SUPREME COURT OF Nova Scotia
Citation: Hopkins v. Graham, 2014 NSSC 243
Date: 20140708
Docket: Hfx No. 362439
Registry: Halifax
Between:
Barry Allison Hopkins
Plaintiff
v.
Derek Graham and James Robert Graham
Defendants
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Judge: |
The Honourable Justice Glen G. McDougall |
|
Heard: |
April 7 to 10, 2014, in Halifax, Nova Scotia |
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Counsel: |
Jennifer Snow and Justin Robichaud, for the Plaintiff Shelley Wood and Nathan Sutherland, for the Defendants |
By the Court:
Introduction
[1] This action arises out of a head-on collision that occurred on January 30, 2009. At approximately 11:30 pm, Barry Hopkins was driving home from hockey practice along East Jeddore Road when the Defendants’ Subaru Outback crossed the yellow line and collided with the front driver’s side corner of Mr. Hopkins’s Ford Fusion. The impact forced his vehicle into the ditch. Mr. Hopkins’s vehicle was a write-off.
[2] Mr. Hopkins’s position is that he suffered serious injuries in the accident that have left him with permanent physical limitations. He says he regularly experiences pain in his upper and mid-back, shoulders, and both knees. He is claiming general damages for pain and suffering, past and future loss of income, loss of valuable services, and future costs of care.
[3] The Defendant James Graham was the driver of the Subaru Outback at the time of the accident. His father, the Defendant Derek Graham, is the registered owner of the vehicle. The Defendants initially denied liability but abandoned this position on the eve of trial. Although they admit to a breach of the standard of care, they do not admit the accident is the cause of Mr. Hopkins’s current physical condition.
[4] The parties are also at odds regarding the applicability of the minor injury provisions of the Nova Scotia Insurance Act, RSNS 1989, c. 231 and related Automobile Accident Minor Injury Regulations to Mr. Hopkins’s claim for general damages.
Mr. Hopkins’s Background
[5] Mr. Hopkins was 43 years old at the time of the accident and is now 50 years of age. He lives in East Jeddore with his common law spouse, Noreen McGuire, and her 18 year old son. He has no children of his own.
[6] Mr. Hopkins attended Eastern Shore District High School in Musquodoboit Harbour until he reached Grade 11. He began working at the fish plant in Baker’s Point at 13 years of age. He worked at the plant for seven years until 1984 when he was hired as a concrete finisher with Jupiter Foundations.
[7] In approximately 2007, Mr. Hopkins was promoted to his current position of Crew Foreman. The position of Crew Foreman is significantly less labour-intensive than his former role but still involves some physical labour. Mr. Hopkins’s duties include supervising the crew, filling out paperwork, and dealing with architects, owners, inspectors, engineers, and concrete companies.
[8] Mr. Hopkins’s employment with Jupiter Foundations is seasonal, running from approximately March until December, although he occasionally works during the January to March period when the weather permits. He draws employment insurance benefits during the winter months when he is not working.
[9] Prior to the accident, Mr. Hopkins also earned a small amount of income lobster fishing. The lobster season runs from April 20th to June 20th, and during this time Mr. Hopkins went fishing after his regular work-hours and on weekends. He last fished for lobster in 2010.
Past Medical History
[10] Mr. Hopkins’s medical history includes three pre-existing conditions of note: pericarditis, chronic lower back pain, and a right ankle injury.
[11] Mr. Hopkins experienced episodes of chest pain diagnosed as pericarditis in June and August of 2003, February of 2004, February of 2007 and March of 2008. His pericarditis symptoms have not recurred since 2008.
[12] According to the medical documentation, Mr. Hopkins first complained of low back pain in 1984. He raised this issue again with his physician in February of 2002. On July 2, 2006, Mr. Hopkins was seen at the Dartmouth General Hospital for severe lower back pain that had persisted over the previous five days. The Emergency Department Record states:
Back pain x 5/7. Has deteriorating discs, no recent injury. Has been getting increasing pain. Has not taken anything for pain except for the herbal anti-inflammatory. Has been in bed x 2/7. Works at building foundations.
[13] Mr. Hopkins was given Demerol and Gravol in hospital and discharged with a prescription for Percocet.
[14] Finally, Mr. Hopkins suffered an ankle sprain at some point prior to the accident that continues to cause him some discomfort.
The Accident and Subsequent Medical Treatment
[15] Mr. Hopkins was wearing his seatbelt at the time of the accident. When the Defendants’ vehicle collided with his car, Mr. Hopkins’s body was thrown forward. His chest hit the steering wheel and his knees struck the dashboard. His left knee punched a hole in the dash, while his right knee collided with and broke the underside of the console. The airbags did not activate.
[16] When his vehicle was forced into the ditch, Mr. Hopkins’s body bounced from the driver’s side to the passenger side and back causing his right arm to strike the inside of the passenger side door and his left shoulder to hit the inside of the driver’s side door. He recalls striking his head against something inside the vehicle but does not know what it was.
[17] The impact of the collision knocked the wind out of Mr. Hopkins and he struggled to breathe in the minutes after the crash. Once he regained his breath, he exited his vehicle from the passenger side. Mr. Hopkins was taken to Twin Oaks Memorial Hospital in Musquodoboit Harbour where he was assessed by the attending physician, Dr. Stephanie Bass.
[18] The Emergency Department Record indicates Mr. Hopkins complained of soreness in his neck muscles, left ribs, and chest wall and he had abrasions on his left shoulder, both knees, and left ribs. He was diagnosed with abrasions and contusions secondary to the motor vehicle accident and discharged with a prescription for Tylenol 3, Naproxen, and Flexeril.
[19] Mr. Hopkins saw his family doctor, Dr. Robert Merritt, on February 5, 2009, at which time he reported pain on his left side, back, and rib area. Dr. Merritt recommended physiotherapy.
[20] Mr. Hopkins began attending PhysioLink Physiotherapy for treatment on February 10, 2009. He attended approximately 20 sessions before discontinuing treatment on April 9 due to the start of the lobster fishing season. He returned to physiotherapy on July 28, 2009, at which time he complained of neck and mid-back pain, bilateral knee pain, and headaches. Mr. Hopkins stopped attending physiotherapy on or about October 1, 2009.
[21] Following the February 5, 2009 appointment with Dr. Merritt, Mr. Hopkins did not see his family physician again until October 1, 2009. At that time, his primary complaint was extreme fatigue. On July 23, 2010, Dr. Merritt referred Mr. Hopkins to Dr. Stephen Duke, an Internist, and informed Dr. Duke of the following:
I am referring this gentleman because of ongoing fatigue. He’s been presented to my office several times over the past year and both he and I are frustrated in the lack of a diagnosis. He denies any mood symptoms, he insists his sleeping is good, he admits he works very hard and [sic] construction and seasonally as a lobster fisherman, but finds he is truly lacking energy. I have obtained bloodwork last fall without any insight.
[22] In October of 2010, Mr. Hopkins was still fatigued and Dr. Merritt prescribed Zopiclone, a sleeping pill.
[23] Dr. Duke assessed Mr. Hopkins on March 2, 2011. In a letter of the same date to Dr. Merritt, he noted:
He does not fall asleep inappropriately at work and is quite physically active there. He does get a little “achy and sore” in the muscles at times, though does not believe this keeps him awake at night.
[24] Dr. Duke recommended that Mr. Hopkins make some sleep hygiene adjustments. On July 19, 2011, he informed Dr. Merritt that Mr. Hopkins’s fatigue persisted, despite these changes.
[25] On June 27, 2011, Dr. Merritt prescribed Celebrex for low back pain. Two months later, on August 25, 2011, Mr. Hopkins began attending Helson Chiropractic Health Centre for chiropractic treatment. His brother, also a patient of Dr. Helson, had recommended chiropractic treatment to Mr. Hopkins for his back problems several times in the past, both before and after the accident.
[26] Mr. Hopkins continued to experience fatigue throughout 2012 and the first half of 2013, and Dr. Merritt prescribed increasingly powerful sleeping pills. In September of 2013, Mr. Hopkins was seen by Dr. John Curtis, a psychiatrist, regarding the possibility that he may have Attention Deficit Disorder and that this was affecting his sleep. Dr. Curtis prescribed Ritalin which significantly reduced Mr. Hopkins’s fatigue. On October 10, 2013, he reported to Dr. Merritt that he had “much more energy.” On November 19, 2013, Dr. Curtis wrote the following to Dr. Merritt:
I note that Barry still requires Apo-Oxepam 30 mg for sleep, and would hope that sometime in the future as his Ritalin takes affect [sic] that his sleep would also settle down. It seems that he probably was tried on Zopiclone but I think that gave him a metallic taste.
I hope you will feel comfortable carrying on with the prescribing of his
Ritalin as it certainly appears to be making quite a change in his life.
[27] On January 25, 2014, Dr. Merritt recorded that Mr. Hopkins was “generally doing quite well and has had his dosage of Ritalin adjusted.”
Mr. Hopkins’s Current Condition
[28] Mr. Hopkins’s primary complaints today, which he attributes to the accident, are mid to upper-back pain (between the shoulder blades), shoulder pain and bilateral knee pain.
[29] Mr. Hopkins testified that he experiences a constant burning sensation across the middle of his back that does not respond to medication. This burning sensation sometimes shoots up the back of his neck.
[30] Mr. Hopkins’s other pains are more sporadic generally triggered by an increase in physical activity. He has pain deep in his right shoulder that comes and goes becoming aggravated when he carries form panels at work, chops wood, or gardens. When his shoulder begins to throb, he slows down or stops for a while before completing the task at hand.
[31] Mr. Hopkins testified that his knees have become more and more bothersome over time. In the course of his work with Jupiter Foundations, Mr. Hopkins must regularly walk down a ramp into a hole where the foundation will be poured and climb back out again. This climbing in and out of the hole is particularly aggravating to his knees. Mr. Hopkins explained that walking downhill carrying panels or other supplies puts pressure on his knees and he occasionally has to drop what he is carrying because he fears his knees will give out on him. The pain eventually subsides with rest.
[32] According to Mr. Hopkins, his injuries have significantly impacted his life. Although he estimates he missed only one week of work at Jupiter Foundations after the accident, he refrains from exerting himself to the same degree as he used to in the course of his duties in order to avoid aggravating his injuries. Mr. Hopkins also attributes his discontinuation of lobster fishing after the 2010 season to accident related issues.
[33] Mr. Hopkins says his ability to perform certain home maintenance tasks has also been compromised. In January of 2009, prior to the accident, Ms. McGuire and her son moved into Mr. Hopkins’s home. At that time, Ms. McGuire assumed the vast majority of the interior household cleaning tasks while Mr. Hopkins continued to perform all exterior home maintenance jobs. While he still performs these outside chores, he finds them more challenging and time-consuming than before the accident. The most significant example is chopping, transporting, and stacking his own firewood. Prior to the accident, it took Mr. Hopkins approximately one week to cut his firewood for the winter. It now takes closer to two months.
[34] Finally, Mr. Hopkins testified that it is more difficult for him to engage in recreational activities he previously enjoyed, like playing sports, gardening, or using his four-wheeler. He no longer plays baseball but he continues to golf in the summer and he plays hockey once a week during the winter. When he does these activities, however, it takes him a full day to recover.
[35] Notwithstanding his physical issues, Mr. Hopkins has continued to travel every year. He traveled to Cuba three weeks after the accident where he went on a jeep safari and a riverboat trip. He has also traveled to Mexico several times and has been on a cruise.
General Damages
[36] Mr. Hopkins says his injuries are serious and he is seeking general damages in the range of $50,000 to $57,500. The Defendants say Mr. Hopkins’ injuries meet the definition of a “minor injury” under s. 113B of the Insurance Act, and the total amount recoverable in general damages is limited to $2500, the “cap” in effect at the time of the accident.
[37] The Insurance Act provides the following in relation to motor vehicle accidents that occur prior to April 28th, 2010:
Limitation on liability
113B(1) In this Section,
(a) "minor injury" means a personal injury that
(i) does not result in a permanent serious disfigurement,
(ii) does not result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature, and
(iii) resolves within twelve months following the accident;
(b) "serious impairment" means an impairment that causes substantial interference with a person's ability to perform their usual daily activities or their regular employment.
…
(4) Notwithstanding any enactment or any rule of law, but subject to subsection (6), the owner, operator or occupants of an automobile, any person present at the incident and any person who is or may be vicariously liable with respect to any of them, are only liable in an action in the Province for damages for any award for pain and suffering or any other non-monetary loss from bodily injury or death arising directly or indirectly from the use or operation of the automobile for a minor injury to the amount prescribed in the regulations.
[38] Section 5 of the Regulations provides:
Total amount recoverable for non-monetary losses
5 For the purpose of subsection 113B(4) of the Act, the total amount recoverable as damages for non-monetary losses of a plaintiff for all minor injuries suffered by the plaintiff as a result of an incident must not exceed $2,500.
[39] The burden is on Mr. Hopkins to prove, based on evidence of one or more medical practitioners trained and experienced in the assessment and treatment of the personal injury, that the injury suffered is not a minor injury (s. 6 of the Regulations).
[40] Four questions must be answered in order to determine whether a plaintiff has suffered a minor injury as defined by the legislation:
1. Did the Plaintiff suffer a “personal injury”?
2. If so, did the personal injury result in a permanent serious disfigurement?
3. Did the personal injury result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature?
4. Did the personal injury resolve within twelve months following the accident?
See Farrell v. Casavant, 2009 NSSC 233 at para. 167.
[41] I will consider each question in turn.
Did Mr. Hopkins suffer a “personal injury”?
[42] Section 4 of the Automobile Accident Minor Injury Regulations excludes certain conditions from the definition of “personal injury”, including: a coma, chronic pain that is moderately severe or severe, a burn resulting in serious disfigurement, and an amputation of a major limb. There is no suggestion that Mr. Hopkins suffers from any of these excluded conditions.
[43] I am satisfied on the evidence that Mr. Hopkins suffered personal injury as a result of the head-on collision. He testified that he experienced pain in his neck and back muscles, shoulders, ribs and knees, and suffered several abrasions in the accident. This evidence is corroborated by the medical documentation.
If so, did the personal injury result in permanent serious disfigurement?
[44] In order to constitute a “disfigurement”, an injury must have the effect of marring or detracting from the appearance of an individual as a person: Farrell v. Casavant, supra, at para. 174. There is no evidence that Mr. Hopkins suffered any disfiguring injury in the accident.
Did the personal injury result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature?
[45] In Farrell v. Casavant, supra, Associate Chief Justice Smith commented:
191 The Ontario Court of Appeal in Meyer v. Bright et al., supra, also considered the meaning of the term "permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature." The court in that case stated at p. 360:
... Because the word 'serious' qualifies 'impairment' and the word 'important' qualifies 'bodily function', it is only necessary to consider those words when a particular injured person has sustained a permanent impairment of a bodily function caused by continuing injury which is physical in nature. It is only if the injured person has such an impairment that it is necessary to decide whether the bodily function which is impaired is an important one. And it is only if the impairment is of an important bodily function that it is necessary to determine whether the impairment is a serious one.
We conclude therefore that the appropriate approach in these cases is to answer sequentially the following questions:
1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
2. If the answer to question No. 1 is yes, is the bodily function, which is permanently impaired, an important one?
3. If the answer to question No. 2 is yes, is the impairment of the important bodily function serious?
192 Despite the differences in the Ontario and Nova Scotia legislation, I am satisfied that this is an appropriate approach for me to take in the case at Bar.
[46] Associate Chief Justice Smith continued:
195 The drafters of the legislation before me did not refer to impairment in function, but rather, referred to impairment in bodily function. In my view, an impairment in bodily function involves an impairment in the function of the body itself. As a result of that impairment certain activities (such as walking, swimming and the like) may be limited, but the impairment is to a part of the body itself.
[47] Having taken the position that his injuries fall outside the minor injury cap, Mr. Hopkins bears the burden under the Regulations to present expert opinion evidence, of one or more qualified medical practitioners, that he suffers from a permanent impairment in bodily function and that this impairment is “caused by a continuous injury.” In other words, he must prove that any functional impairment is causally connected to the motor vehicle accident and is not instead the result of three decades of physically demanding employment, long-term involvement in contact sports, his pre-existing degenerative low back condition, the aging process, or any other cause. He has not done so.
[48] Mr. Hopkins elected not to call any medical experts to provide opinion evidence. He called only his family physician, Dr. Merritt, to speak to the facts and observations contained in his medical chart. The absence of expert opinion evidence on diagnosis and causation effectively precludes a finding by this court that Mr. Hopkins’s injuries fall outside the cap.
[49] However, even if Mr. Hopkins had established that his current impairments were caused by the motor vehicle accident, I would nonetheless conclude that these impairments are not serious. A “serious impairment” is defined at s. 113B(1)(b) of the Act as follows:
"serious impairment" means an impairment that causes substantial interference with a person's ability to perform their usual daily activities or their regular employment.
[50] The terms “substantial interference” and “usual daily activities” are defined at s. 4 of the Regulations as follows:
“substantial interference” means, with respect to a person’s ability to perform their regular employment, that the person is unable to perform, after reasonable accommodation by the person or the person’s employer for the personal injury and reasonable efforts by the injured person to adjust to the accommodation, the essential elements of the activities required by the person’s pre-accident employment;
“usual daily activities” means the essential elements of the activities that are necessary for the person’s provision of their own care and are important to people who are similarly situated considering, among other things, the injured person’s age.
[51] The Regulations also define “regular employment”:
“regular employment” means the essential elements of the activities required by the person’s pre-accident employment;
[52] The evidence does not establish a substantial interference with Mr. Hopkins’s ability to perform his usual daily activities, as that phrase is defined in the legislation, and Mr. Hopkins does not suggest otherwise. The evidence with respect to his ability to carry out his usual daily activities will be discussed in greater detail when I address the claim for loss of valuable services.
[53] Nor is there evidence that the accident substantially interfered with Mr. Hopkins’s ability to perform the activities required by his regular pre-accident employment. At the time of the accident, Mr. Hopkins was receiving employment insurance benefits. In March of 2009, he returned to his full-time position with Jupiter Foundations. His physiotherapy records confirm that Mr. Hopkins worked on March 19, 2009, stripping a foundation. Mr. Hopkins continues to work in his role as Crew Foreman at the time of trial and has required no accommodation of any kind from his employer.
[54] It was argued at trial that the minor injury cap does not apply because the accident substantially interfered with Mr. Hopkins ability to go lobster fishing, his second form of regular employment. I would reject this position for three reasons. First, I have been provided with no authority that the terms “regular employment” and “pre-accident employment”, as used in the legislation, were intended to encompass part-time, seasonal work performed over and above a plaintiff’s regular full-time employment in the career of his or her choice.
[55] Second, Mr. Hopkins testified that he did not consider lobster fishing to be a “job.” He stated on direct examination that fishing, “was more of an enjoyment to me than a work thing.” I find that lobster fishing was a recreational activity that Mr. Hopkins has enjoyed since childhood and maximizing profit was never his primary objective.
[56] Finally, I am not satisfied that Mr. Hopkins’s decision to stop lobster fishing following the 2010 season was motivated by the pain he attributes to the accident. Mr. Hopkins fished for two seasons after the accident. His income from fishing was historically quite low, ranging from $1200 to $1700, and in 2010, he suffered a loss of $636. Mr. Hopkins conceded on cross-examination that the market price for lobster has been steadily declining since 2008 and the cost of fuel and other expenses has been steadily increasing.
[57] In my view, Mr. Hopkins’s decision to stop fishing was more likely attributable to the declining market price for lobster, his pre-existing degenerative back condition, and the extreme fatigue he began experiencing in the fall of 2009.
Did the personal injury resolve within twelve months following the accident?
[58] The Regulations define “resolves” as follows:
(f) “resolves” means
(i) does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment, or
(ii) causes a serious impairment which results from a continuing injury of a physical nature to produce substantial interference with a person’s ability to perform their usual daily activities or their regular employment where the person has not sought and complied with all reasonable treatment recommendations of a medical practitioner trained and experienced in the assessment and treatment of the personal injury;
[59] Having concluded that Mr. Hopkins has not established a serious impairment of an important bodily function which results from a continuing injury, I find that his injuries resolved within twelve months after the accident.
[60] For the foregoing reasons, I find that Mr. Hopkins suffered minor injuries as a result of the 2009 motor vehicle accident. Any general damage award is limited to $2500 and I assess his damages in this amount.
Past and Future Loss of Earnings
[61] Mr. Hopkins claims past loss of income from lobster fishing for the years 2009 to 2013 in the amount of $6,706. He claims the future loss of his net average fishing income in the years prior to the accident ($1,586) to the retirement age of 67, or $26,018.
[62] As explained above, I do not accept that but for the 2009 accident, Mr. Hopkins would have chosen to continue fishing after the 2010 season. With respect to past loss of income, Mr. Hopkins has offered no evidence that his fishing income earned in 2009 and 2010 was adversely impacted by accident related injuries. Consequently, I decline to award past or future loss of earnings.
[63] It is also worth noting that for the last decade, Mr. Hopkins has fished under the license of Bernard Smith, his sister-in-law’s father. The lobster license is a non-transferable Class B license that will expire when Mr. Smith, now in his 80s, passes on. Mr. Hopkins has not suggested that he will have access to another fishing license after Mr. Smith’s death. For this reason, even if he had established that his alleged inability to fish was caused by the accident, any claim for future loss of lobster fishing income would be tenuous at best.
Loss of Valuable Services/Housekeeping Capacity
[64] Mr. Hopkins is claiming loss of valuable services in the amount of $40,000. In Hollett v. Yeager, 2014 NSSC 207, Coady, J. summarized the proper approach to this type of claim:
[82] … Justice Saunders discussed lost valuable services at para. 50 of Leddicote v. Nova Scotia (Attorney General), 2002 NSCA 47:
The question becomes to what extent, if at all, have the injuries impaired the claimant’s ability to fulfill homemaking duties in the future? Thus, in order to sustain a claim for lost housekeeping services one must offer evidence capable of persuading the trier of fact that the claimant has suffered a direct economic loss, in that his or her ability or capacity to perform pre-accident duties and functions around the home has been impaired. Only upon proper proof that this capital asset, that is the person’s physical capacity to perform such functions, has been diminished will damages be awarded to compensate for such impairment. . . .
It should be noted that this head of damages is not intended to compensate a Plaintiff for duties or chores they did not perform prior to their injury.
[65] In support of his claim, Mr. Hopkins relies on two expert reports prepared by Lloyd Richard, an occupational therapist. Mr. Richard was retained by Mr. Hopkins’ counsel to perform a functional capacity evaluation and a valuable services assessment of Mr. Hopkins.
[66] A functional capacity evaluation compares a person’s functional abilities and limitations, as revealed through a series of tests, to the functional abilities required to perform certain occupations. With respect to Mr. Hopkins’s position with Jupiter Foundations, Mr. Richard concluded at p. 46 of his report:
On comparing the critical physical demands detailed above to Mr. Hopkins’ current functional abilities it is apparent that he largely matches the large majority of the physical demands required. Discrepancies only occur when the frequency of Mr. Hopkins’ work demands increases subsequent to his increased participation in work tasks during larger projects (or when short staffed).
[67] Mr. Richard used the information gleaned during the functional capacity evaluation, along with an interview with Mr. Hopkins and an examination of his home, to prepare a valuable services assessment. A valuable services assessment compares an individual’s abilities and limitations to the physical demands associated with common household tasks. Mr. Richard observed at p. 30 of his report:
At this time, it is apparent that there is essentially no one task that Mr. Hopkins cannot complete independently via the implementation of pacing techniques. However, given the fact that Mr. Hopkins’ work hours often result in his working 10 to 12 hours per day, his ability to effectively implement pacing techniques for such a wide variety of tasks when attempting to manage his household chores is not always practical or realistic. Further to this point, as described on page 46 of the Functional Capacity Evaluation report dated August 14th, 2013, Mr. Hopkins periodically has to perform work duties in his role as Foreman with Jupiter Foundations that are beyond his safe abilities. … Subsequent to this discrepancy, he commonly experiences a symptomatic increase. These symptomatic increases require periods of rest and recovery that subsequently impact his ability to engage in household duties. …
[68] Mr. Richard concluded that even with Ms. McGuire’s assistance, the volume of household chores that require pacing by Mr. Hopkins supports a housekeeping replacement service of one hour per week until the end of his work life expectancy. In the event that Mr. Hopkins was no longer receiving assistance from Ms. McGuire, Mr. Richard recommended housekeeping replacement service of two hours per week until the end of his work life expectancy. He also recommended additional replacement services for interior painting in either scenario.
[69] Mr. Richard’s valuable services assessment report is of limited assistance to the court in assessing whether Mr. Hopkins has suffered a loss of valuable services. In coming to his conclusions, Mr. Richard assumed that Mr. Hopkins’s current functional limitations are wholly attributable to the motor vehicle accident. This assumption has not been substantiated by the evidence.
[70] Indeed, Mr. Richard conceded on cross-examination that an individual suffering from significant degenerative changes in the lower spine may exhibit similar limitations to those demonstrated by Mr. Hopkins.
[71] The other weakness of the report is its consideration of Mr. Hopkins’ ability to perform household tasks that he did not perform before the accident. This information is irrelevant to the determination of whether he has suffered a compensable loss of valuable services.
[72] Prior to the accident, Mr. Hopkins did not perform the majority of the interior household cleaning tasks. These responsibilities were assumed by his common law partner when she and her son moved in with him. There is no evidence to suggest that Ms. McGuire will not continue in this role for the foreseeable future. Accordingly, I find that Mr. Hopkins is not entitled to housekeeping replacement services.
[73] With respect to outdoor home maintenance tasks, Mr. Hopkins continues to perform all of the chores he performed before the accident. Although he must remain mindful of his activity level and pace himself, he continues to split and stack his own firewood, mow the lawn, clear the snow, and decorate his house. His stepson assists with some of these chores, as a healthy young man should, but there is no evidence that Mr. Hopkins would be unable to complete these tasks without assistance.
[74] Regarding replacement services for interior painting, there is no indication that Mr. Hopkins has performed this activity himself in the past or would have chosen to do so in the future.
[75] I find that Mr. Hopkins has not established that the accident resulted in a loss of valuable services and I make no award under this head of damages.
Future Costs of Care
[76] At the time of trial, Mr. Hopkins continues to take Celebrex for back pain and attends chiropractic treatment approximately every three weeks. He claims the cost of the Celebrex medication for the remainder of his life and the cost of chiropractic treatment until age 67. He further claims the cost of a community gym membership at $500 per year until age 67, and the amount of $50 per year for non-prescription forms of treatment, including topical non-steroidal anti-inflammatory gel.
[77] Dr. Merritt prescribed Celebrex to Mr. Hopkins on June 27, 2011. When asked about this prescription on cross-examination, Dr. Merritt commented:
Lots of people have low back pain. Especially labourers. Concrete work, that’s a known heavy labourer job. So I would have prescribed him Celebrex as an anti-inflammatory in general.
[78] There is no evidence that, but for the accident, Mr. Hopkins would not be taking Celebrex to treat his pre-existing degenerative back condition. The same is true with respect to Mr. Hopkins’ use of non-prescription topical anti-inflammatory gels and other forms of treatment. In the absence of such evidence, I cannot conclude that the Defendants should be responsible for these costs.
[79] The claim for chiropractic costs is equally problematic. Chiropractic treatment was not recommended to Mr. Hopkins by any of his treating physicians, and, in light of his pre-existing condition, I am not satisfied that these expenses can be attributed solely to the accident.
[80] Mr. Hopkins says he would like to try going to a community gym to do stretching and strength training. There is no evidence that this was recommended as an appropriate treatment for his pain and he has taken no steps in the five years since the accident to obtain a gym membership. I decline to make any award for this expense.
Conclusion
[81] Mr. Hopkins impressed me as a credible and sincere witness and I believe that he experiences the physical symptoms he describes. Unfortunately for Mr. Hopkins, the evidence in this case simply falls far short of establishing that these symptoms are attributable to the motor vehicle accident.
[82] Mr. Hopkins is entitled to general damages in the amount of $2,500.
[83]
If the parties are unable to reach agreement on
costs, I invite them to file written submissions within 30 days of the date of release
of this decision.
McDougall, J.