Thibeault v. MacGregor, 2013 BCSC 808

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Thibeault v. MacGregor, 2013 BCSC 808 Date: 20130508 Docket: 12 0499 Registry: Victoria Between: Deborah Lee Thibeault Plaintiff And James Ian MacGregor Defendant Before: The Honourable Mr. Justice Weatherill Reasons for Judgment Counsel for the Plaintiff: F. K. Walton, Q.C. L. Kramchynski, Articled Student Counsel for the Defendant: R. Ashmead N. A. Mosky Place and Date of Trial Victoria, B.C. March 18 - 22, 2013 Place and Date of Judgment: Victoria, B.C.

May 8, 2013 Introduction [ 1 ] This action arises out of a rear-end collision that occurred on April 17, 2010 (the “accident”). Liability has been admitted. [ 2 ] The plaintiff says she is suffering from continuous and unrelenting pain that she attributes to the accident. She says the pain has ruined her life.

She seeks non-pecuniary damages, cost of future care and special damages. [ 3 ] The defendant says that the plaintiff’s accident-related injuries, if any, were minor, resolved in a short period of time and that any ongoing medical issues are the result of pre-existing conditions, including psychological disorders, severe chronic pain, disabilities and her failure to mitigate with proper therapy. Evidence at Trial The Plaintiff [ 4 ] The plaintiff is a 50 year old disabled mother of four children. By any measure, her family history is traumatic, replete with abusive relationships and drug use.

It appears that, in recent years, she has been able to improve those aspects of her life. [ 5 ] She left school after grade 11 to take up full time employment as a nurse’s aide in Victoria. She was employed in that capacity for over 28 years until 2008 when she strained her lower back while lifting a patient. She received temporary workers’ compensation benefits through WorkSafe BC. When she returned to work a few months later, she was unable to perform her duties due to back pain. She was laid off by her employer and, since then, has been on welfare. [ 6 ] She found that smoking marijuana relieved her back pain.

She has been imbibing in medical marijuana ever since. [ 7 ] From 2006 to 2008 the plaintiff used cocaine. In 2009 she enrolled in a drug counselling program. She claims that she has not used cocaine since that time. [ 8 ] In September 2008, the plaintiff had surgery to remove ovarian cysts. As a result of complications that arose during that surgery, the plaintiff underwent further surgery to remove a

section of her bowel in October 2008. Since then, she has suffered from

diarrhea. [ 9 ] In late 2008, the plaintiff qualified for and has since been receiving CPP disability benefits. She has also been receiving provincial disability benefits since 2009. She qualified for provincial disability benefits with the assistance of Dr. Salmaniw, her family physician of 24 years, whose letter of support prepared in or around August 2009 stated the following, in relevant part: Mr. [sic] Thibeault suffers from scoliosis, degenerative disk [sic] disease, general anxiety disorder with panic attacks, depression, and chronic diarrhea.

I can confirm that her conditions are severe, that they cause her to have continuous restrictions with day to day activities, and that she require [sic] continuous assistance with many of her tasks. When asked what her daily pain is like on a scale of zero to ten, ten being the most severe and zero being no pain, Ms. Thibeault noted that her average pain level is at a nine. She experiences this pain when walking, sitting, and standing. When walking, Ms. Thibeault walks at a significantly slower pace. When asked how long it takes her to walk a block, she said 10-15 minutes due to the pain....Ms.

Thibeault also has difficulty with public transportation because of the pain involved in sitting. She is unable to bend and currently stores things in high locations. She is also unable to do laundry, basic housework, or shop for groceries by herself....In addition to these restrictions, Ms. Thibeault is also continuously restricted in her ability to dress herself. She reports that it currently takes her 20 minutes o [sic] put on clothes due to the pain in her back... She is unable to sit for more than 30 minutes...She takes approximately 5 minutes to get in or out of a car due to her back pain. ... Ms.

Thibeault suffers from chronic depression, anxiety, and panic attacks when she is stressed.... [ 10 ] On cross-examination, the plaintiff agreed that Dr. Salmaniw’s letter accurately described her condition before the accident. [ 11 ] In a medical report dated December 21, 2009, Dr. Salmaniw wrote that he did not expect any improvement in the plaintiff’s degenerative lumbar disc disease or scoliosis and that her condition was likely to gradually worsen. [ 12 ] The accident occurred a little less than four months later on the plaintiff’s 48 th birthday.

She was stopped at the intersection of Glanford Avenue and McKenzie Avenue in Victoria waiting for traffic to clear. Her head was turned to the left. Suddenly, her 1986 Ford Tempo was rear-ended by the defendant’s 1991 Honda Civic. She did not see the defendant’s vehicle but, due to the force of impact, she estimates the defendant’s vehicle was travelling at approximately 30 to 40 kph at the time of impact.

The defendant immediately apologized to the plaintiff for the collision, told her that he had not been paying attention and admitted fault. [ 13 ] There was no damage to the plaintiff’s vehicle. [ 14 ] The plaintiff testified that, within 30 minutes of the accident, she began to feel pain in the left side of her neck, shoulder and shoulder blade. She could not lift her left arm without pain. There was numbness in her left hand. She also had pain in her left lower back. She attended a medical clinic three hours later. The doctor’s examination revealed neck, shoulder and upper back tenderness and strain.

She was prescribed muscle relaxants and physiotherapy was recommended. [ 15 ] That evening she had to leave her birthday celebration due to neck and shoulder pain. She testified that she did not sleep at all that night because of the pain. She said that, in the days that followed, the pain worsened. [ 16 ] She testified that the following pain symptoms arose after the accident:

a) headaches on the left side. She claims that her headaches have diminished since the accident but she still suffers from them approximately twice per week. Each headache lasts 15-20 minutes and, on occasion, causes her to vomit. She relieves the pain with Advil. She claims she was not prone to headaches prior to the accident;

b) her left neck and shoulder are painful every day and she “can hardly do anything” as a result. She says her symptoms have not improved since the accident. She says she cannot get comfortable in bed at night and her sleep is interrupted by this pain;

c) her left neck and shoulder pain travels down to her left lower back;

d) her neck audibly “cracks”;

e) initially she was unable to lift her left arm above her head. However, with physiotherapy, this problem resolved approximately two months after the accident;

f) she still has occasional tingling and numbness in her left hand;

g) commencing approximately one year after the accident, she developed numbness in her right hand;

h) although she had occasional sharp pain in her lower back prior to the accident, she was able to fully function. Since the accident the pain in her lower back has worsened and she can no longer function. [ 17 ] The plaintiff testified that she is no longer able to participate in the social activities she enjoyed prior to the accident, such as dancing, karaoke, walking with her grandson and other relatives and friends and visiting friends for coffee. [ 18 ] She says that she was sexually active prior to the accident.

However, since then, she is in too much pain and has had “no sex”. [ 19 ] She testified that a typical day for her now is getting out of bed at 6:00 a.m. to drive Murray Thiele (her live-in boyfriend) to work, which is a 30 minutes drive each way. She then spends most of the day lying on the couch watching TV. She picks Mr. Thiele up

from work at 4:30 p.m. He prepares their evening meal and she goes to bed at 10:00 p.m. [ 20 ] She claims that she slept well at night prior to the accident but, since the accident, she does not “sleep at all at night”. Later, she offered a more qualified response: “sometimes, I get a couple hours sleep”. [ 21 ] After the accident, the plaintiff attended numerous physiotherapy treatments, initially with Rod Mitchell of Langford Physiotherapy & Medical Acupuncture and subsequently with Jeff Harvie of Blue Water Physiotherapy. Mr. Mitchell’s physiotherapy approach was traditional.

It usually provided her with temporary pain relief for up to one day. She described Mr. Harvie’s physiotherapy treatments as more “hands on”. Mr. Harvie kneaded her neck and back and prescribed daily exercises. She testified that she had temporary pain relief after Mr. Harvie’s treatments for up to three days. Initially, she visited Mr. Harvie twice per week. She missed several appointments with him because of her chronic diarrhea and other medical issues. She was charged a cancellation fee on each occasion. [ 22 ] Dr. Salmaniw advised her to stop her physiotherapy treatment with Mr. Harvie.

She did so but later resumed them because she felt her condition was regressing without his treatments. Since the fall of 2012, the plaintiff has been seeing Mr. Harvie once per week. [ 23 ] The plaintiff was unable to pay for her physiotherapy treatments. She owes Mr. Mitchell $2,860.00 and Mr. Harvie $10,511.21.00 (a total of $13,371.21). She has agreed to pay those physiotherapy bills from the proceeds, if any, of this lawsuit. [ 24 ] The plaintiff was also referred to a psychologist, Dr.

Reeves, who by November 2012, successfully treated her driving fear and anxiety such that there are no further psychological effects arising from the accident. [ 25 ] Dr. Vondette conducted an independent medical examination (“IME”) of the plaintiff in October 2012. The plaintiff testified that Dr. Vondette’s examination of her involved him pushing his knuckles into her neck and shoulder area which caused her pain. He also had her do various other physical movements which she said were painful as well. She testified that Dr. Vondette’s examination of her began at 2:25 p.m. and ended at 2:36 p.m.

She then changed from a gown she had been given into her street clothes and left his office at 3:12 p.m. As will be seen below, Dr. Vondette’s version of this IME is quite different. [ 26 ] On cross-examination, the plaintiff denied advising Dr. Vondette that her chief complaint associated with the accident was her lower back. She insisted she told him that her neck, upper back and lower back were all chief complaints. She also denied advising Dr. Vondette that the tingling/numbness in her right hand was in the 4 th and 5 th fingers. Rather she insisted that she told Dr.

Vondette these symptoms were located in her 2 nd and 3 rd fingers. [ 27 ] The plaintiff told Dr. Vondette that she had not previously used cocaine. She said she lied because she was embarrassed. [ 28 ] The plaintiff also admitted to telling Dr. Salmaniw that she was not taking drugs and that she had been untruthful in that regard. She eventually confessed her drug problem to Dr.

Salmaniw after toxicology testing confirmed her use of cocaine and marijuana. [ 29 ] On cross-examination she also admitted to being involved in an accident in 1999 when she was a passenger in a vehicle that was rear-ended by a taxi travelling at 70-80 kph. She initially denied that the lower back injury she sustained was “serious”. However, after her examination for discovery transcript was put to her, she admitted that her back injury from that accident was, in fact, serious. She agreed that, in 2009, she advised Dr.

Salmaniw that she had “chronic severe lower back pain since 1999”. [ 30 ] On May 5, 2012 and again on December 5, 2012, the plaintiff saw Dr. Lynne MacKean, a physical medicine and rehabilitation expert. The latter consultation was for the purpose of obtaining a medical-legal report to be used at trial. In her medical-legal report, Dr. MacKean wrote that the plaintiff told her she did not have chronic neck or back pain problems following the 1999 accident. During cross-examination the plaintiff was adamant that she told Dr. MacKean of her chronic back pain. This inconsistency was not put to Dr.

MacKean during cross examination. [ 31 ] The plaintiff told Dr. MacKean that she had no history of problems with headaches prior to the accident. Her medical records pre-dating the accident were put to her on cross-examination. They revealed the following prior complaints of headaches:

a) June 26, 2008 Emergency Room hospital admission records : the plaintiff had been drinking and using cocaine and marijuana. She admitted to having headaches associated with her use of cocaine. The hospital discharge

summary states: “[t]his lady came in with severe headache and malaise”;

b) September 17, 2008 report from Dr. Hunt : “[i]n June, Deborah developed bilateral lower pelvic pain. This was associated with headaches and she was admitted to the hospital for a week where she was followed by a house doctor. Despite this report, the plaintiff was adamant that she had only had one headache on that one day; and

c) January 1, 2010 : the plaintiff was admitted to hospital after a fight with her boyfriend, complaining, inter alia , of headaches. [ 32 ] The plaintiff also admitted on cross-examination that her pre-existing bowel and pelvic problems keep her up at night. [ 33 ] The plaintiff agreed on cross-examination that the results of a CT Scan, ultra sound and X-ray of her neck and back after the accident were negative and showed no abnormalities other than age-related degeneration in the area of the C6-7 spine. [ 34 ] When asked about Dr.

Salmaniw’s August 2009 letter in which she is described as needing 10-15 minutes to walk one block, 20 minutes to put her clothes on, 5 minutes to get in or out of a car and unable to do basic housework, she answered “but it changed - I was able to vacuum and go dancing”. Her answer in this regard was simply not credible. [ 35 ] She also agreed telling another physician, Dr. Winston, in 2008 that her lower back pain started eight years earlier and that she has had no improvement.

Robert Fredette [ 36 ] Mr. Fredette is the plaintiff’s younger brother. He was a passenger in the plaintiff’s vehicle at the time of the accident. He was not injured. He confirmed the plaintiff’s version of the event. [ 37 ] Mr. Fredette also confirmed that the plaintiff left her birthday party that evening after complaining of pain in her neck and shoulders. [ 38 ] Mr. Fredette testified that the plaintiff was unable to participate in a family celebration at the plaintiff’s home after the accident due to pain and that she kept to herself. Carmen Mitchell [ 39 ] Ms. Mitchell is a friend of the Plaintiff.

They met in the Spring of 2008. [ 40 ] She described how they went dancing together once a week prior to the accident. The plaintiff was very social and danced for hours, unimpeded by health issues. [ 41 ] Ms. Mitchell testified that, prior to the accident, she and the plaintiff performed karaoke approximately twice a month, which involved the plaintiff being up on a stage singing and dancing. She and the plaintiff also spent evenings together watching television, shopping and going on short walks. Occasionally, the plaintiff slept over at Ms. Mitchell’s apartment.

She testified that there was never an issue with the plaintiff’s sleep or health prior to the accident. [ 42 ] Ms. Mitchell confirmed that the plaintiff left her birthday party early on April 17, 2010 due to pain. [ 43 ] After the accident, the plaintiff stopped going to Ms. Mitchell’s apartment as frequently. When she did come over and stayed overnight, the plaintiff was often awake during the night, crying and complaining of pain in her neck and shoulders. [ 44 ] Ms. Mitchell has observed a big difference in the plaintiff before and after the accident.

The plaintiff now stays at home and they do not do the things they used to do because the plaintiff says she is in too much pain. They have not gone dancing or to karaoke since the accident. [ 45 ] On cross-examination Ms. Mitchell confirmed that the plaintiff did not appear to have any problems with her health or other physical limitations prior to the accident. Although Ms. Mitchell was aware of the plaintiff’s work-related back injury and her bowel surgery, the plaintiff had not discussed her family and other health issues with her. Murray Thiele [ 46 ] Mr. Thiele met the plaintiff in July 2011.

They have been living together since October 2011. [ 47 ] He said the plaintiff spends most of the weekends lying on the couch at home. He does the housework and most of the cooking. Their social life is virtually non-existent due to the plaintiff’s neck and shoulder pain. [ 48 ] They share the same bed. He said the plaintiff’s neck “cracks at night”. He is often awakened in the middle of the night by the plaintiff who is already awake due to pain. [ 49 ] He was not asked whether he and the plaintiff are able to have sex. [ 50 ] He described the plaintiff as a “moderate” drinker.

She consumes a couple of glasses of wine on the weekends. Janet Bremner [ 51 ] Ms. Bremner is the plaintiff’s aunt. [ 52 ] Prior to the accident, Ms. Bremner and the plaintiff went dancing and walking together. The plaintiff would visit Ms. Bremner at her home and would stay for several hours. She described the plaintiff as “upbeat, bouncy and outgoing”. [ 53 ] Ms. Bremner testified that the plaintiff has not been the same person since the accident. She is no longer upbeat, bouncy and outgoing. She and the plaintiff no longer go dancing. They tried walking but the plaintiff had to turn around after 1.5 blocks.

The plaintiff rarely visits her home anymore because the pain makes her uncomfortable. Ms. Bremner testified that she can see the pain in the plaintiff’s face. Dr. Nancy Reeves [ 54 ] Dr. Reeves is a psychologist who specializes in the areas of trauma, grief and loss. She provided opinion evidence regarding the consequences of the accident on the plaintiff. Her expert report was admitted without debate or qualification. [ 55 ] The plaintiff attended six one-hour psychotherapy sessions with Dr. Reeves, once per week, between October 2 and November 13, 2012.

During the October 10, 2012 session, the plaintiff told that her pain level was “6 out of 10” and “gets to 10 every day in the afternoon”.

[ 56 ] The plaintiff’s anxiety condition improved dramatically during their sessions. This assessment was not based solely upon the plaintiff’s self-reporting. According to Dr. Reeves, anxiety in a person is very visible and she could see improvement in the plaintiff’s anxiety level. [ 57 ] The plaintiff told Dr. Reeves during her last session that her poor sleep had improved moderately. [ 58 ] Dr. Reeves testified that, during their early sessions, the plaintiff’s anxiety level increased when she talked about the accident. [ 59 ] Dr.

Reeves’ treatment focused on managing the plaintiff’s pain and anxiety condition. She assumed the plaintiff was unable to work and was on disability prior to the accident due to a chronic bowel problem. Dr. Reeves was not aware of the plaintiff’s pre-accident history of general anxiety disorder, panic disorder, depression, degenerative disc disease or scoliosis. The plaintiff had told her that the cause of her pain was the accident and, because the plaintiff’s condition improved quickly during their sessions, Dr. Reeves did not feel the need to delve into the plaintiff’s background. [ 60 ] As a result of Dr.

Reeves’ treatment, the psychological effects of the accident on the plaintiff were resolved. [ 61 ] Dr. Reeves was of the opinion that the plaintiff may benefit from a further six to eight sessions with her to ensure that she does not lose the pain-reduction strategies she has learned to date. Moreover, it was her opinion that the plaintiff will need these further sessions if she either experiences another significant anxiety stressor or does not improve physically. [ 62 ] It was Dr. Reeves’ opinion that the plaintiff has not fabricated her psychological symptoms. [ 63 ] Dr.

Reeves charged the plaintiff $870.00 for her services. [ 64 ] Dr. Reeves was a delightful, knowledgeable, candid and helpful expert witness. I have no difficulty accepting her opinions and recommendations, which did not change when she was made aware of the plaintiff’s prior family history, medical issues and drug use. Dr. Walter Salmaniw [ 65 ] Dr. Salmaniw has been the plaintiff’s family doctor for many years. He described the plaintiff as a patient with a complex medical history.

He agreed that, at the time of the accident, the plaintiff was suffering from debilitating and chronic medical issues, including chronic low back pain. He noted, for example, she has suffered from:

a) generalized anxiety and panic disorder since 1987;

b) depression since 1988;

c) lumbar degenerative disc disease and chronic back pain since 1999;

d) substance abuse from 2006 to early 2009;

e) a mid/lower back strain on the left side in May 2008;

f) chronic diarrhea since October 2008; and

g) tension headaches in April 2009. [ 66 ] Dr. Salmaniw was qualified without objection as an expert in family medicine. His expert reports are dated July 25 and July 31, 2012. His opinions have not changed since then. [ 67 ] It was Dr. Salmaniw who recommended the plaintiff have physiotherapy treatment for her accident-related pain. Initially the plaintiff saw Rod Mitchell. She did not appear to be improving after almost one year of treatment with Mr. Mitchell so Dr. Salmaniw recommended that she see Mr. Harvie whose physiotherapy regime, while unorthodox, had met with 100% success in the patients Dr.

Salmaniw had previously referred to him. Unfortunately for the plaintiff, Mr. Harvie’s treatments did not improve her condition. In early 2012, Dr. Salmaniw referred the plaintiff to the Victoria General Hospital’s Chronic Pain Clinic, the waitlist for which is lengthy. She was not able to attend that clinic until shortly before trial. [ 68 ] In Dr. Salmaniw’s opinion, the plaintiff is suffering from chronic pain to her neck, shoulder and upper back as a result of the accident. He estimates that, at best, she will have an overall future improvement of 25% in her pain and functioning.

He believes that breast reduction surgery may help her chronic back pain. It is also his opinion that the plaintiff will continue to require physiotherapy and pain medication for her accident related injuries and other medical issues. [ 69 ] Dr. Salmaniw agreed during cross-examination that, prior to the accident, the plaintiff’s medical condition was “severe”, she was disabled by pain and was suffering from chronic depression, anxiety and panic attacks. Dr. Lynne MacKean [ 70 ] Dr. MacKean is a physiatrist, specializing in physical medicine and rehabilitation.

She began her medical career in1982 as a physiotherapist. She received her Doctor of Medicine degree in 1986 and specialized as a physiatrist in 1994. She was qualified without debate as an expert in the area of physical medicine and rehabilitation. [ 71 ] Dr. MacKean examined the plaintiff on March 5, 2012 and again on December 5, 2012. She agreed with Dr. Vondette’s opinion that, because the plaintiff’s neck was turned to the left at the time of the accident, she was more vulnerable to neck injury.

[ 72 ] She diagnosed the plaintiff with a grade 2 moderate whiplash injury to the plaintiff’s neck and left upper back which, in her opinion, was probably caused by the accident. She also diagnosed cervicogenic headaches caused by the accident. In her opinion, the plaintiff’s lower back pain was not caused by the accident but rather was a pre-existing condition. She disagreed with Dr. Vondette’s opinion that the plaintiff’s pre-existing medical conditions are the likely cause of most, if not all, of her current impairments, symptoms and disabilities. [ 73 ] Dr.

MacKean testified that the plaintiff did not complain of headaches during her March 2012 consultation. [ 74 ] Dr. MacKean was unable to provide a positive prognosis for the plaintiff’s recovery. In her opinion, as the plaintiff’s neck and back injuries were still chronic after two years, they are unlikely to resolve. However, in her opinion, active rehabilitation and exercise will likely benefit the plaintiff. She opined that, once a patient knows and is comfortable with a set of exercises, the patient can reasonably be expected to do them on her own. [ 75 ] On cross-examination, Dr.

MacKean agreed that knowledge of the plaintiff’s pre-existing mid to lower back injuries and other medical issues would have been relevant to her assessment of the plaintiff. Dr. MacKean testified that knowledge of the plaintiff’s medical history prior to the accident could have changed her opinion regarding the plaintiff’s headaches being caused by the accident. [ 76 ] Dr. MacKean stated that she does not believe in the cranial sacral therapy used by Mr. Harvie because it is not a science-based discipline supported by medical evidence. [ 77 ] Dr.

MacKean was an impressive witness whose opinions were expressed in a straightforward, helpful and objective fashion. I have no hesitation accepting them. Jeffrey Harvie [ 78 ] Mr. Harvie is a registered physiotherapist. He obtained his license in 1993. He was tendered as an expert in that field. No objections were raised. [ 79 ] The plaintiff attended 82 physiotherapy sessions with Mr. Harvie between August 2011 and August 2012. Mr. Harvie used a technique called cranial sacral therapy in these sessions. [ 80 ] Mr.

Harvie gave detailed evidence regarding what he described as his objective findings of the plaintiff’s condition, based largely upon a “passive” hands examination approach, including:

a) the plaintiff’s neck range of motion (ROM) was and is more restricted when she is standing than when she is sitting, which is extremely abnormal;

b) her neck flexion/extension was substantially restricted;

c) her shoulder ROM is almost full, however it deviated from normal movement in order to achieve it;

d) her breathing increased tension on the left side of her neck and upper scapular tissues; and

e) her left C5-6 facet joint was limiting her movement. [ 81 ] Mr. Harvie testified that the plaintiff’s physiotherapy treatment did not go as he had expected. It became clear to him in January 2012 that “not only had the head, neck and shoulder tissues suffered trauma, but that tension in these tissues were being influenced by problems elsewhere in the body, particularly in the thorax and the abdomen”. This led Mr. Harvie to conduct: ..thorough assessments of Ms.

Thibeault’s thoracic, abdominal, and pelvic regions, all of which demonstrated marked restrictions in the mobility of the visceral organs, connective and other soft tissues, and articular structures. It was relatively easy to demonstrate that these restrictions were influencing the tissues in the head and neck. [ 82 ] Mr. Harvie opined that the several traumas and resulting body system restrictions the plaintiff has experienced in her life have had a cumulative effect such that even a relatively small force that would not affect most people had substantial consequences for her. [ 83 ] In Mr.

Harvie’s opinion, the issue of whether the plaintiff should engage in active exercise to address her symptoms is extremely complex. There are delicate, sensitive tissues within the plaintiff’s body that are not moving as they should. Too much or excessive exercise may worsen the plaintiff’s tissue mobility and impart stress. He believes there is a realistic risk that exercise will exacerbate the plaintiff’s pain. However, gentle and slowly progressive mat-based exercises will be beneficial for her. Mr.

Harvie was unable to opine further on the best course of future treatment for the plaintiff. [ 84 ] On cross-examination, Mr. Harvie agreed that cranial sacral therapy was the subject of controversy in the medical profession many years ago but stated it is now a widely accepted therapy in physiotherapy was well as in dentistry and osteopathy. [ 85 ] Mr. Harvie agreed on cross-examination that he cannot identify whether and to what extent the plaintiff’s complaints were caused by the accident but confirmed his opinion that, with the plaintiff, her various traumas were likely cumulative. [ 86 ] Mr.

Harvie confirmed that the plaintiff owes him $10,511.21 for his physiotherapy services. Robert Carson [ 87 ] Mr. Carson is a well known economist who is eminently qualified to and did provide expert evidence regarding the present

value of any cost of future care that might be awarded to the plaintiff. He presented an expert report which included tables of those values. The Defendant [ 88 ] The defendant gave evidence about his version of the accident. He was driving behind the plaintiff’s vehicle as they both merged onto MacKenzie Avenue. Both vehicles came to a stop. As the plaintiff’s vehicle began to move forward, so did he. As he was moving forward, he looked over his left shoulder for traffic approaching along MacKenzie Avenue. Unbeknownst to him, the plaintiff’s vehicle had stopped ahead of him and the collision occurred.

He estimated that the initial distance between the two vehicles was one car length and that he was travelling at 10 to 15 kph at the time of impact. [ 89 ] The defendant was not injured. It seemed to him that the plaintiff, too, was uninjured.

After the collision, he observed her get out of her car, get back into her car, drive to a nearby bus stop, get out of her car again to exchange information with him and get back into her car, all without any apparent difficulty. [ 90 ] Although the damage to the defendant’s 1991 Honda vehicle was relatively minor, his vehicle was written off by ICBC because the estimated repair cost exceeded its value. Dr. Vondette [ 91 ] Dr. Vondette is a physiatrist, specialising in physical medicine and rehabilitation. He was retained by the defendant to conduct an IME of the plaintiff.

He examined the plaintiff on October 22, 2012. He provided to defence counsel a medical/legal report dated December 10, 2012 (“Vondette Report”). [ 92 ] The plaintiff objected to the admissibility of the Vondette Report on the following grounds:

a) it does not provide an opinion on the issues in this proceeding and is therefore irrelevant;

b) the opinions expressed are outside of Dr. Vondette’s area of expertise;

c) it contains comments and opinions that are irrelevant to this proceeding;

d) it is not an impartial analysis but rather advocacy in the guise of an expert report;

e) it contains comments on the plaintiff’s credibility;

f) it is prolix and inordinately repetitive; and

g) is typical of reports Dr. Vondette has been criticized for in other proceedings. [ 93 ] The Vondette Report is 101 pages in length. The opinion

section is 40 single-spaced pages. In addition, there are five appendices:

a) Appendix A : “History as obtained from Deborah Thibeault on October 22, 2012 and a

Summary of the Findings on the Physical Examination of Ms. Thibeault on October 22, 2012” (22 pages, single spaced);

b) Appendix B : “Documents Reviewed Concerning Deborah Thibeault” (89 documents listed in five single-spaced pages)

c) Appendix C : “Facts and Factual Assumptions Relied upon in Forming My Opinion Concerning Ms. Deborah Thibeault” (118 single- spaced paragraphs over 24 pages);

d) Appendix D : “Additional Information Concerning Clinical Concepts Discussed Within the Medicolegal [sic] Report (5 single-spaced pages); and

e) Appendix E : “Qualifications” (one single spaced page). [ 94 ] The “Opinion”

section of the Vondette Report is comprises 80 sections and subsections. The following are some typical examples: Opinion concerning Ms. Thibeault’s current :symptoms” in respect to neck pain and stiffness Based on the facts and factual assumptions set out in

Schedule “C” (page 17), it is my opinion that Ms. Thibeault currently reports experiencing daily neck pain, involving only the left side, primarily over the lower left neck, but also at the cervico-occipital junction (i.e., where the neck meets the skull). The neck pain was reported to be aggravated by lifting (although she said she didn’t do this “anymore”) and by walking. The pain was said to last for “hours”. She would obtain relief from taking Advil gel capsules (i.e., ibuprofen, - an anti-inflammatory). Opinion concerning Ms. Thibeault’s current “disabilities” in respect to home and yard maintenance Based on the facts and factual assumptions set out in

Schedule “C” (page 22), it is my opinion, in the context that she currently has no garden that Ms. Thibeault reports that she leaves the lawn mowing to her boyfriend, in which respect it is my opinion generally that most middle aged females would consider lawn mowing to be a “man’s job” anyway.

Opinion concerning Ms. Thibeault’s current “disabilities” in respect to recreational activities Based on the facts and factual assumptions set out in

Schedule “C” (page 23), it is my opinion that whereas pre-MVA Ms. Thibeault reported that she did “a lot” of “dancing” that she now advises that she hasn’t “been able” to do this since the MVA. In this respect, it is my opinion that particularly from May 2008 through April 2010 Ms. Thibeault most probably wasn’t doing that much dancing, prior to the MVA, given her report at that time of the severity of many of the difficulties she was experiencing at that time, including back pain, such that it would take her fifteen minutes to walk a block, etc. Opinion concerning Ms. Thibeault’s current “disabilities” in respect to social activities Based on the facts and factual assumptions set out in

Schedule “C” (page 24), it is my opinion that Ms. Thibeault’s unfortunate track record in respect to her previous long-term relationships makes it exceedingly difficult to conclude that her boyfriend of the past 1.5 years (i.e. “Murray”) necessarily would have more assets than liabilities, in respect to making any predictions about the long range prospects for this relationship.

In my opinion, his apparent willingness to carry out many IADL tasks on her behalf, which could be construed as being an indicator of helpfulness, could just as easily be viewed as being a behaviour which consciously or subconsciously would help to reinforce Ms. Thibeault’s perception of herself as being “disabled”. [ 95 ] Counsel provided detailed written submissions on the issue of the Vondette Report’s admissibility. I agree generally with the submissions of plaintiff’s counsel. Dr. Vondette’s report is prolix in the extreme. Dr.

Vondette’s review of the plaintiff’s background was beyond thorough and comprehensive - it reported the minutia of the plaintiff’s social, family, psychological and medical history. He opines on matters that have no relevance to the plaintiff’s claim in this proceeding: He overreaches into the areas reserved for the trier of fact. He makes remarks that go solely to the plaintiff’s credibility. His report in many places is argument in the guise of opinion.

Much of the report purports to be opinion when what is written is not an opinion at all but rather a regurgitation of the plaintiff’s complaints. [ 96 ] The only portion of the Vondette Report from which I was able to discern any useful opinion is under the

section “Opinion concerning the April 17, 2010 MVA” and its “Severity” on page 13 where Dr. Vondette states: ....It is my opinion that because she had her neck rotated at the time of impact, that she would have been more susceptible to sustaining a more significant injury to her neck, but probably not her back, although the antecedent history of scoliosis and chronic back pain almost certainly also would have increased the likelihood of sustaining a somewhat more significant injury than would have been the case otherwise. [ 97 ] After hearing counsel’s submissions, I concluded that Dr.

Vondette was probably an expert whose opinions, properly articulated, could be of benefit to the Court. Although I found the vast majority of the Vondette Report to be inadmissible, I decided that it was in the interest of justice to grant leave allowing Dr. Vondette, with counsel’s assistance, to produce a

summary of those portions of the Vondette Report that are properly admissible. [ 98 ] Dr. Vondette did so. His

summary (“Summary”) is two pages in length and captures succinctly and helpfully the opinions he was attempting to express in his report. The

Summary, together with counsel’s letter of instruction and appendices “A” and “E” from the Vondette Report were collectively marked as Exhibit 7. [ 99 ] Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was the

Summary. He returned to the prolix method of communicating that he suffered from when writing his report. He sought to justify this communication method on the basis that “I am a competent and thorough physician” and that any review of the plaintiff’s circumstances that was less than comprehensive and itemized is “rubbish”. [ 100 ] Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it.

In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy. He testified that his expertise is such that he tells physiotherapists “exactly what I want done”. [ 101 ] Dr. Vondette’s physical examination of the plaintiff lasted approximately 30 minutes. He was adamant that his examination was gentle and that he did not hurt her.

He also said he spent approximately two hours with the plaintiff discussing her medical history. [ 102 ] It was clear to me that Dr. Vondette formed a negative and unflattering subjective opinion of the plaintiff based on her personal and medical history as well as her history of substance abuse. His negative views of her were heavily influenced by Dr.

Salmaniw’ August 2009 letter and December 2009 Medical Report in support of the plaintiff’s disability benefits application, together with his understanding that the plaintiff’s vehicle was not damaged during the accident, that no emergency personnel were dispatched, that the plaintiff was able to drive away from the accident and that the walk-in clinic physician diagnosed a soft tissue injury and did not see fit to order an X-ray.

He formed the unyielding conclusion that the plaintiff’s accident-related injuries could not have been anything other than minor and that any suggestion to the contrary was not credible. In Dr. Vondette’s opinion the plaintiff suffered, at most, a mild to moderate whiplash injury that resolved quickly. In his view, given “the type of person we’re dealing with” and her “track record”, the plaintiff was a member of a “subset of individuals who want to have symptoms for a longer period of time”. [ 103 ] Dr. Vondette was argumentative and condescending throughout his cross-examination.

Virtually all of his answers were lengthy monologues. He was critical of Dr. MacKean’s March 5, 2012 report because it was only two pages in length. He was critical of her December 5, 2012 report because, in forming her opinion, she reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two July 2012 reports. [ 104 ] Dr. Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor for more than 20 years, knew more about the plaintiff and what was best medically for her than he did after a three hour consultation. In Dr.

Vondette’s words: “I think I can reasonably size up what’s going on here”. [ 105 ] Finally, Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore theories followed by a bunch of over-

excited disciples”. In his view, the plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a physiotherapist who is moreorthodox and who performs scientifically validated forms of treatment. [106] Needless to say, the approach to the role of an expert witness in the context of court proceedings that Dr. Vondette followed isunhelpful, counterproductive and is to be discouraged. It is not within the purview of an expert witness to determine facts or issues ofcredibility and reliability: Brough v. Richmond, 2003 BCSC 512 at paras. 14 - 17. Unfortunately, Dr.

Vondette allowed his subjectiveviews of the plaintiff formed from his review of her medical and personal history to overwhelm whatever impartiality he may initiallyhave had. I have been unable to take meaningful guidance from his opinions and testimony. To the extent that his opinions conflict withthose of Drs. Salmaniw, MacKean and Reeves, I accept the opinions of the latter experts and reject those of Dr. Vondette. Analysis General Damages [107] Defendant’s counsel argues the collision impact was so negligible that the plaintiff could not have suffered any significantinjury.

Alternatively, he argues that the plaintiff has either exaggerated her pain or it is attributable to her pre-existing condition. [108] This is the classic position taken by defendants in low-velocity impact collision cases. They assert that, given the negligibleforce imparted during the collision, the plaintiff could not possibly have been injured. As I stated recently in Christoffersen v. Howarth,2013 BCSC 144 at para. 54, this approach was commented upon almost twenty years ago by Mr. Justice Thackray (as he then was) inGordon v.

Palmer, (1993), (BC SC), 78 B.C.L.R. (2d) 236 (S.C.) at 237 (excerpted in full in ): I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the InsuranceCorporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I havenever heard it endorsed as a medical principle. Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage mayleave those involved unscathed.

The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on thejudicial process. In the case at bar the limited amount of motor vehicle damage is not, in my opinion, the yardstick by which to measure the extent of theinjuries suffered by the plaintiff. No evidence was called to substantiate the theory of ‘no physical damage: no injury’. The plaintiffalleged serious back injuries and resultant damages.

The extent will be decided on the evidence. [109] More recently, in Hoy v. Harvey, 2012 BCSC 1076, Madam Justice Fitzpatrick wrote: [44] The defence submits that Mr. Hoy could not have sustained his claimed injuries from such a minor impact. The defendants rely onthe comments made by the Court in Sinclair v. Norman, 1996 CarswellBC 1761 (Prov. Ct.) where the Court dismissed the claim wherethere had only been a “light touch” or “nudge”: [16] Common sense will tell me that surely there has to be a threshold of impact for any soft tissue injury.

Given the evidence in thiscase of a light touch of the independent witness or imperceptible nudge of the Defendant. I cannot on balance conclude that the Claimanthas the causation established necessary to find in her favour. [45] Evidence of the damage caused and the impact generally can be one of many factors considered by the Court in thedetermination of what injuries, if any, were caused by the accident. In Miller v.

Darwel, 2005 BCSC 759 , 2005 BCSC 759, theCourt stated: [9] On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue ofliability. In support of this position the claimant relies upon the case of Gordon v. Palmer (BC SC), (1993), 78B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray J. (as he then was) said at para. 4: I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the InsuranceCorporation of British Columbia may follow, but it has not [sic] application in court.

It is not a legal principle of which I am aware and Ihave never heard it endorsed as a medical principle. [10] As other judges who have considered this passage have already said, these words should not be taken to mean that the extent ofdamage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury. [11] I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J.

No. 1400 (B.C.S.C.), when he said at para. 7: Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of theplaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may,depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury. [110] I echo these sentiments here, as I did in Christoffersen.

Causation and the extent of any injury are to be decided on the whole ofthe evidence before me. [111] I accept that the collision was relatively minor. I accept the defendant’s evidence that his vehicle collided with the plaintiff’sstationary vehicle at a speed of approximately 10-15 kph. However, low impact collisions can cause injury: Lubick v. Mei, 2008 BCSC555 at paras. 5-6. I accept the plaintiff’s evidence that she was injured as a result of the accident. Causation has been established by the

plaintiff. [112] Based upon the evidence before me, I find the plaintiff suffered a moderate whiplash injury to her the left side of her neck andshoulder as well as an exacerbation of her pre-existing injury to her mid and lower back. [113] However, I do not accept that the plaintiff was injured to the extent she has suggested.

I agree with counsel for the defendantthat, in circumstances such as this where the plaintiff’s complaints are not supported by any objective evidence of persistent pain and arebased entirely upon her self-reporting , the Court must exercise caution and examine all the evidence carefully so as to arrive at fair andreasonable compensation: Loik v. Hannah, 2009 BCSC 1196 at para. 34. [114] I find that the plaintiff has exaggerated the pain she suffered and continues to suffer as a result of the injuries she sustainedduring the accident. The plaintiff’s evidence was rife with inaccuracies and embellishment.

For example:

a) she initially denied that the back injury she sustained in the 1999 accident was serious, but when confronted with her examination fordiscovery transcript, she conceded that it was a serious injury;

b) her evidence in chief was that, prior to the accident, she had sharp lower back pain once every couple of weeks. Yet, she advised Dr.Winston in May 2008 that her low back pain started eight years earlier following a motor vehicle accident and that “she has had noimprovement in the chronic bilateral low back pain”. She told Dr. Salmaniw in 2009 that she had “chronic severe lower back pain since1999”.

c) the plaintiff denied advising Dr. MacKean that she did not have chronic neck or back pain problems following the 1999 accident;

d) she claimed she did not have headaches prior to the accident, however her medical records disclosed previous issues associated withheadaches, albeit following specific events. She says she now suffers from severe headaches twice per week but did not complain of anyheadaches to Dr. MacKean in March 2012;

e) she estimated that the collision impact speed was 30-40 kph yet there was no damage whatsoever to her vehicle. Plaintiff’s counselread in excerpts from the examination for discovery of the defendant. One such excerpt was as follows: 50 Q. So do you know how fast you were going at the time the accident took place? A. I would assume maybe about 10 kilometres an hour.

f) her evidence was that, since the accident, she has had “no sex” - I do not believe this evidence;

g) she testified that, since the accident, she doesn’t sleep at all at night - later she said that sometimes she gets a couple hours sleep. Yetshe admitted that her pre-existing bowel problem keeps her up at night. She also told Dr. Reeves and Jeff Harvie that her sleep hasimproved.

h) she told Dr. Reeves that her pain every afternoon was 10 out of 10, in other words the worst pain imaginable.

i) eight months before the accident she claimed through Dr. Salmaniw, in support of disability benefits, to have continuous restrictionswith day to day activities, that it took her 10 to 15 minutes to walk a block, that she was unable to do laundry and basic housework orshop for groceries, that it took her 30 minutes to shower, 20 minutes to put her clothes on and five minutes to get in or out of a vehicle,due to pain, yet she was able to dance for four or five hours and sing karaoke on stage without difficulty;

j) a mere four months before the accident she claimed in support of disability benefits to be disabled to the point that she could notwork, that no improvement was expected and that her condition would gradually worsen. Yet she said in the intervening four months itgot better and that she was able to vacuum and go dancing. [115] At the time of the accident, the plaintiff was not healthy and was in poor physical condition. She left the work force in 2008 duesevere lower back pain and abdominal difficulties. Since then, she has been on disability.

I accept that her prognosis for a recovery ofher health is poor. [116] Given the plaintiff’s previous medical history, her attempt to attribute virtually all of her post-accident woes to the accidentdefies credulity. [117] However, the lay witnesses, whom I find were credible, contradicted virtually everything contained in Dr. Salmaniw’s August2009 letter and December 2009 Medical Report. If I accept the veracity of the statements made in those documents, I cannot accept thatthe plaintiff’s current subjective complaints are attributable to the accident.

If I accept that the plaintiff’s current subjective complaintsare attributable to the accident, I cannot accept the veracity of the documents prepared in support of her disability claim. [118] The plaintiff has burden to prove, on the balance of probabilities, the extent that her current injuries were caused by theaccident. In my view, she has failed to adequately explain the contradictions and inconsistencies in the evidence.

It is a fundamentalprinciple of tort law that the defendant need not place the plaintiff in a better position than she was in prior to the accident: Athey v.Leonati, (SCC), [1996] 3 S.C.R. 458 at para. 32. [119] The plaintiff argues that she is entitled to non-pecuniary damages in the range of $85,000 to $100,000, relying on the followingdecisions: Poirier v. Aubrey, 2010 BCCA 266 ($100,000); Hood v. Wrigley, 2013 BCSC 231 ($60,000); Perry v. Perry, 2011 BCSC432 ($85,000); Yeung v. Dowbiggin, 2012 BCSC 206 ($85,000); Kasidoulis v. Russo, 2010 BCSC 978 ($90,000); Pelkinen v.

Unrau,2008 BCSC 375 ($81,000);Thiessen v. Bissenden, 2007 BCSC 1809 ($95,000) and Foran v. Nguyen, 2006 BCSC 605 ($90,000). [120] The defendant relies on the following decisions: Carter v. Zhan, 2012 BCSC 595 ($35,000); Smith v. Wirachowsky, 2009BCSC 1434 ($30,000); Loik v. Hannah, supra ($25,000)

[ 121 ] The defendant also submits the plaintiff failed to mitigate her injuries sustained in the accident. The basis for this submission is her “history of non-compliance with her treatment and therapies” and the ineffectiveness of the treatment she obtained from Mr. Harvie. [ 122 ] The test for mitigation was set out in Chiu v. Chiu , 2002 BCCA 618 at para. 57 : The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.

In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably.... [ 123 ] I do not accept the defendant’s argument.

There is nothing in the evidence to suggest the plaintiff failed to act reasonably in pursuing recommended treatment. [ 124 ] Having considered these decisions and the injuries suffered by the plaintiff which, while perhaps not fully resolved, I find have been exaggerated in terms of their intensity and duration, I find that an award of $35,000 for non-pecuniary damages is appropriate. Cost of Future Care [ 125 ] Future care costs must be justified as being both medically necessary and likely to be incurred by the plaintiff in the future: Izony v. Weidlich , 2006 BCSC 1315 , at para. 74 . [ 126 ] Dr.

Reeves recommends the plaintiff attend a further six to eight one-hour psychotherapy sessions to ensure that she does not lose the psychological self-care strategies she has learned to date. Each of those sessions will cost $150.00. I am satisfied that the plaintiff will likely require two psychotherapy sessions per year for the next three years. A discount rate of 3.5% is applicable to cost of future care.

According to the cost of future care multipliers, present value calculations and tables provided by Robert Carson, the net present value of $300 per year for three years, adjusted for the plaintiff’s probability of survival is $852.00. [ 127 ] Regarding future physiotherapy, Mr. Harvie’s expects two treatments per month for the next year will result in gradual improvement. After one year, he expects improvement will be sporadic and recommends physiotherapy on an “episodic basis”. I am satisfied that the plaintiff will require physiotherapy treatments for the next year but not thereafter.

I find that 24 one-hour sessions at $80 per session for a total of $1,920.00 is reasonable. Special Damages [ 128 ] I find that, in all of the circumstances, the steps taken by the plaintiff to rehabilitate herself and mitigate her loss, all of which were on the recommendation of Dr. Salmaniw, were reasonable. [ 129 ] The plaintiff attended regular physiotherapy sessions because of the accident. She missed some of those sessions due to health issues. The question arises as to whether the defendant must also compensate the plaintiff for the cancellation charges. [ 130 ] In Mackenzie v.

Rogalasky , 2011 BCSC 54 at para. 337 , the defence was not required to reimburse the plaintiff for cancelled appointments. The court found the plaintiff had an obligation to keep track of his appointments and either attend them or cancel them in an appropriate amount of time so as not to incur cancellation fees. Similarly, the court declined to award special costs for cancellation fees in Tompkins v. Bruce , 2012 BCSC 266 at para. 80 . [ 131 ] However, I find there is a reasonable explanation for the cancellation fees in this case. Ms.

Thibeault was suffering from other health problems that were sudden and unpredictable. I find she was unable to cancel her appointments in time to avoid the cancellation charges. The thin skull rule provides that defendants must take their victims as they find them: Blackwater v. Plint , 2005 SCC 58 at para. 78 - 79 . The cancellation fees were unavoidably incurred and the plaintiff is entitled to compensation for those costs. [ 132 ] The plaintiff has satisfied me that she has incurred and is entitled to recovery of special damages in the following amounts:

a) Prescription Drugs $58.56

b) Psychologist (Dr. Reeves) 870.00

c) Physiotherapy (Rod Mitchell) 2,860.00

d) Physiotherapy (Jeff Harvie) 9,335.00 Total $13,123.56 Conclusion [ 133 ] The plaintiff is entitled to judgment in the following amounts: Non-Pecuniary Damages $35,000.00 Special Damages $13,123.56 Cost of Future Care $2,772.00 Total $50,895.56 [ 134 ] I agree with Mr. Walton that the plaintiff is entitled to interest pursuant to the Court Order Interest Act (COIA) on the special damages I have awarded, even though the charges for physiotherapy have not yet been paid. The relevant

section of the COIA provides:

(1) Subject to

section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.

(2) Despite subsection (1), if the order consists in whole or part of special damages, the interest on those damages must be calculated from the end of each 6 month period in which the special damages were incurred to the date of the order on the total of the special damages incurred (

a) in the 6 month period immediately following the date on which the cause of action arose, and (

b) in any subsequent 6 month period. [emphasis added] [ 135 ] Black’s Law Dictionary, 9th ed. defines “incur” as “[to] suffer or bring on oneself (a liability or expense)”. The plaintiff became liable for the cost of her physiotherapy payments when she either attended or missed her appointments. [ 136 ] The plaintiff is entitled to her costs at scale B, subject to any submissions the parties wish to make. Regardless, there will be no costs awarded to the defendant in respect of Dr. Vondette’s report dated December 10, 2012. “Weatherill J.”