Bedwell v. McGill et al, 2003 BCSC 451

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bedwell v. McGill et al, 2003 BCSC 451 Date: 20030326 Docket: M013797 Registry: Vancouver Between: Janice Marie Bedwell Plaintiff And: Thomas W. McGill Defendant And: Maureen P. Currie Third Party Before: The Honourable Mr. Justice Melvin Reasons for Judgment Counsel for the Plaintiff: F. E. Hayman Counsel for the Defendant: H. S. Grewal Counsel for the Third Party: R. J.

Merlo Dates and Place of Trial/Hearing: February 7, 2003 and March 13, 2003 Vancouver, B.C. [ 1 ] Pursuant to Rule 18A, the parties seek a determination of the issue as defined in the amended notice of motion filed by the plaintiff as follows: 1. a declaration that the injuries sustained by the Plaintiff in a motor vehicle accident involving the Plaintiff and the Defendant McGill, which occurred on April 12, 2001 ("the Accident") caused or materially contributed to a fall which the Plaintiff experienced on April 13, 2001 ("the Fall"); 2. a determination of liability with respect to the Fall.

The Plaintiff seeks a declaration that the Plaintiff is entitled to judgment against the Defendants or either of them with respect to all damages flowing from the Fall and a determination that the Plaintiff was not contributorily negligent with respect to the Fall; ... [ 2 ] The discrete issue on this application is limited to the causal connection, if any, of injuries the plaintiff sustained in a motor vehicle accident on April 12, 2001 to the injuries the plaintiff sustained in the fall on the premises of the defendant Currie on April 13, 2001.

This procedure, pursuant to Rule 18A, was not the subject of objection by counsel.

BACKGROUND - MOTOR VEHICLE ACCIDENT [ 3 ] On April 12, 2001, the plaintiff was operating her motor vehicle when it was struck on the rear passenger side by a vehicle driven by the defendant McGill. Impact pushed the plaintiff's vehicle to the left and caused it to spin 180 degrees. Immediately after the motor vehicle accident the plaintiff experienced a very bad headache and her left ear became painful. She described herself in her affidavit as being "very shaky and dizzy and had neck, shoulder, and back pain". The motor vehicle accident occurred the day before Good Friday.

The plaintiff did not attend the hospital after the accident because of a nurses' strike and did not see her doctor the following day as his office was closed on the holiday. The next day, on April 13, 2001, she felt unwell with sporadic dizziness and light- headedness. In her affidavit she described experiencing neck and back pain, pain in her shoulders, headache and pain in her left ear. FALL [ 4 ] In the early evening of April 13, 2001, the plaintiff went to the Currie residence, a friend of some duration. Several mutual friends were there.

Despite an invitation to remain, the plaintiff left because she was not feeling well. She walked across the veranda of the Curries' home, approaching the stairs leading to the driveway. Then, according to paragraph 14 of her affidavit: ... I fell while leaving their home. I was walking across the veranda of the Currie home, approaching the stairs which lead down to their driveway. I must have lost consciousness because I do not recall falling. I only remember walking out the door towards the stairs, and then I found myself at the bottom of the stairs which were at the end of the veranda.

As a result of this fall, I broke my left ankle and sprained by right ankle. [ 5 ] It is obvious from the plaintiff's affidavit and the Currie affidavit that the plaintiff was very familiar with the Currie residence and the stairway in question. She had had no difficulties with this stairway in the past. According to the Currie affidavit, the stairway was in good repair and the area was well lit.

Suffice it to say, on any view of the evidence, the Currie premises were reasonably safe within the meaning of the Occupiers Liability Act . [ 6 ] There were no witnesses to the plaintiff's fall and the plaintiff cannot explain the occurrence. The submission on her behalf is that the periodic dizziness that she experienced after the motor vehicle accident of April 12, 2001 caused or contributed to the fall and consequent injury. POST APRIL 13, 2001 [ 7 ] On April 18, 2001, the plaintiff gave a statement to ICBC concerning the motor vehicle accident of April 12, 2001 and the fall of April 13, 2001.

In that statement, she described her injuries. She did not mention being dizzy but did report feeling shaky after the motor vehicle accident. She reported the fall and the consequent angle in injury, but did not mention dizziness prior to or at the time of the fall. However, she did state that she "never had dizziness or equilibrium problems before". [ 8 ] On April __(date indecipherable), 2001, the plaintiff reported falling on the steps to her family physician. In that report, according to his clinical notes, there is no reference to vertigo or dizziness.

She next attended her physician on April 17, 2001, at which time the doctor's clinical notes record the plaintiff "having vertigo". After the fall, according to the report of April 13 or 14, 2001 (date indecipherable), the plaintiff attended Eagle Ridge Hospital due to the injuries to her ankles. There is no mention of dizziness, headaches, etc. in the medical record filed from the hospital. It should be noted, however, that the plaintiff was at the hospital not as a result of the motor vehicle accident, but as a result of a broken ankle.

In a subsequent report of April 23, 2001 to ICBC, the plaintiff reported vertigo. MEDICAL EVIDENCE [ 9 ] In his report of November 12, 2002, Dr. Sclater described the plaintiff as being in good health prior to the motor vehicle accident. In his opinion, the plaintiff was experiencing vertigo as a result of the accident. The vertigo in his opinion was "caused by a 'whiplash' effect to the vestibular (balance) system of the inner ear". This condition resulted in the plaintiff "being at risk for falling". [ 10 ] Subsequently, the plaintiff was referred to Dr.

Longridge, a specialist in otolaryngology (hearing, tinnitus, and dizziness). As a result of testing, he noted "a disturbance involving the balance system". The test he administered (posturography) is an objective test and in his language, "therefore strongly supportive of a disturbance of the balance system". Both Dr. Sclater and Longridge were cross- examined by defence counsel. Although Dr.

Sclater's records as to the vertigo complaint of the plaintiff were based on the plaintiff's subjective complaints to him as he took a history from her, in my opinion, her subjective complaints are confirmed by the objective findings of Dr. Longridge. [ 11 ] Accepting the plaintiff's evidence of vertigo post motor vehicle accident, and prior to the fall, coupled with the objective testing of Dr. Longridge and the previously good health of the plaintiff, I am satisfied that the vertigo complained of by the plaintiff was caused by the motor vehicle accident.

The lack of an immediate report of vertigo to her physician or ICBC does not detract from her sworn evidence, in my opinion. I am satisfied that due to the motor vehicle accident the plaintiff was susceptible to incidents of vertigo. As Dr. Sclater puts it, the plaintiff was "at risk for falling". VERTIGO AND FALL [ 12 ] The issue as previously stated revolves around the causal link, if any, of the vertigo to the fall. Defence counsel strongly submits, there was no report of dizziness or vertigo by the plaintiff prior to the fall which might lead to the link required.

On previous occasions as noted, the plaintiff was able to identify sporadic incidents of vertigo, was able to negotiate stairs, walk and drive an automobile without apparent difficulty. In my opinion, the above described activity is not inconsistent with sporadic vertigo. The plaintiff

apparently was able to compensate for the occasions when she was subjected to incidents of vertigo. [ 13 ] The difficulty in the case at bar is the lack of evidence surrounding the fall. The plaintiff has no recollection of the circumstances leading to the fall, nor the fall itself, and there were no witnesses. Her evidence is that she only remembers "walking out the door towards the stairs, and then I found myself at the bottom of the stairs". At her examination for discovery, the plaintiff testified to the same effect: 534 A ... I walked across the porch, and I don't know what happened.

The next thing I knew I was at the bottom of the stairs with my legs -- my left leg out this way and my right leg out the other way on exposed aggregate. ... 537 Q I want you to describe to the best of your recollection what actually happened. A I don't know what happened. I walked across the porch and the next thing I knew I was at the bottom of the stairs. ... 568 Q Okay. What else? Anything else? A No. I wanted to go home. I had had that pain in my ear, and I wanted to go home and rest. That's all I remember thinking is I want to go home and rest. 569 Q Were you feeling any dizziness?

A After I fell? 570 Q No, just before. A Before I fell? I don't know. I -- 571 Q Do you know what brought on the fall? A I have no idea. [ 14 ] Consequently, accepting the state of good repair of the stairs, there is an unexplained fall resulting in injury, unless the evidence establishes the required link to vertigo caused by the motor vehicle accident. LAW [ 15 ] The Supreme Court of Canada in Athey v. Leonati , 1996 CanLII 183 (SCC) , [1996] 3 S.C.R. 458 analyzed the principles applicable to causation. From that decision, the following principles are taken:

a) causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury;

b) the general test for causation is the "but for" test; that is, the injury would not have occurred but for the defendant's negligence;

c) where the "but for" test is not applicable, causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury. A contributing factor is material if it falls outside the de minimus range;

d) the causation test is not to be applied too rigidly. Causation need not be determined by scientific precision;

e) it is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury;

f) as long as a defendant is part of the cause of an injury, he is liable even though his act alone was not enough to create the injury. The defendants remain liable for all injuries caused or contributed to by their negligence;

g) apportionment between tortious and non-tortious causes is contrary to the principles of tort law. CONCLUSION [ 16 ] Applying the foregoing, I am satisfied that:

a) the plaintiff suffered sporadic vertigo as a result of the motor vehicle accident;

b) the defendant Currie's premises were safe within the meaning of the Occupiers Liability Act ; they were properly constructed and in a state of good repair, and the area was well lit;

c) the plaintiff was appropriately dressed with proper footwear and was very familiar with the stairway at the Currie residence;

d) the plaintiff was in good health prior to the motor vehicle accident;

e) that rather than the plaintiff's fall being unexplained, there is a rational basis upon which to conclude that her balance disability (objectively established) was the cause of her fall within the meaning of that expression in Athey v. Leonati , supra . The plaintiff's inability to report vertigo immediately before her fall or to describe precautions that she may have taken on recognizing vertigo are explained by her lack of memory of the event after her fall;

f) under all the circumstances, there is no evidence to indicate that the plaintiff was contributorily negligent in walking across the veranda towards the staircase, or that her conduct in any way contributed to the fall. [ 17 ] In conclusion, I am satisfied that the plaintiff's vertigo caused by the motor vehicle accident caused or materially contributed to the subsequent fall and injury.

I am also satisfied that there is no causal link between the plaintiff's fall and injury and the condition of the Currie premises. [ 18 ] Because of the nature of this application, costs will be in the cause unless counsel wish to make submissions to the contrary. If so, would they please contact the trial co-ordinator. “F.A. Melvin, J.” The Honourable Mr. Justice F.A. Melvin