ Mr. Minhas should consult with his physician regarding the possibility of moderate depression.

∙ Mr. Minhas would benefit from career counseling for a change in his type of employment. In conjunction with this Mr. Minhas may benefit from a session with a speech language pathologist to determine his current verbal and written skills and transferability of these skills. ∙ Mr. Minhas should consult with his dentist regarding his jaw. ∙ Mr. Minhas should have his blood pressure checked by his physician. [ 24 ] Dr. Thapar ’ s chart notes are also instructive.

From October, 2000 until November, 2002, the picture painted by these notes is of a patient who is severely injured and in a great deal of pain in the very areas which are the subject of this present litigation. [ 25 ] When pressed on all these things the plaintiff offered an unresponsive answer that his injuries from 2003 were different because he had a sternum fracture and temporal mandibular joint difficulties. [ 26 ] The plaintiff admitted that except for medication, he has not had any medical treatment for any of his physical problems except his TMJ since 2003. In addition, despite the recommendations of Dr.

Eliuk in 2006, who was treating the plaintiff for his psychological issues, the plaintiff said he could not afford $2,600 for the recommended 18 additional psychological treatments. Six years later, he continues to take mood elevating medications. [ 27 ] The plaintiff specifically denied he has exaggerated his symptoms or is trying to or has lied to appear more injured than he is. [ 28 ] The plaintiff was confronted with surveillance evidence.

That evidence involved live surveillance on March 27 and 28, 2003, June 3, 4, 18, 20 and 27, 2008, July 21, 2008, February 6, 7 and 9, 2011and December 21 and 28, 2011. [ 29 ] The surveillance makes it clear that Mr. Minhas had and continues to have more mobility than he has told the various professionals who have attended upon him since the 2003 accident. As well it is clear that his movements appear easy and therefore one can reasonably infer relatively pain free.

Again, that is not the impression he tried to leave while testifying and certainly not the way he portrayed himself to the professionals whom he has seen. In re-direct he attempted to explain this by saying his pain fluctuates. That is not what he said in direct and not the way he described his condition to the various professionals he has seen. Despite his denial that he is overstating or exaggerating his symptoms or attempting to make himself appear more injured than he is, Dr.

Lavoie ’ s report coupled with the surveillance and the belated attempt to explain the obvious inconsistencies, lead me to conclude that the plaintiff is not a reliable witness when it comes to his abilities, the nature and degree of pain he suffers, the impact of the pain on his life, or the difference between his present health and his health immediately pre-accident. In my view, Dr. Keegan was absolutely correct in his assessment of the worthiness of the plaintiff ’ s credit on these issues. [ 30 ] The plaintiff ’ s family physician, Dr. Vijay Thapar also testified. His chart notes became an agreed exhibit.

Plainly the man he describes in his notes was seriously injured in 1997 and continued to be in serious difficulty up to the 2003 collision. Clearly the complaints are virtually identical before the 2003 accident and after. After 2003 there is more focus on the plaintiffs temporal mandibular joints and psychological health, but both were raised as issues before the 2003 accident. In this light, it was surprising to have Dr. Thapar say in his report, also an agreed exhibit, that Mr. Minhas had made a “ good recovery (from the 1997 accident) and was able to return to work ” .

That conclusion is incongruous with the following two sentences in his report: “ After the MVA of August 1997 he was unable to work for about 2 years. He returned to work as a manager of Mac ’ s store and bus driver but was unable to function. ” [ 31 ] I prefer the conclusion that Dr. Thapar ’ s client notes inexorably compel to the

summary in his report. The plaintiff was in poor physical and emotional health before the 2003 accident and the areas of complaint are mostly the same. [ 32 ] Dr. Thapar testified that although he is not an expert, he concluded that the physical abnormalities seen in the MRI reports had to have been caused by the collision in 2003 as the abnormalities did not exist before that event. Again, he is not an expert in orthopaedics, radiology or magnetic imaging.

Additionally, this opinion suffers from another frailty, the doctor presumed to compare the MRI results not against a previous MRI but against a CT scan done shortly after February 9, 2003 and he did not refer at all to the x-rays of 1993 and 1997. With respect, for the reasons given, Dr. Thapar ’ s opinion on this subject is of no value.

[ 33 ] On the subject of the sternum fracture, Dr. Thapar explained that even if the plaintiff has bone density issues, he should still have healed from the occult fracture (hidden or to the interior of the bone). That healing would have been expected to occur within three months for the plaintiff. That fracture should have healed without sequelae. The plaintiff ’ s continuing complaints respecting his chest and ribs are not explained by the fracture. Dr. Thapar opined that the neck injury may be manifesting itself as pain in the plaintiff ’ s chest area.

I think the better answer is that the plaintiff is not being truthful. [ 34 ] Dr. Walter Buck testified as an expert in temporal mandibular joint injury and treatment. He is a dentist who has considerable experience in the field. He has also been treating the plaintiff. In his opinion the plaintiff has suffered a serious and relatively stubborn series of difficulties in his temporal mandibular joints as a result of the 2003 collision. Dr. Buck ’ s opinion is that the injured areas have improved and will continue to improve as long as the plaintiff continues to use the splint that has been prescribed for him. Dr.

Buck is a staunch advocate of splint therapy as a primary treatment method. He is of the view that once an injured person has had some physiotherapy to address other issues which may cause clenching of the jaws or muscle spasm of the muscles affecting the jaw, splint therapy should be started. [ 35 ] Dr. Buck ’ s attention was drawn to the 1997 accident and the injuries the plaintiff suffered in that accident. He was referred to the fact that some relatively few complaints had been made by the plaintiff about his jaw muscles/joints in the period 1997 through 2002. Dr.

Buck testified that all people in whiplash type situations of any kind, can suffer injury of some degree to their temporal mandibular joints. In his view, it is likely that the plaintiff did suffer some injury to his TMJs in 1997, but it was not significant enough in the plaintiff ’ s mind, to seek any significant form of treatment. That situation of course is markedly different from the plaintiff ’ s situation after the 2003 accident. I accept Dr. Buck ’ s opinion on this matter as this plaintiff is not shy about complaining if he was hurt.

One can only assume therefore that the impact of the 1997 accident on his TMJs must have been very minor. [ 36 ] Dr. Buck did say that it is often advisable for persons who have been hurt in their TMJs to avoid any activity which would serve to create tension in the jaw muscles. Therefore an activity which might increase existing neck pain or headache could cause a sufferer to jaw clench to his detriment. That explanation was offered in support of his recommendation to the plaintiff, that the plaintiff not do anything for awhile post-accident. [ 37 ] Dr. MacKenzie testified as an expert orthopaedic surgeon.

He was in the unique position of having done an assessment of the plaintiff in 1998 after the 1997 accident and then again in 2003 and 2004 after the 2003 accident. His view was that there had been some impact upon the plaintiff ’ s deficits at C5-6 after the 2003 accident, an area which had been an issue before the 2003 accident. It was his opinion that the plaintiff ’ s complaints were not consistent with what he observed in his examination and he doubted the plaintiff ’ s credibility. Subsequently, after being requested to offer further opinion in 2011 and 2012, Dr.

MacKenzie concluded that he had been wrong and that there were some abnormalities at C6-7 and in other areas of the plaintiff ’ s spine which he was now able to see as a result of newly improved digital technology relating to MRI scans. As a result, he reviewed prior scans and determined that evidence of what he saw in 2011 and 2012 existed in 2003. Therefore despite his misgivings about the plaintiff as a reliable historian, Dr. MacKenzie concluded that there was an explanation for the complaints the plaintiff was making. Dr.

MacKenzie is of the view that the C6-7 injury was the result of the 2003 accident and the plaintiff ’ s other deficits at C5-6, in his lumbar spine, in his hips and in his right knee, while all pre-existing, were exacerbated by the 2003 accident. [ 38 ] Dr. MacKenzie did not suggest that the plaintiff ’ s continuing chest pain complaints had any connection to or demonstrable cause or objective verification. [ 39 ] Interestingly, although not a radiologist, Dr. MacKenzie generally relies upon his own

interpretation of x-ray ’ s, CT scans and MRI ’ s, although he will check the reports of such investigations to ensure he has not missed something. In any event, despite his obvious abilities with such investigations, he is not an expert in that field, nor was any attempt made to qualify him as such. [ 40 ] Dr. Robert Lambert and Dr. Guy Lavoie testified for the defence in answer to the evidence of Dr. MacKenzie. Dr. Lambert was qualified as an expert diagnostic radiologist. He described the process by which scans (CT or MRI) are analyzed.

The process involves a side by side comparison of the digital images utilizing as many as six monitors and sophisticated software. It was apparent that despite the experience and facility with scans gained by Dr. MacKenzie in his long practice, the process used by Dr. Lambert and his experience and expertise with the

interpretation of scans is far superior. Dr. Lambert ’ s testimony on what the scans actually show is far more persuasive than Dr. MacKenzie ’ s

interpretation of that data. Dr. Lambert ’ s evidence was presented by computer video. As a result, a transcript of the projected images he utilized was impossible. In lieu of videorecording that evidence and the presented material, counsel agreed to proceed on the basis that there would be a transcript of Dr. Lambert ’ s testimony prepared prior to the conclusion of the trial which would be shared amongst the parties. As well, the digitally recorded scans analyzed by Dr. Lambert in his testimony would be filed as exhibits in the proceeding.

[ 41 ] Dr. Lambert demonstrated pictorially why he came to the conclusions he did. I have no hesitation in accepting his evidence which in

summary is this: (

a) Cervical spine: Both the protrusion at C5-6 and 6-7 are most likely degenerative in origin as opposed to traumatically caused. Neither compromised any nerves. The scans in 2003 and 2011 indicate that there is no change in the protrusion at C5-6 and very little change in the protrusion at C6-7. Although Dr. Lambert did not have the scans which were done in February 2003 at the Foothills Hospital, when he did his report, he has seen them since. Those scans make no reference to any protrusion at C6-7. Dr.

Lambert could not explain why that was, but opined that the C6-7 area in the May 2003 MRI exhibits modic changes of a type II nature. By that he meant the changes were long standing and had existed for possibly several years. If that is the case, they would long predate the traumatic events of February, 2003. Dr. Lambert advised that the plaintiff ’ s entire spine showed five areas of degeneration and in the eight years between the MRI scans, none had changed to any great degree.

In his view, it is inconceivable that all were caused by the accident and likely that as with the injury at C5-6, all were present before the accident of 2003. (

b) Upper back and lower back: Dr. Lambert described nothing of any consequence in the upper back. His evidence respecting the plaintiff ’ s lower back is that while there is deformity and protrusion, there is no nerve involvement and no fusion of the spine in the L2-3 area, although osification is present. (

c) Pelvis: Some degenerative change is present but appears to be minor. (

d) Right knee: There is no diminution of the cartilage. There is a bony abnormality on the exterior front of the knee cap, but really nothing affecting the joint. There is a small tear in the medial meniscus apparent in the 2011 MRI scan which was not present on the 2003 MRI scan. [ 42 ] Dr. Guy Lavoie ’ s evidence focussed on a clinical assessment of the plaintiff he conducted in June 2011. Dr. Lavoie was accepted as an expert orthopaedic surgeon and certified medical examiner. His report of June 23, 2011, was exhibited. His evidence was that the plaintiff was not as bad off as he attempted to portray.

As an example, in his report, Dr. Lavoie offered this: “ His examination is froth with some inaccuracies. He has essentially an ankylosed cervical spine on examination which does not fit any clinical condition that I have had the opportunity to exam in my orthopedic career. I have had the opportunity to exam patients with ankylosing spondylitis who do retain rotation and some motion in places. Mr. Minhas ’ examination of his cervical spine today suggests ankylosis from the skull down through the upper thoracic spine.

In addition he does have exquisite tenderness on brushing areas of his neck, back, and lumbar spine. He does have 0 straight leg raising in the supine position but functionally is able to sit up and bring his finger tips to his mid calf level, further suggesting an inaccurate examination. ” [ 43 ] In his testimony Dr. Lavoie said that he repeated his test to be sure he had not misinterpreted what he had seen but obtained the same results. He said that zero movement was totally inconsistent with the plaintiff ’ s other demonstrated abilities.

[ 44 ] In

summary, Dr. Lavoie ’ s opinion was that there is no neurological evidence or orthopaedic evidence to support the plaintiff ’ s pain complaints nor purported inability to work. Dr. Lavoie did ascribe a disability percentage to the plaintiff ’ s right knee. He did not however, offer an opinion as to what the scans show nor a conclusion as to the cause of any abnormalities there observed. Although he is very experienced in such matters and often examines scans, he believes an expert radiologist to be the appropriate person to opine on such matters. [ 45 ] Dr. Lavoie was of the view that Dr.

MacKenzie ’ s reports of 2003 and 2004 accurately described the plaintiff.

He felt the plaintiff had some measurable disability in his neck and back, but he could not offer an opinion as to what that might be because he did not believe the plaintiff was being honest with him either in terms of effort or report. [ 46 ] Deanna Thompson testified as an expert in occupational therapy, specifically in relation to a functional capacity assessment and home assessment she did on November 3 and 4, 2008. [ 47 ] She testified that the plaintiff ’ s abilities were limited by his reports of pain when engaged in various activities she set for him to assess his capacities.

The plaintiff did continue some activities despite pain but others he simply stopped. Ms. Thompson testified that the activities she asked the plaintiff to undertake have built-in protections against over reporting or exaggeration of symptoms because of the conscious effort required in circumstances where conscious alteration of behaviour would be difficult and because some activities disclosed indirectly a functional ability not directly under examination. I formed the impression that notwithstanding Ms.

Thompson ’ s evidence, the plaintiff ’ s complaints of pain were the ultimate determinant of what she believed he could and could not do and as such the plaintiff ’ s credibility is a very significant consideration in determining the weight to give to Ms. Thompson ’ s opinions. [ 48 ] The plaintiff said he would like physiotherapy but it is plain from the records that in August 2003 he left the impression with the therapist that he was not benefiting from such treatments and he has not had any since. [ 49 ] The plaintiff explained his cessation of treatment on the fact that his insurer stopped paying.

However, he received a settlement of $100,000 in 2004. Surely, if there was a benefit to him, he would have pursued physiotherapy. He did not. [ 50 ] In the absence of some objective criteria to assist in determining validity of the plaintiff ’ s efforts, I am not persuaded to rely upon him as did Ms. Thompson. One more example will help to explain. The plaintiff did a grip strength test for Ms. Thompson and the result indicated significant impairment. However, when the test was done in a way so as to distract the plaintiff, his effort was more than 12% greater.

As I have said, the plaintiff is not reliable. [ 51 ] That does not mean that I discount all of Ms. Thompson ’ s report. I do accept there is pain and there are some limitations associated with that pain. I simply do not accept however that the limitations are as great as Ms. Thompson advises the plaintiff would have her believe. [ 52 ] Ms. Betty Wilson testified on behalf of the defence as an expert occupational therapist. She was asked to conduct an occupational assessment of the plaintiff in 2007.

On the day of the assessment, she arranged for the plaintiff to be seen by a physiotherapist for a physical assessment. That was done by Ms. LaBrie. Ms. LaBrie ’ s report was exhibited. She concluded that the plaintiff had stiffness at C2-3 and L3 to L5 and some restriction at C4 to C6, but no nerve or muscle issues in those areas. She heard what she described as “ squishing ” when she manipulated the plaintiff ’ s right knee cap, but no joint issues. Palpations of the left temporal mandibular joint produced pain and deviation and protrusion of the plaintiff ’ s jaw also produced pain. Ms.

LaBrie concluded that the plaintiff was out of condition and that manual therapy of the spinal areas where restriction had been discovered, coupled with a structured exercise regime, would put the plaintiff in a much better physical condition and would improve his function. She described the kinds of exercises that would be advisable. She opined that after the initial period of intervention, the plaintiff ’ s gains could be maintained and built upon with a structured home exercise program. [ 53 ] The plaintiff claims that, but for the 2003 collision, he would have been working two jobs. He called Mr.

Gill of Rose and Ms. Leung of Royal Driving School Ltd. to establish his employment. In the case of Rose, the plaintiff had worked approximately three weeks before the 2003 collision and in the case of Royal, which was a part-time job, he had worked 10 hours before the accident. The prospective duration of the Rose employment and its physical demands are in issue. The way the job was described to me, if I accept the

plaintiff ’ s self-reported limitations, it does not appear that the plaintiff is capable of its performance. I accept that he did have communication with Mr. Gill about lighter duties some time reasonably soon after the 2003 collision. I also accept that he understood that there was no such position. Mr. Gill testified that someone was promoted to take the plaintiff ’ s position approximately one or two months after the accident. As well, Rose cut back from four or five operations managers in 2003 to the two operations managers it presently employs.

Therefore, the plaintiff may have ended up as one of those persons who lost his position just as he had with the same company in 1991. These are considerations which will be accounted for when assessing past and future loss of income claims by the plaintiff. [ 54 ] On the matter of the driving school, I accept that the plaintiff did have such a job. However, it is plain to me, that if he was working full-time for Rose, he would have had little time for Royal. The fact that he worked only 10 hours is indicative of that.

I do not think the plaintiff in his pre-2003 accident state, given the many and continuing complaints he made about his health to Dr. Thapar, was likely able to work 70 hours a week, 40 at Rose and 30 at Royal as he suggested. Again, that is a matter for consideration when assessing past and future income claims. II. Analysis [ 55 ] This is clearly a case where the plaintiff has established that he did suffer injury in the accident. Plainly, at a minimum, he aggravated existing deficits and suffered trauma to his jaw, chest and right knee, none of which had been of significant bother to him prior to the accident.

The plaintiff claims that while he had pre-existing deficits, he was able to return to work and to function reasonably normally. He argues that the accident in question, either because it caused the abnormalities exhibited in the scans or by reason of aggravation of his pre-existing conditions, has effectively ruined his life and rendered him unable to work. [ 56 ] The defendant argues that the plaintiff was not seriously injured in the accident.

The defendants argue that what the plaintiff suffered was a relatively minor aggravation of pre-existing problems which should have resolved within months of the accident.

The defendants argue the plaintiff is not credible and would be capable of working but consciously refuses to take any steps to put himself in a position to do so. [ 57 ] As I have said, I do not believe the plaintiff was truthful in his testimony concerning the nature and extent of his injuries from his previous accidents, from the subject accident, the initial and continuing impact on his life and health, nor his intentions respecting employment. A. Causation 1.

The Plaintiff ’ s Spine [ 58 ] A good deal of evidence was presented about the plaintiff ’ s neck, upper and lower back in relation to bony abnormalities, impingement of spaces and nerve compromise. As I have said, Dr. Lambert ’ s evidence on this subject is not only the only truly expert evidence, it is compelling. Not only did Dr. Lambert demonstrate that there is no nerve compromise cause by the bony protrusions, he demonstrated why Dr. MacKenzie may have come to those erroneous conclusions. Furthermore, Dr. Lavoie ’ s evidence and Dr. Hoffman ’ s evidence lend support to the conclusions of Dr. Lambert.

As a result, there is no physical evidence to support the conclusion that the 2003 accident caused any bony abnormality, space impingement or nerve compromise. However, all the experts accept that a person may experience pain from bony abnormalities even in the absence of nerve compromise.

In any event, where, as in this case, the abnormalities existed pre-accident and there are many well documented pre 2003 complaints by the plaintiff of pain in these same areas, he now claims were rendered worse by the accident, the inescapable conclusion is that the plaintiff has now what he had before. [ 59 ] Furthermore, the evidence plainly compels the conclusion that the 2003 accident did not cause the various abnormalities observed on the scans. Firstly, there are five such areas of abnormality in the spine, it is unlikely that all occurred as a result of the 2003 accident.

Secondly, there is only minor change in the areas scanned between 2003 and 2011, which demonstrates the natural progression of degenerative change. Thirdly, the plaintiff ’ s C5-6 spine showed signs of degeneration, not trauma, in the scans done when the plaintiff was at the Foothills Hospital, immediately following the accident. Fourthly, the changes identified in C5-6 and C6-7 show what is know as Type II modic change. That level of change indicates chronicity as opposed to recent trauma.

[60] In result, I have concluded that the 2003 accident did not cause any bone injury nor compromise any of the spaces or nervesin the spinal areas. [61] It remains to determine whether the plaintiff has established that the pain in his spinal areas is the result of the 2003 accident,was aggravated by the 2003 accident and the aggravation caused by the 2003 accident continues. a. Did the 2003 Accident cause the Plaintiff’s Pain Complaint? [62] The records of Dr. Thapar make it clear that the plaintiff has had complaints of pain of the same kind in the same areas thathe now claims to have.

He has had those complaints for years prior to the 2003 accident. The 2003 accident is not the sole cause of thosecomplaints. b. Did the Accident of 2003 Aggravate the Plaintiff’s Pre-Existing Difficulties? [63] I have concluded that the plaintiff has proved that he did suffer increased pain in his spinal areas following the accident. Hisadmission and stay at the Foothills Hospital, the nature of the accident which occurred, and the fact that he could not start what hedescribed as his dream job, are some of the circumstances which make that conclusion inescapable. c.

Does the 2003 accident aggravation continue and if not when did it cease to be an effective cause of the plaintiff’s continuingcomplaints? [64] It is in this area that the plaintiff’s evidence is crucial to understanding the impact of the aggravation upon his functioningand enjoyment of life. Where, as occurred here, the plaintiff is unreliable, and, as in this case, actively exaggerated and misled, he suffersthe consequences. He can’t be relied upon to determine the nature and extent of the aggravation. That determination must be made fromother evidence.

However, the plaintiff’s lack of honesty also permeates and undermines much of the other evidence to the extent thatthat evidence is dependent upon what the plaintiff reported. In result, a good deal of the evidence is tainted by the plaintiff’s lack ofhonesty on the subject of the degree and duration of the aggravation caused by the 2003 accident. [65] As I have said, the evidence does establish aggravation. The experts called by the defendants and Dr. MacKenzie confirmthat injuries of the kind suffered by the plaintiff usually resolve in one to two years.

There is no other independent credible evidencewhich establishes a greater period of aggravation than two years. Therefore I have concluded that the plaintiff’s spine related injuriesshould have resolved themselves by February 9, 2005. d. Psychological Overlay [66] The plaintiff claims psychological repercussions from the 2003 accident. This aspect of the plaintiff’s claim impacts upon theanalysis in two ways. Firstly, as a part of the claim for general damages.

I will analyse the matter in that context later in these Reasons.The claim also relates to whether the plaintiff has become unable to cope with the pain, as a function of his unconscious mind.

ThePlaintiff claims that if he has overstated or exaggerated his deficits, he has no control over doing so. [67] In Malsen v Rubenstein, (1993) 2465 (BCCA), Taylor JA put the issue as follows: 1 This appeal is concerned with those post-traumatic phenomena – sometimes identified with and sometimes distinguished fromconditions known as “idiopathic pain disorder”, “chronic (or chronic benign) pain syndrome”, “functional overlay” and “somatoformpain disorder” – which involve continued suffering in accident victims after their physical injuries have healed. (

a) The Background

2 An obvious preliminary question in these cases is whether the pain, discomfort or weakness complained of is “real”, in the sensethat the victim genuinely experiences it. 3 Those cases in which the trier of fact is not persuaded that the plaintiff does in truth experience the suffering in question have, orcourse, to be eliminated, for the most part by the ordinary tests of credibility.

Cases of the sort which then remain involve plaintiffs whoare found by the trier of fact to be telling the truth in saying that they continue to suffer when no physical reason for continuation of pain,weakness or discomfort can be found.

The problems of which these plaintiffs complain must be regarded as having a psychological,rather than physical, explanation. . . . 7 I think it useful, therefore, before going further into the facts, to state what, in my view, ought to be regarded as the basic principlesapplicable to these difficult cases. 8 To meet the onus which lies on a plaintiff in a case of this sort, and thereby avoid the ‘ultimate risk of non-persuasion’, the plaintiffmust, in my view, establish that his or her psychological problems have their cause in the defendant’s unlawful act, rather than in anydesire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not beexpected to overcome them by his or her own inherent resources, or ‘will-power’. 9 If psychological problems exist, or continue, because the plaintiff for some reason wishes to have them, or does not wish them toend, their existence or continuation must, in my view, be said to have a subjective, or internal, cause.

To show that the cause lies in anunlawful act of the defendant, rather than the plaintiff’s own choice, the plaintiff must negative that alternative. The resolution of thisissue will not involve considerations of mitigation, or lack of mitigation.

To hold otherwise, that is to say to place on the defendant theonus of proving that a plaintiff who suffers from a psychological problem had it within his or her own ability to overcome it, would be torequire that the defendant, rather than the plaintiff, bear the onus of proof on the primary issue of causation, and would impose ondefendants a heavy and unjustifiable burden.

If a court could not say whether the plaintiff really desired to be free of the psychologicalproblem, the plaintiff would not, in my view, have established his or her case on the critical issue of causation. 10 Any question of mitigation, or failure to mitigate, arises only after causation has thus been established. 11 Where the court finds that psychological injury has been suffered as a result of unlawful conduct of the defendant which theplaintiff has not the ability to overcome by his or her own inherent resources, the court must then, if mitigation issues are raised, decidewhether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff couldhave overcome the problem, or could in the future overcome it.

The advice might, for instance, be to eliminate treatment, make ‘lifestylechanges’ or adopt some psychotherapy, physiotherapy or exercise regimen.

Where appropriate remedial measures would resolve theproblem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, theproblem ought to have been resolved, or ought to be resolved. 12 Once the principles to be applied are recognized, the rest is a matter for the fact-finder to determine on the basis of the evidence inthe case, and it is for this reason that I find little guidance in many of the decisions cited. 13 It is not particularly helpful, in my view, to ask whether a psychological condition such, for instance, as the ‘chronic painsyndrome’, is ‘compensable’.

I say this because there seems to be no settled view within the medical community as to what suchdiagnoses – sometimes, indeed, called ‘non-diagnoses’ – mean. It is, moreover, unlikely that medical practitioners can answer, as amatter of expert opinion, the ultimate questions on which these cases often turn. The court must decide for itself the critical issues ofcredibility and the balance of probabilities between explanations for the plaintiff’s condition.

Views expressed by doctors on theplaintiff’s reliability, truthfulness or motivation cannot be decisive, for the law requires that these matters be decided by the court itself,and that they be decided on the basis of the evidence given at trial, which is often more extensive than, and sometimes differs markedlyfrom, that on which medical witnesses have formed their opinions. [68] That opinion received subsequent consideration by the British Columbia Court of Appeal in Yoshikawa v Yu 1996

3104 (BC CA), [1996] 21 B.C.L.R. (3d) 318 (CA) as reported by Chamberlist J in Wahl v Sidhu,

(2010) BCSC 1466 at para. 209 et seqas follows: [209] Some two years later, in Yoshikawa v. Yu (1996), (BC CA), 21 B.C.L.R. (3d) 318 (C.A.), the Court of Appealdetermined that it was important to understand what was established and what was not established by the Court’s decision in Maslen v.Rubenstein, supra. Commencing at paragraph 12 of that decision, the Court of Appeal set out a number of principles derived fromMaslen v. Rubenstein in determining a claim for injuries such as in the present case.

The Court stated: 12 It is important to understand what is established and what is not established by the decision in Maslen v. Rubenstein. I propose toset out a number of principles extracted from the reasons of Mr. Justice Taylor, for the Court, in the Maslen case. The first point is apreliminary point and appears in Maslen at p. 133 under the heading “(

a) The Background”: 1. The plaintiff must establish that the pain, discomfort or weakness is “real” in the sense that the victim genuinely experiences it. The remaining ten points are drawn from the part of the reasons headed “(

b) The Basic Principles” at pp. 134 to 137: 2. The plaintiff must establish that his or her psychological problems have their cause in the defendant’s unlawful act. 3. The plaintiff’s psychological problems do not have their cause in the defendant’s unlawful act if they arise from a desire on theplaintiff’s part for such things as care, sympathy, relaxation or compensation. 4. The plaintiff’s psychological problems do not have their cause in the defendant’s wrongful act if the plaintiff could be expectedto overcome them by his or her own inherent resources, or “will-power”. 5.

If psychological problems exist, or continue, because the plaintiff for some reason wishes to have them, or does not wish them toend, their existence or continuation must be said to have a subjective, or internal, cause. 6. If a court could not say whether the plaintiff really desired to be free of the psychological problems, the plaintiff would not haveestablished his or her case on the critical issue of causation. 7. Any question of mitigation, or failure to mitigate, arises only after causation has been established. 8.

It is not sufficient to ask whether a psychological condition such as “chronic, benign pain syndrome” is “compensable”. Such apsychological condition may be compensable or it may not. The identification of the symptoms as “chronic benign pain syndrome” doesnot resolve the questions of legal liability or the question of assessment of damages. 9. It is unlikely that medical practitioners can answer, as matters of expert opinion, the ultimate questions on which these cases oftenturn. 10. Mr.

Justice Spencer, at trial in the Maslen case, put the overall test quite correctly in these words: [C]hronic benign pain syndrome will attract damages ... where the plaintiff’s condition is caused by the defendant and is not somethingwithin her control to prevent. If this is true of a chronic benign pain syndrome, then it will be true also of other psychologically-causedsuffering where the psychological mechanism, whatever it is, is beyond the plaintiff’s power to control and was set in motion by the

defendant’s fault. 11. There must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence ofobjective symptoms, well beyond the recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances,may nevertheless suffice for the purpose. [210] Thereafter, commencing at paragraph 18 through 19, the Court went on to say as follows: 18. Some principles have emerged to help in dealing with questions of proximate cause. 19.

One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, atortfeasor must take the person injured by the tort in the actual condition of that person at that time. This has been called the “thin skull”principle. In its application to psychological problems it has been called the “egg shell personality” application of the principle. In myopinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered thanwould be given in cases where only physical injuries are suffered.

A predisposition to suffer psychological injury in circumstances suchas those brought about in a particular case by a defendant’s wrongful act does not relieve the defendant of the liability to compensate theplaintiff for the injuries represented by those psychological symptoms.

Such relief could only occur, as I have said, if the psychologicalsymptoms would have occurred in any event, even without the defendant’s wrongful act, through an application of the cause-in-fact test.Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances wherethere was an existing predisposition include Enge v. Trerise (1960), (BC CA), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v.Gray (1981), (ON CA), 17 C.C.L.T. 138 (Ont.C.A.), Elloway v. Boomars (1968), (BC SC), 69 D.L.R.(2d) 605 (B.C.S.C.), and Marconato v.

Franklin, (BC SC), [1974] 6 W.W.R. 676 (B.C.S.C.). [211] Thereafter, at paragraph 24, the Court stated: 24. ... I think it is correct to treat a plaintiff’s own conscious wish to receive care, comfort and attention, or the plaintiff’s ownconscious failure to exercise his or her willpower to bring about a healing of the symptoms, as coming within the principle of newintervening acts, and to treat those occurrences as giving such a sufficient new impetus or deflection to the chain of causation as to renderthe original wrongful act no longer a proximate cause.

But if the plaintiff’s wish to receive care, comfort and attention is accepted asbeing entirely unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, or if the plaintiff’sown failure to exercise his or her won willpower is unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing ofthe symptoms, then I would not be prepared to say that the plaintiff is still excluded from compensation for the psychological symptoms.In short, I think that the word “conscious” is implicit in points 3, 4, 5 and 6 that I have extracted from Mr.

Justice Taylor’s reasons inMaslen. [212] Finally, at paragraph 32 Mr. Justice Lambert said this: 32. It seems to me that there are two different types of psychological symptoms that may be covered by the principles that are herebeing discussed. There are those where the psychological symptoms have their origin entirely in the defendant’s wrongful act. Clearlythey are compensable.

And there are those psychological symptoms where the defendant’s wrongful act triggers a pre-existingpsychological condition so that both the defendant’s wrongful act and the pre-existing condition are causes-in-fact of the psychologicalinjury.

In the latter cases the psychological injury will be compensable on the basis of a pre-existing thin skull, except only in caseswhere the psychological problem is so dominant as a pre-existing condition and the injuries sustained n the accident are so trivial that theaccident can no longer be said to be a sufficient cause in law to support an award of damages on the basis of proximate cause. [69] In this case I do accept that the plaintiff suffers some pain, and there is, at least in some areas of his body, an objective basisto support his complaints.

However, I do not accept that the Plaintiff’s suffering is as invasive, pervasive or persistent as the plaintiffattempts to convey. In my view, he has consciously magnified his symptoms and consciously blames his symptoms on the 2003 accident,knowing that he was similarly situated before the 2003 accident occurred. [70] The path before the plaintiff to better health is clearly marked. It involves physiotherapy, some psychological therapy,

discontinuance of narcotic pain medications and conditioning. The plaintiff has not pursued that path, not because he is unable psychologically but because he has consciously chosen not to. [ 71 ] It follows, that the plaintiff does not have an egg shell personality. He has not established that he cannot feel better because of a flaw in his unconscious mind. 2. The Plaintiff ’ s Chest [ 72 ] The plaintiff suffered a fracture of the sternum which is compensable. He says he still has pain in his chest nine years later.

He could not, however, explain where or how the pain is experienced or how activities he described as increasing his chest pain could have that effect. There is no physical explanation for his pain complaints and the expert evidence was that the fracture should have healed within three months at the very most without any sequelae. [ 73 ] I have already commented on the plaintiff ’ s truthfulness. I do not accept his pain complaints as accurate. 3. The Plaintiff ’ s Jaw [ 74 ] The plaintiff did make complaint about jaw pain prior to 2003 but that did not cause Dr.

Thapar to make a referral and no treatment was sought. Plainly the accident of 2003 did lead to referral and treatment. The plaintiff did suffer injury to his TMJs which has been treated by splint therapy. I understand that the plaintiff must continue to wear his splint at night. [ 75 ] It appeared that the plaintiff was improving in the first year or year and one half while in Dr. Buck ’ s care but that he has not improved since. In fact one could interpret Dr. Buck ’ s evidence as suggesting that the plaintiff has regressed. Despite this, Dr.

Buck ’ s prognosis in 2012 has not changed from his prognosis in 2004. He is of the view that the plaintiff will return to normal function but should use the splint at night for the long term. Again, the plaintiff exaggerates his deficit.

His complaints do not fit with the physical evidence nor with the opinion of his specialist. [ 76 ] I accept that the plaintiff has continuing issues with his TMJ which involve episodic pain if he chews too vigorously or opens too wide but beyond that, I think it is more reasonable to attribute the plaintiff ’ s continuing complaints of headache and generalized pain to the injuries suffered in the 1997 accident, degenerative change, medication abuse and exaggeration. 4. Right Hip and Upper Thigh [ 77 ] The plaintiff complains of pain in his upper right thigh and hip.

He says it is not connected to his back injury. He feels he hurt these areas when his right knee struck the dash in the 2003 accident. [ 78 ] The evidence of Dr. Thapar was that the plaintiff made no complaint about his hips until six months after the accident. The imaging done in the pelvic area suggests degenerative change. In my view, it is most likely that the plaintiff ’ s complaints in this area relate to the effects of degenerative change. 5. Right Knee [ 79 ] Although there is no damage done to the dash of his car, I accept that the plaintiff injured his knee in the 2003 collision.

It is also apparent that the plaintiff had right knee troubles prior to 2003, as reported by Dr. Thapar. The complaints then included pain and swelling. The imaging done on the plaintiff ’ s right knee subsequent to the 2003 accident demonstrate degenerative change as opposed to traumatic injury. The pain which the plaintiff describes is consistent with the degenerative change in his right knee.

[ 80 ] I attribute some pain and suffering to the accident but in my opinion, to the extent that there is continuing pain in the right knee, it is as likely as not that that pain has its origin in the events prior to 2003, degenerative change or a combination, thereof. 6. Psychological Injury [ 81 ] The plaintiff claims that he is now afraid to drive on the highway and has developed depression which limits his functioning. a. Depression [ 82 ] In January and March 2002 Dr. Thapar ’ s chart notes that the plaintiff is depressed. It is not clear whether that is the plaintiff ’ s description of his mood or Dr.

Thapar ’ s assessment of the plaintiff ’ s mood. However, Dr. Thapar had been prescribing Elavil for the plaintiff for at least two years prior to the 2003 accident. Elavil is an anti-depressant. I think it likely that the combination of pain from the 1997 accident and unemployment led to the plaintiff ’ s depressed mood and the prescription for Elavil. [ 83 ] The plaintiff saw Dr. Garbhram for a psychiatric consultation in June 2003. The doctor ’ s note states that the plaintiff has a major depressive disorder. Alberta Health records disclose four office visits with Dr. Garbhram from May through August, 2003.

One presumes that those visits related to the treatment of the plaintiff ’ s depression. Apart from that intervention, nothing was done until the plaintiff was referred to Dr. Cynthia Blackman. She saw the plaintiff on April 11, 20, and May 2, 2005. There was a good deal of psychological evidence presented at the trial. There appeared to be considerable disagreement between the psychologists. However, the disagreements related firstly to whether the plaintiff could be trusted in his description of his history, his circumstances and his effort to demonstrate ability.

The secondary disagreement related to the extent of the plaintiff ’ s depression and whether his report of his symptoms justified labelling him as suffering from Post Traumatic Stress Disorder. [ 84 ] As I have said I do not accept the plaintiff ’ s representations and find myself in agreement with Dr. Keegan on that subject. Additionally, I am inclined to accept the opinions of Dr. Blackman and Dr.

Keegan that the plaintiff is not properly labelled as a PTSD sufferer. [ 85 ] However, the experts did agree that the plaintiff is suffering from depression and that the accident of 2003 served to trigger that injury. [ 86 ] Plainly by history, the plaintiff had been depressed and that was the case until November, 2002 given the renewal of his prescription for Elavil by Dr. Thapar. I am of the view, however, that obtaining his dream job with Rose in late December 2002, must have served to elevate his mood, despite the ongoing pain from the 1997 accident.

I come to that conclusion, in part, because, despite only getting a 60-day prescription for Elavil, on November 4, 2002 the plaintiff did not seek to renew it before the February 2003 accident. [ 87 ] That is consistent with his history of periodic use of Elavil. That pattern shows someone whose mood is sometimes cause for complaint and treatment and sometimes not. [ 88 ] The accident of 2003 caused an aggravation of pain, one of the depression triggers and caused the loss of the dream job at Rose, the second depression trigger. The plaintiff was vulnerable to becoming depressed.

He was emotionally fragile and the accident served, in part, directly and in

part indirectly to shatter his mood. [ 89 ] The plaintiff's depression, which he continues to struggle with, was caused by the 2003 accident. However, in my view, while the plaintiff was vulnerable and therefore a thin skull, he was also vulnerable even without the accident of 2003 to arrive at the same place he is in today and he is thus also a crumbling skull. I will deal with those issues and mitigation when I come to consider general damages.

b. Anxiety [ 90 ] Despite the finding that the plaintiff is not a truthful source of information respecting his condition, I do accept that he is anxious while driving on the highway. That conclusion is buttressed by the expert psychological evidence. There is no reason, however, to conclude that the anxiety is permanent and untreatable. c. Does the depression explain the plaintiff's pain behaviours? [ 91 ] Earlier in these reasons, I explained why I did not conclude that psychological deficits out of the control of the plaintiff were the root cause of his pain complaints.

I concluded that the plaintiff was in fact in pain, that he consciously exaggerated his pain, that he underestimated the problems he had as a result of the 1997 accident and that he overestimated the change in his condition resulting from the 2003 accident. For those reasons I have concluded that depression is not the cause of the plaintiff's pain behaviours. However, it is clear that his depression does have a pain focus and one does therefore feed the other. B. General Damages 1.

Risks and Contingencies [ 92 ] One of the key premises of the plaintiff's claim is that he had secured his dream job with Rose and he would have continued at that job until he decided to retire. Implicit in that argument is the assumption that the plaintiff could perform the job, despite his deficits from the 1997 accident. As the job was described, and given the complaints the plaintiff had been making, since 1997, there appears to be an increased risk that the plaintiff may not have been able to perform at an acceptable level.

On the other hand, he did perform at least some of the required tasks in the three weeks he worked at the position before the 2003 accident occurred. Mr. Gill did not offer any criticism of the plaintiff's performance in those three weeks. [ 93 ] Also implicit in the plaintiff's argument is the assumption that Rose would employ the plaintiff in the position as long as the plaintiff chose to remain. That assumption must be tempered by the fact that the plaintiff worked for Rose on two occasions prior to 2003 and was laid off twice, once after five years.

Further risk adjustment is necessary to reflect the fact that in 2003 the plaintiff would have been the fourth or fifth supervisor, but today Rose employs only two supervisors because of a fluctuation in its business. [ 94 ] On the other hand, when the plaintiff was hurt in 2003 his job was given to an employee who would have worked under the plaintiff. That employee is still doing the same job today. [ 95 ] The risk of unemployment is not only relevant to the plaintiff's pecuniary loss claims, it is also relevant to the assessment of general damages.

The job with Rose was fundamental to the plaintiff's mood elevation. Had he lost that job, even if not injured in 2003, his history would suggest descent into depression and his pain focus would serve to fuel that slide which would in turn fuel his sensitivity to pain. 2. Mitigation [ 96 ] The plaintiff did virtually nothing to address his physical deficits or his psychological deficits since 2003. In fact from 2004 onward the only physical treatment he has received is wearing a splint for his jaw.

He is out of condition and despite recommendations to get active he does very little. [ 97 ] In terms of psychological health, he took some treatments with Dr. Eliuk in 2006. Dr. Eliuk recommended a series of 18 more treatments which would have cost less than $3,500. The plaintiff blamed his failure to pursue those treatments on his insurer's refusal to pay for them. While Dr. Eliuk's opinion was that the treatments the plaintiff did have did not result in as much gain as he hoped or

expected, he was guardedly optimistic of further gains with the additional treatments. [ 98 ] There is also the matter of the plaintiff's continuing use of codeine based pain killers for in excess of 14 years. Dr. Hoffman recommended weaning and cessation of use in 2003 and yet the plaintiff continues to use this pain relief and Dr. Thapar continues to prescribe it for him. I accept Dr.

Hoffman's evidence as supported by many of the other experts, that continued use of a codeine based pain killer indicates a euphoric dependency which begets drug seeking behaviours such as continuing to report pain to get the needed drugs. I also accept that drug dependency reflects itself in decreased function, energy dissipation and decrease in activity. I accept Dr. Hoffman's opinion that the prolonged use of T-3s by the plaintiff in the quantities prescribed for him is indicative of drug dependency. 3.

Authorities [ 99 ] I have reviewed the authorities provided to me by the parties including: Meehan v Holt , 2010 ABQB 287 ; Prosser v 20 Vic Management Inc. , 2009 ABQB 177 ; O'Scolai v Antrajenda , 2008 ABQB 257 ; Ye v McConnell , 2001 ABQB 94 ; Duchynski v Rumsey , 2003 ABCA 164 ; Imbir v Barron , 2006 ABQB 419 . [ 100 ] As I have indicated, the plaintiff has continuing but relatively minor TMJ difficulties, continuing but relatively treatable depression and continuing but likely treatable anxiety.

The spinal, hip and knee pain the plaintiff continues to experience were exacerbated by the 2003 accident but only for a limited period. The fracture of the plaintiff's sternum should have resolved after three months. [ 101 ] For the foregoing injuries I would award $60,000 as general damages. C. Pecuniary Losses 1. Loss of Income a. Rose Employment [ 102 ] There is no doubt that the plaintiff lost his job with Rose because of the accident.

The evidence also establishes that the plaintiff had not found any janitorial supervisory position comparable to the Rose employment in the period between managing the Mac's convenience store and the date he secured the Rose job. Indeed it is clear that he had really no success securing that kind of work over the last 25 years except for brief periods unless he worked with Rose. In my view, the defendant bears responsibility for having deprived the plaintiff of the golden opportunity the Rose job represented for him.

However, as I have said, the plaintiff's failure to mitigate and the risks associated with the Rose employment serve to limit the extent of the defendant's liability. [ 103 ] Firstly, in assessing the risk that his injuries and disabilities which existed before exacerbation by the 2003 accident would have limited his ability to continue the Rose employment, the evidence of Mr. Gill was that he thought the plaintiff did a good job in the three weeks he worked before the accident.

On the other hand, the plaintiff was mostly becoming familiar with his responsibilities and was not much engaged in the training and supplies provision that would tax his physical abilities. I would reduce the plaintiff's loss of income claim by 10% to account for this contingency. I recognize that, the plaintiff ’ s exaggeration of his difficulties might mean that he is in fact more capable of doing the work than he represented.

However, to try to assess to what degree the Plaintiff was more capable then he represented would be pure speculation and in any event, not the case the Plaintiff presented. [ 104 ] Secondly, the evidence establishes that Rose has reduced its compliment of supervisors by half. Mr. Gill did not tell us when that occurred or what criteria were employed in reducing his workforce.

He did testify that the person he promoted to replace the plaintiff is still in the position, but I don't know anything about that person or his abilities relative to the plaintiff's condition and the plaintiff's abilities as they existed prior to February 9, 2003. [ 105 ] In the circumstances I would reduc

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