Joseph Peter Gladish v. Patricia Anne Gladish, 2003 BCSC 485

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gladish v. Cymbaluk, 2003 BCSC 485 Date: 20030401 Docket: 30809 Registry: Kamloops Between: Joseph Peter Gladish and Patricia Anne Gladish Plaintiffs And Mike Cymbaluk Defendant Before: The Honourable Mr. Justice Lamperson Reasons for Judgment Counsel for the Plaintiffs J. M. Drayton Counsel for the Defendant D. Blois Date and Place of Trial/Hearing: March 4, 2003 Kamloops, B.C. Introduction [ 1 ] This is an application under Rule 18A whereby the plaintiffs seek an assessment of their damages resulting from a rear end collision for which the defendant has admitted liability. [ 2 ] Two questions are before this court. (

a) Is this matter suitable for disposition under Rule 18A? If so, (

b) What amount of damages are each of the plaintiffs entitled to? Suitability for Rule 18A Determination [ 3 ] The defendant who has elected trial by judge and jury not only wants to exercise that right, but also, opposes the plaintiffs’ application on the basis that their credibility is in issue due to some contradictions in their discovery and affidavit evidence and because there are no objective medical findings. [ 4 ] Counsel have referred me to the specific inconsistencies in the plaintiffs’ evidence and have reviewed Dr.

Ritenburg’s medical legal reports which are, in large measure, based on what he was told by the plaintiffs. Neither factor is unusual. [ 5 ] Upon considering these matters, I have concluded that the contradictions are minor and not unusual. The circumstances of this case are not complicated and the damages that will flow are moderate. This court is in a position to find the necessary facts to render a judgment. Consequently, this is a proper case for a disposition under Rule 18A. In deciding this matter, I will keep in mind the following words of MacDonald, J. in Elyk v.

John Doe , [1996] B.C.J. 535 (S.C.) , as repeated in Farshchian v. Spencer , 2002 BCSC 83 at para. 7 : I accept the argument of the defendant I.C.B.C., based as it is upon the plaintiff’s choice of Rule 18A to avoid trial costs, that she must bear the risk of any uncertainty arising from that means of resolving this case. Any doubt on the issue of damages should be resolved in favour of the defendant. Damages for Injuries Suffered by Mr. Gladish [ 6 ] Mr. Gladish, who is now 65 years old, was 61 at the time of the accident.

He is employed by the City of Kamloops as a janitor, but was a weigh scale operator at the city’s garbage dump at the time of the accident. [ 7 ] His counsel describes the impact of the accident on Mr. Gladish’s life to be as follows: a. Mr. Gladish felt no initial pain from the impact, but rather, the pain came on gradually;

b. He was able to work the day of the accident, and the next day; c. His first attendance for medical treatment was two days after the accident at a medical clinic, and then two days after that at his family physician; d. He describes his improvement in paragraph 29 of his affidavit, and that includes being 75 – 80% better after three and a half months, i.e. on June 8, 1999; e. He has not noticed any real improvement since June 1999, and fact [sic] believes that things are worse now than they were in June; f.

His pain takes the form of morning stiffness and soreness in his neck, and in the absence of physical activity, there will be no further stiffness or soreness for the day; g. Physical activity does increase the stiffness or soreness, and requires treatment with Extra-Strength Tylenol and the application of heat; h. There were some work related activities that were physically demanding and those aggravated his neck pain – he did not associate the neck pain and the physical activity until later; i.

In April 2001, his job changed from a part time position to a full time janitorial position, which seems to have increased his neck pain each day; j. He hopes to retire when he turns 66 in September 2003, and anticipates considerable improvement following that retirement; k. Prior to the accident, he had never been treated for neck problems. The above assertions are, by and large, borne by the evidence. [ 8 ] Dr. Ritenburg, in his report of December 4, 2002, said the following about Mr. Gladish: To my knowledge, Mr.

Gladish did not complain of any significant neck problems prior to the motor vehicle accident of February 20, 1999. I have not done an exhaustive chart review but I certainly don’t recall any neck problems. X-rays taken after the motor vehicle accident do show chronic degenerative changes in his spine and osteoarthritic changes. These clearly pre-existed the motor vehicle accident but seem to have caused little in the way of symptoms. As such, I can only assume that had Mr. Gladish not been involved in this accident, he certainly would not have had the degree of neck symptoms that he has now.

I am sure that his pre-accident degenerative changes and arthritis certainly predisposed him to significant injury in this kind of accident. [ 9 ] The defence contends that it can be implied from Dr. Ritenburg’s remarks that Mr. Gladish’s neck condition would, in time, have become symptomatic even if there had been no accident and that much of Mr. Gladish’s current problems are attributable to his current job which is physically more demanding than his previous work. The defence also criticizes the fact that Mr. Gladish stopped taking physiotherapy because he felt that it was not helping very much.

It should be noted that Mr. Gladish’s recreational activities have not been affected by the accident. [ 10 ] In short, the defence position is that: 1. He is exaggerating his complaints; 2. He has failed to mitigate his damages by discontinuing physiotherapy treatments; 3. That some of his complaints result from the work that he is now doing; 4. The doctor’s report is not based on objective or verified evidence, but merely reiterates Mr.

Gladish’s complaints; and therefore, the damages to be assessed must be very small. [ 11 ] Counsel have referred me to numerous cases which, in their view, establish the appropriate range of damages for the increased pain that is attributable to the accident. [ 12 ] According to defence counsel, Mr. Gladish is entitled to non-pecuniary damages in the sum of $5,000, whereas the plaintiffs’ counsel argues that the damage award should be in the range of $15,000 to $16,000. It is always difficult to compare the circumstances of one case with those of another, but it is clear that Mr.

Gladish’s neck problems became symptomatic as a result of the accident, and that physically demanding activities did not cause neck pain prior to the accident. I do not agree with defence counsel’s contention that Mr. Gladish exaggerates his symptoms. After considering the impact of the accident on Mr. Gladish’s life, including the fact that the problem is ongoing, I award him non-pecuniary damages in the sum of $14,000. He has no other claim apart from some very minor special damages that I will refer to when dealing with Mrs. Gladish’s claim. Damages for Injuries Suffered by Mrs. Gladish [ 13 ] Mrs.

Gladish had symptomatic spinal problems prior to the accident. She was treated for neck problems in the mid-1990s when she was diagnosed with a congenital fusion of two vertebrae in her neck, degenerative disc disease in her lumbar spine and osteoporosis. [ 14 ] Following the accident, she was diagnosed with cervical strain and prescribed rest, heat and painkillers. Within six weeks, her condition improved to approximately 70% of where she had been prior to the accident, but then regressed to roughly 50%.

She complains, even now, of numbness to the back of her head, as well as pain which is exacerbated with physical activity. In his report of

December 4, 2002, Dr. Ritenburg states: [Patricia Gladish] has a congenital abnormality of her cervical spine, as well as degenerative changes in her lumbar spine together with diffuse osteoporosis. I believe that the amount of pain that she has suffered since the motor vehicle accident is significantly worse than it would have been had she not been involved in that motor vehicle accident of February 20, 1999.

I am unable to say the exact amount of additional pain and suffering that she experienced because of the motor vehicle accident, but I certainly believe it to be significant. [ 15 ] Defence counsel’s submissions with respect to Dr. Ritenburg’s report as it pertains to Mrs. Gladish, is the same as it was with respect to Mr. Gladish, namely, that the doctor is simply reiterating what she has told him, and that there is no objective evidence that shows what additional pain and suffering the accident has caused her. [ 16 ] Mrs.

Gladish’s situation is different from her husband’s in that she had a symptomatic pre-existing condition whereas his were asymptomatic. Consequently, her damages should reflect only the increased level of suffering resulting from the accident, rather than the total amount of her suffering. [ 17 ] The defence criticizes Mrs. Gladish for discontinuing prescribed physiotherapy treatments and points out that her condition worsened when she unilaterally ceased those treatments. In this regard, Dr. Ritenburg stated in his letter: I have found Mrs.

Gladish to be credible and responsible in managing her chronic pain symptoms. She was offered physiotherapy but declined because she felt that in the past it had made her symptoms worse. Stretching and exercises are part of an overall physiotherapy treatment program and I think it entirely appropriate for her to decline that mode of treatment if she felt it might make her symptoms worse. [ 18 ] Another factor is that Mrs. Gladish fell and broke her left tibia in August 2001. This injury necessitated her using crutches and wearing a knee brace for five months.

The use of these items aggravated her neck pain. [ 19 ] Defence counsel contends that the numbness at the back of Mrs. Gladish’s head indicates a neurological condition, and that there is a contradiction in the evidence when Dr. Ritenburg says that Mrs. Gladish’s neurological condition is normal. That may or may not be so, but the evidence is clear that the numbness results from the accident and is a problem for Mrs. Gladish.

The evidence as a whole satisfies me that the accident has increased her pain significantly over what it would have been if the accident had not occurred. [ 20 ] Once again, counsel have referred me to numerous cases with various fact patterns in an effort to establish a range of damages. It is suffice to say that the defence is of the view that the range of Mrs. Gladish’s damages are somewhere between $4,500 to $13,500, whereas the plaintiff contends that the range for non-pecuniary damages should be between $17,000 to $18,000.

After considering the various cases referred to and the facts of this case, I have concluded that an appropriate award of non-pecuniary damages for Mrs. Gladish is $17,000. [ 21 ] The plaintiffs’ claim for special damages is for the extra money expended by them for Tylenol. It is a very minor part of the action. No receipts were kept, nor is there any evidence as to the additional amount they spent. Any award made by me in that regard would be based on speculation rather than evidence.

Accordingly, I find that portion of the claim not to have been proved. [ 22 ] The plaintiffs are to have the costs of this action. “G.W. Lamperson, J.” The Honourable Mr. Justice G.W. Lamperson