IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Morel v. Bryden, 2006 NSSC 218
Date: 20060705
Docket: S.H. No 178789
Registry: Halifax
Between:
Jocelyn Morel
Plaintiff
v.
Patrick Bryden
Defendant
DECISION
Judge: The Honourable Justice Suzanne M. Hood
Heard: February 13 to 21, 2006, in Halifax, Nova Scotia
Written Decision: July 5, 2006
Counsel: Peter Landry, for the Plaintiff
James L. Chipman and Amy Higgins, for the Defendant
By the Court:
[1] Jocelyn Morel was injured in a rear-end motor vehicle accident on May 29, 2000. Liability is not in issue. Damages are in issue.
ISSUES:
(1) General Damages
(2) Past Loss of Income
(3) Future Loss of Income/Diminished Earning Capacity
(4) Loss of Valuable Services/Housekeeping Capacity
(5) Future Medical Expenses
(6) Special Damages
FACTS
[2] On May 29, 2000 at approximately 2:40 pm the vehicle which Jocelyn Morel was driving was struck from behind. She was stopped at a crosswalk on Portland Street at McKay Street, a residential area near downtown Dartmouth. The damage to the family van, a 1996 Ford Windstar, was $1,223.09 which included labour of $486.45; parts of $607.72; other of $128.92 (Exhibit 7). The damage was to the rear bumper and the van’s liftgate. Jocelyn Morel’s son who was with her was uninjured in the accident.
[3] After the accident, Jocelyn Morel continued on her way to the bank in downtown Dartmouth and then to Costco in Bayer’s Lake. There she felt twinges in her neck, drove her son home to Cole Harbour and then went to the Dartmouth General Hospital arriving between 5:00 and 6:00 p.m. At the hospital, she was given a soft collar and Tylenol 3 and told to see her family doctor if it did not clear up within two weeks.
[4] Two weeks later, Jocelyn Morel went to her family doctor, Dr. Peter MacAulay, who is a general practitioner practising at the Forest Hills Medical Clinic in Cole Harbour. His reports are at Tabs 23, 24 and 25 of Exhibit 1. He first treated Jocelyn Morel’s high blood pressure but also booked an x-ray of her thoracic and cervical spine and referred her for physiotherapy. She went to physiotherapy at Renova Physiotherapy in Cole Harbour for 6 to 8 weeks.
[5] Jocelyn Morel saw Dr. MacAulay again that year on numerous occasions including June 30, July 31, August 17 and October 16. On July 21, 2000, he reported that Jocelyn Morel “felt that physio was not really making any difference ...”. (Exhibit 1, Tab 23, p. 2) His report says he put her on an anti-inflammatory and encouraged her to “maintain her range of motion exercises” (p. 2).
[6] The report indicates that on August 17, 2000: “She was encouraged to continue with application of ice and heat and to conscientiously watch her posture, do range of motion exercises, continue with the Vioxx, and use a soft collar intermittently for relief of pain or fatigue.”
[7] On October 16, 2000, Dr. MacAulay’s diagnosis was “still that of primarily a whiplash injury to her lower cervical spine and myofascial pain syndrome”. He prescribed Elavil at night and referred her again for physiotherapy and massage therapy.
[8] In February 2001, Dr. MacAulay recommended Jocelyn Morel use regular Tylenol and he prescribed an increased dosage of the pain medication (Exhibit 1, Tab 24, p. 1).
[9] On May 31, 2001, he wrote a prescription for a TENS machine, suggested she take two Tylenol Extra Strength three times a day and referred her to the Pain Clinic. On August 17, 2001, he prescribed Tylenol 3.
[10] Jocelyn Morel saw Dr. J.J.P. Patil, a physiatrist, on referral from Dr. MacAulay on August 28, 2001. He did not testify. Dr. Patil’s report at Tab 33, p. 18 says:
As far as treatment plans were concerned, I asked her to stop doing the side-bending exercises for her neck, which I felt could one of the aggravating factors for her pain. I put her on a home program consisting of the use of local heat and neck and shoulder exercises, which I asked her to do three or four times a day. I also recommended that she go on a walking program for 20 to 40 minutes daily. I asked her to continue with her Elavil in a dose of 30 mg at bedtime which could help her sleep. I also asked her to decrease her water intake after 6 pm in order to avoid going to the bathroom at night. I recommended that she adjust her computer monitor so that it was set at eye level which should reduce the neck pain which she experienced when she sat in front of the computer.
As far as diagnosis was concerned, your client sustained a cervical sprain of mild to moderate degree. She also suffered from a disturbed sleep pattern.
[11] His conclusion was as follows on pp. 18-19:
From the information I have thus far there is nothing to suggest that the neck sprain itself, which she sustained as a result of her motor vehicle accident on May 29, 2000, would result in any significant long term disability. Generally people with her degree of sprain can be symptomatic anywhere from six to 24 months. The pain usually decreases with the passage of time. However, factors such as excessive stress, disturbed sleep pattern, underlying anxiety, depression, inappropriate therapeutic exercises or poor posture can prolong the pain process, in spite of the fact that the healing process is over.
[12] Dr. MacAulay reported at Tab 24, p. 2:
She was next seen October 10, 2001, in the interim having seen Dr. Patil, a physiatrist. He felt that she had a cervical sprain and a disturbed sleep pattern. His recommendation was to increase the Amitriptyline to 40 to 50 mg at bedtime, to continue with the home program of exercises and he would check her in the spring. He encouraged her strongly to continue on a regular aerobic walking program.
[13] On November 8, 2001, Jocelyn Morel was taking one tablet of Codeine 30 mg twice a day. Dr. MacAulay referred Jocelyn Morel to the Heart Health Clinic in February 2002 because of her cardiovascular risk factors.
[14] When Dr. MacAulay saw Jocelyn Morel on February 14, 2002, she mentioned having seen an article with respect to Botox use for neck injuries. He arranged for her to see Dr. David King who gave her four trigger point injections of Xylocaine on April 12, 2002. On April 18, 2002, Dr. MacAulay began giving Jocelyn Morel these injections which were repeated on April 22. On April 29, she had two such injections and, on May 13 and June 13, only one.
[15] Jocelyn Morel saw Dr. MacAulay’s locum on July 29 and August 2, 2002 and was prescribed pain medication. Dr. MacAulay saw her on August 7 and prescribed Codeine and booked a trigger point injection, two of which were given on August 9.
[16] Dr. MacAulay’s next report is dated March 2, 2004. In the interim, Jocelyn Morel had been receiving Botox injections from Dr. King and had seen Dr. Beauprie at the Pain Clinic on May 1, 2003 (Tab 31, p. 7, Dr. King’s report) and again on January 26, 2004 (Tab 31, p. 2). Dr. Beauprie’s reports are not in evidence.
[17] Jocelyn Morel received Botox injections after Allstate approved the cost of the Botox at the request of Dr. King (Tab 29). She received Botox injections in April, July and October, 2003 and in January and April, 2004. Jocelyn Morel also attended a Pain Management Clinic in November and December , 2003 (Reports in Exhibit 6, last 3 pages). As part of the program, she participated in an exercise program and occupational therapy sessions.
[18] Jocelyn Morel testified about the effects of pain upon her. She says she paces herself, wears heat patches and uses a “magic bag”. She testified the TENS machine is not as effective as it previously was. She says lying down is the only way to get relief. She said she has had physiotherapy, massage therapy, traction, acupuncture and uses heat and hot showers as well as marihuana to give her relief from the spasms in her neck.
[19] Jocelyn Morel testified that working at the computer is painful and she can do it for a maximum of one to one and a half hours at a time. She also found talking on the telephone difficult and she now uses a headset. She has a raised kitchen counter which she uses for meal preparation. She still does housework except the heavy housework. She says she does less housework than before and it takes longer. For example, she must rest while doing the vacuuming. She still does all the laundry including that of her nineteen year old son.
[20] Jocelyn Morel testified that she still drives but fastening the seatbelt, doing shoulder checks and backing up are problematic. When she grocery shops alone, she testified she holds her neck before picking things up and brings the groceries into the house little by little.
[21] As for hobbies, Jocelyn Morel testified she used to read a lot and play Nintendo. She said she had to give up the latter because of the pain and that she reads less because she cannot hold her head down to read and holding the book up in her hands is too difficult.
[22] She said she used to walk for exercise but gave it up because the cold made her neck worse. She did not testify about doing any home exercises on a regular basis.
Dr. David King
[23] Dr. David King was qualified to give expert opinion evidence as a neurologist and in his sub-specialty, movement disorders. He first saw Jocelyn Morel on March 26, 2002, approximately twenty-two months post-accident, on referral from her family doctor, Dr. MacAulay. The letters from him to Dr. MacAulay are in Exhibit 3. There are several more at Tabs 26-28 and Tab 30 of Exhibit 1 and his neurology report is at Tab 31.
[24] Dr. King’s initial opinion (Tab 26, p. 3) was:
1. Opinion: This woman may have primarily a myofascial pain syndrome. I couldn’t find much evidence of facet joint disease, there is certainly no root problems and no discogenic disease.
He recommended trigger point injections and, as set out above, he began these on April 12, 2002. When he saw Jocelyn Morel again on January 16, 2003, his opinion (Tab 28, p. 2) was:
1. Opinion: On-going myofascial pain secondary to her injury.
[25] In preparing his neurological report, Dr. King met with Jocelyn Morel on April 21, 2004. He listed Jocelyn Morel’s Relevant Current Complaints as (Tab 31, p. 7):
She has neck pain extending down the left trapezius to the shoulder, and down towards the vertebra prominens, to the centre and at the base of the skull.
[26] He did a functional capacity assessment which is based on a self report of the patient about various activities. Dr. King distinguished this from the Functional Capacity Evaluations done by a physiotherapist. He said his is subjective based on information from the patient. He also performed a physical examination. In his Conclusion, he states on p. 32:
Mrs. Morel sustained a soft tissue injury to the neck in a motor vehicle accident on the 29 May 2000. The mechanism of the accident, the symptoms, the examination and the response to treatment all suggest that she has a myofascial pain syndrome involving the left multifidus, left trapezius and left scalenes. This is sometimes referred to as WAD 2 after the Quebec Classification.
[27] Dr. King assessed Jocelyn Morel using the “London Handicap Scale” which assesses ability under six categories with a range of 0 to 5, from “not at all”, to “very slightly”, to “quite a lot”, to “very much”, to “almost completely” to “completely”. Jocelyn Morel scored a 1 on four of the six categories and 2 on two of the categories, one of which is “Work and Leisure” (p. 35). Dr. King’s conclusion of total impairment is 27% or “mild” with the mild range running from 21% to 40%.
[28] Dr. King, on p. 37, concluded with respect to Jocelyn Morel’s Current Work Capacity:
She has had significant difficulty in doing her work. She is perhaps capable of doing 50% of what she could before. She is limited by pain in her neck when she sits at a computer terminal or uses the phone. Pain and medication make it difficult for her to concentrate on her tasks as a bookkeeper. She is not completely disabled but her work efficiency is reduced.
[29] On p. 38, Jocelyn Morel’s Work Prognosis is stated as:
We have a 40% chance of lessening her pain levels sufficiently to allow her to return to her previous level of work performance. It is likely that she will have a permanent partial disability.
[30] On cross examination, Dr. King agreed that it was the self report of Jocelyn Morel upon which he based his conclusion about her work capacity. He agreed she could do sedentary work which, according to the chart at the last page of Exhibit 3, includes “examining and analysing financial information”.
Dr. Michael Gross
[31] Dr. Michael Gross was qualified to give expert opinion evidence in orthopaedics including the assessment, diagnosis and treatment of musculo-skeletal injuries. He examined Jocelyn Morel in an Independent Medical Examination on June 22, 2005. His report is at Exhibit 8, Tab 2. Under Current Symptoms, Dr. Gross states on p. 2:
Ms. Morel states that she generally has pain all day in varying degrees. She starts out pain-free in the morning but gets spasms after 30 to 45 minutes. She does not work and finds that housework aggravates her complaints. She finds that anything involving head movement makes things worse. She states that she has deep pain (sic) the spinal column at the top and points to the C7 spinous process.
Sleep Patterns
Ms. Morel states that her sleep patterns are variable. She finds that Amitriptyline helps. She is up three or four times most nights, not necessarily with pain - she just wakes up.
[32] Dr. Gross’s report lists the medical and other information he reviewed but he testified his practice is not to review that material until he has seen the person and formed his own opinion. His Diagnosis (Exhibit 8, Tab 2, p. 10) is:
DIAGNOSIS:
1. Mild soft tissue injury to pericervical spine tissues.
2. Severe hypertension.
3. Obesity.
4. Silent cerebal infarct.
5. Heavy smoking history.
6. Previous history of depression and anxiety.
[33] In his comments on p. 10 and 11, Dr. Gross says:
Ms. Morel was not a healthy person prior to and post motor vehicle accident. She had severe hypertension and there is evidence on the CT scan that she had a silent cerebral infarct which undoubtedly must be related to her hypertension.
Ms. Morel also has a heavy smoking history of two packs a day for many years. She is also significantly overweight.
These factors predispose a person who receives any form of injury to have a slow recovery from those injuries related to factors that are controllable by the individual and not related to the injury.
Another factor is that Ms. Morel had these pre-existing factors, continued to smoke, continued to have problems with her blood pressure and continued to have significant problems with her weight afterwards, all which would significantly impede her ability to recover from any accident no matter how minor.
[34] He continues on p. 12:
In order (sic) words, there is significant evidence that Ms. Morel’s physical limitations are minor and that her psychological response to these minor injuries have played a significant part in her inability to return to all of her activities.
[35] He concludes on p. 12 and 13:
I can find no evidence based on my examination or my review of the material supplied that there has been significant physical limitations to prevent Ms. Morel from performing her daily duties.
I think the most significant long-term health predictors for Ms. Morel relate to her weight, her smoking, and her hypertension. I do not think it is likely that she will have a normal life expectancy unless all of these are rigorously controlled. There is no evidence that Ms. Morel has stopped smoking. She has lost weight but she is significantly overweight with a BMI of 29 according to her family doctor’s reports.
The hypertension is again under control but it is interesting to note that Doctor MacAulay at some point wondered whether he was having difficulty controlling her hypertension because of her smoking.
I think these mitigating factors are directly controlled by Ms. Morel and this has a bearing to both her overall health and the way that she has responded to this specific minor injury.
Overall, I find no evidence based upon my assessment of Ms. Morel, my examination and my review of the copious documentation, that this person has any significant physical disability resulting from the motor vehicle accident. I do not think that she has been prevented from doing the duties of her job as these were not particularly physically onerous and easy adaptations could have been made with respect to the computer, telephone, etc. that were required for her to continue with her bookkeeping duties.
[36] When Dr. Gross testified, he said his conclusion was that Jocelyn Morel had suffered a mild soft tissue injury. He said he would not use Botox as Dr. King did but, after this length of time post-accident (almost 6 years), exercise is the best thing. He said he agreed with Dr. King’s diagnosis with one exception. He said it was his opinion that myofascial pain and soft tissue injury are the same thing. He said his preferred description of the result in some situations is not “chronic pain” but pain that becomes a “chronic problem”. However, in cross examination, he agreed he is not a chronic pain specialist.
[37] Dr. Gross said, with respect to a soft tissue injury, that you treat the acute phase of inflamation and pain. After the acute phase ends, he said there may be scarring and muscle wasting which must be treated as well as the patient’s response to pain.
[38] There is little dispute among the physicians who testified that Jocelyn Morel suffered a mild or mild to moderate soft tissue injury. The treatments for it are in dispute, with the family physician and Dr. King agreeing that the use of Botox is called for and Dr. Gross saying he would not use it. All agree that, if an injury such as this has not cleared up in two years, it is likely to continue. Dr. MacAulay and Dr. King refer to chronic pain and Dr. Gross refers to pain which is a chronic problem. I see little difference in the two from the perspective of the patient.
[39] Dr. MacAulay has kept Jocelyn Morel on narcotics while Dr. King said an effort should be made to wean her off them and Dr. Gross said he is not in favour of their long term use beyond the acute phase of an injury.
[40] All three physicians agreed that exercise is called for and Dr. MacAulay understood Jocelyn Morel was exercising including doing range of motion exercises. Dr. Patil’s report also refers to exercises and walking.
[41] In terms of the impact of her injuries, both Dr. MacAulay and Dr. King agreed Jocelyn Morel can do sedentary work. Dr. Gross, based on an interview with Jocelyn Morel and a physical examination, both of which totalled 42 minutes, and his subsequent review of other material, concluded he could see no “significant physical disability” and that Jocelyn Morel would not be prevented from doing her job.
Video Surveillance
[42] A videotape and report of surveillance is Exhibit 8, Tab 3. The videotape from January 28, 2002 shows Jocelyn Morel driving her car and going shopping with her son. The accompanying report on p. 2 indicates she left home at 9:45 a.m. and shopped at two different locations with a total time for the outing of approximately 2 ½ hours. Jocelyn Morel’s son pushed the shopping cart from Costco to the car and he can be seen checking to the rear as Jocelyn Morel backed out of the parking space.
[43] The surveillance occurred approximately twenty months post-accident at a time when Jocelyn Morel was not yet having trigger point injections which began in April 2002 and before the Botox injections began in April 2003.
CREDIBILITY
[44] I have no doubt that Jocelyn Morel was injured in the motor vehicle accident. Dr. King, for the plaintiff, concluded she is not malingering and Dr. Gross, the expert for the defendant, said on cross examination that he saw no evidence of malingering. The real issue is the extent of her on-going medical problems and the effect these have on her daily activities and her ability to work.
[45] I am satisfied on the evidence that Jocelyn Morel suffers from pain. She testified about her pain. She testified that she uses heat patches and, during the trial, after she testified, she wore tops with necklines that made the heat patches visible. However, she also sat on the wooden court benches throughout the trial for stretches of time up to two hours, although she testified that she brought a cushion on which to sit. When she testified she often placed her hand on the area between her neck and her left shoulder although she also often gestured with both hands while testifying.
[46] Bruce Morel testified that Jocelyn Morel is “housebound” but that is clearly contrary to the evidence, both Jocelyn Morel’s evidence in court and the evidence from the videotaped surveillance. Jocelyn Morel testified she does drive the car and this is shown in the videotape. Accordingly, she does run errands and goes shopping. At pp. 10-15 of Dr. King’s report, he sets out her responses in a number of areas under the heading “Functional Capacity.” Included in these are responses to questions about shopping (p. 12) and driving (p. 13). She also referred to going to movies (p. 14). From this and from her testimony, I conclude Jocelyn Morel is not “housebound”, although these same responses indicate she is somewhat restricted in these outside activities.
[47] I conclude that, although Jocelyn Morel did not deliberately lie, she has to some extent exaggerated her situation; that is the effect of pain on her daily activities and her ability to earn an income. I have no doubt that Jocelyn Morel has more difficulty doing day-to-day activities and that her ability to work in some occupations has been affected. Dr. King’s report (Tab 31) at p. 14 says with respect to tracking “... she cannot do that now. They had to abandon tracking.” As I will elaborate on under the heading of “Past Loss of Income”, I conclude that tracking had been abandoned prior to the accident.
[48] At p. 25 of his report, Dr. King notes:
Neck Movements: Strength normal. No wasting in the sternocleidomastoid or trapezius muscles.
[49] Dr. King also notes that, after his examination, Jocelyn Morel’s pain level was 3 out of 10 (p. 29). On p. 32, he concludes she has 5% “Current Severity Whole Person Impairment.” On the London Handicap Scale referred to on pp. 33-36, Jocelyn Morel’s score was 8 out of a maximum possible score of 30, resulting in a 27% “total handicap” which is at the lower end of the mild range (p. 35). Under the category of “Work and Leisure”, she rated herself as 2 out of 5. The effect was “Quite a lot: you find something to do almost all the time, but can not do some things for as long as you would like. Mild disadvantage.”
[50] Dr. Gross testified that, if a person does not use an injured body part, it results in muscle wasting. He testified that in his physical examination of Jocelyn Morel he noted no muscle wasting in the neck and shoulder area. He said if there is muscle wasting it is an indication that the pain is stopping the person from moving, the muscle is not being used and one sees wasting.
[51] Jocelyn Morel testified that she had to stop playing Nintendo games because of the pain. However, in Dr. MacAulay’s testimony, he said on cross examination that in January 2004 he told her to stop using Nintendo because he believed it was causing the tingling in her fingers. More than 3 ½ years after the accident she was still playing Nintendo and, if she stopped then, it was only because Dr. MacAulay concluded it was causing tingling in her fingers. On cross examination, Dr. MacAulay said that the complaint of tingling had nothing to do with the accident.
[52] I also have some concerns abut why Jocelyn Morel did not in her testimony mention the fact that she had broken her ankle on June 30, 2005, underwent surgery and spent 5 days in hospital (see Ex. 9).
GENERAL DAMAGES
[53] Jocelyn Morel’s claim for general damages is $60,000.00. The defendant says that they are within the Smith v. Stubbert, [1992] N.S.J. No. 532 (C.A.) range and should be in the middle of that range.
[54] Jocelyn Morel says her general damages are beyond the Smith v. Stubbert range because they are more than just persistently troubling; however, her counsel admits they are not permanently disabling although some of the authorities cited in his submissions were cases where the plaintiff was in fact permanently disabled. For example, in Marinelli v. Keigan (1999), 173 N.S.R. (2d) 56 (CA), the plaintiff was in such debilitating pain that she was prevented from work. The Court of Appeal in that decision referred to Dillon v. Kelly (1996), 150 N.S.R. (2d) 102 (CA) where Pugsley, J.A. said in paras. 74 and 75:
[74] There is unanimous agreement amongst all the professionals, including Dr. Dhawan, that she suffers from, and is disabled by, chronic pain. The trial judge accepted these opinions.
[75] I conclude that the range expressed in Smith v. Stubbert is for an injury considerably less debilitating than that suffered by Mrs. Dillon.
[55] The court in Dillon contrasted Ms. Dillon’s injuries with those of Mr. Smith in Smith v. Stubbert and those of Ms. Woods in Woods v. Hubley, [1995] N.S.J. No. 459. Both Ms. Dillon and Ms. Woods were found to be totally disabled. That is to be contrasted with the conclusion in Smith v. Stubbert that Mr. Smith was not permanently disabled from any type of work.
[56] In the cases of Ms. Woods and Ms. Dillon, there was also a psychological element to their pain. Both suffered from depression. Jocelyn Morel was not referred for any psychiatric or psychological treatment or prescribed any medication for depression.
[57] As mentioned above, Dr. King concluded Jocelyn Morel had a 5% “whole person impairment” and, on the London Handicap Scale, had a mild handicap of 27%. The range for a mild handicap is from 21% to 40%. Dr. King testified he uses a different system now with scores out of 40 and which includes a score for driving a car and which separates work and leisure/social activities. He also noted that Jocelyn Morel’s pain level decreased during the testing, rather than increasing which is normally the case.
[58] Dr. King concluded Jocelyn Morel could do sedentary work when he was referred to the chart at p. 6 of Exhibit 3. He agreed that housework falls within the “light” physical demand category.
[59] Dr. Gross concluded that, with adaptations such as a telephone headset and an ergonomic computer/desk chair, Jocelyn Morel would not be prevented from continuing with the work she previously did for Morel Promotions.
[60] Dr. MacAulay’s reports (Tabs 23, 24 & 25) outline Jocelyn Morel’s treatment history and his conclusions. His report of November 8, 2000 (Tab 23) indicates on p. 2 that in October 2000 Jocelyn Morel’s main concern was that she had daily pain lasting 3 to 4 hours per day. In his September 4, 2002 report (Tab 24, p. 1), Dr. MacAulay indicates that in August 2001 Jocelyn Morel was complaining of “intermittent, fairly severe pain in her neck.” In November 2001, “she felt she was doing much better” (p. 2) and on January 9, 2002 (p. 2) “she continues to do reasonably well, although still having pain and discomfort using but manageable from what I can tell on codeine 30 mg, one tablet twice a day.” After trigger point injections “she commented that these helped immensely” (April 18, 2002).
[61] His report (p. 2) says she saw him on August 7, 2002 reporting she “had a flare of her left myofascial neck pain.”
[62] Dr. MacAulay’s report of March 2, 2004 (Tab 25) concludes on p. 2: “Ms. Morel continues to be symptomatic ... .”
[63] In testimony, Dr. MacAulay said he expected the pain to continue and be intermittent, but agreed she could do sedentary desk work.
[64] In my view, Jocelyn Morel’s situation is quite different in kind from situations of Ms. Woods and Ms. Dillon and more akin to that of Mr. Smith. Her injuries are persistently troubling but it is admitted they are not permanently disabling. I conclude therefore that they fall within the Smith v. Stubbert range.
[65] The next issue is to determine what that range is in 2006 and where these injuries fall within the range.
[66] Smith v. Stubbert was decided in 1992 and established a range of $18,000.00 to $40,000.00 Almost nine years later, Porter v. Langille, [2001] N.S.J. 249 updated this range to $24,000.00 to $50,000.00. Some modest adjustment to that range is warranted after a further five years. I conclude the range now is $26,000.00 to $52,000.00.
[67] Mr. Smith in Smith v. Stubbert was found to have suffered injuries at the top end of the range. As Chipman, J.A. said at p. 8 of 22:
... it was open to infer from the large body of medical evidence given by many other doctors that the respondent did sustain a whiplash injury with prolonged subsequent physical disability and a substantial emotional impact. The respondent maintained that he was off work up to the time of trial as a result of this injury. He was by no means without capabilities. ...
Mr. Smith suffered “prolonged” disability and a “substantial emotional impact.”
[68] In Leddicote v. Nova Scotia (Attorney General) 2002 NSCA 47, 203 N.S.R. (2d) 271, cited by the defendant, no appeal was taken from the trial judge’s award of $30,000.00 in general damages where the trial judge found the plaintiff “suffers from chronic pain syndrome or fibromyalgia” (para. 3). The trial decision was in 2000 before Porter v. Langille, supra, was decided and was an award in the mid range of Smith v. Stubbert.
[69] In White v. Slawter (1996), 149 N.S.R. (2d) 321 (C.A.), the Court of Appeal concluded that Mr. White should have a damage award at the top end of the Smith v. Stubbert range. In para. 120, Freeman, J.A. said:
[120] ... The upper end of the range would contemplate severely disabling pain and a prognosis that it would continue indefinitely.
[70] In Elliott v. Nicholson (1998), 171 N.S.R. (2d) 252 (SC), the plaintiff had a severe whiplash. As Hall, J. said in para. 87:
[87] ... Initially the injuries were disabling to the point that she was unable to continue her academic pursuits. For a brief period of time she was able to work, but her condition deteriorated to the point where she became totally disabled for approximately three years. ...
[71] He concluded in para. 88:
[88] ... In Smith v. Stubbert the plaintiff suffered a soft tissue injury from whiplash and chronic post traumatic stress disorder resulting in a permanent partial disability. To my mind, the injuries received by Ms. Elliott and the resultant pain, discomfort, emotional disturbance and impact on her lifestyle were far greater than that experienced by the plaintiff in Smith v. Stubbert.
[72] In Knott v. Hall (2003), 213 N.S.R. (2d) 5 (SC), the plaintiff had chronic pain in her neck, shoulders, upper and lower back and suffered debilitating headaches. The neck shoulder and upper back pain were moderate to severe but not totally disabling. The lower back pain totally disabled her from future employment but was partially related to medical events post-accident. She was also diagnosed with a major depressive disorder.
[73] In Gaum v. D.G. Wolfe Enterprises Ltd. (1998), 171 N.S.R. (2d) 76 (SC), the injury was of a different kind entirely from this as was the effect upon the plaintiff’s employment and daily activities. I do not find it helpful.
[74] The issue of mitigation must be considered in determining the appropriate general damage award in this case.
[75] Dr. MacAulay testified that he advised Jocelyn Morel to exercise and testified that he understood that she took his advice. He said he has always told her to maintain an exercise regime and range of motion exercise.
[76] Dr. Gross testified that exercise is always recommended but that a person’s natural response to an injury is not to use the injured part which results in muscle wasting. He said, as a result, exercise is necessary to restore normal function.
[77] Dr. Gross also said that in his opinion smoking inhibits healing of soft tissue injuries. Jocelyn Morel was encouraged to stop smoking because of her other risk factors.
[78] Dr. Patil’s report (Tab 33, p. 18) referred to his treatment plan for Jocelyn Morel. His report says:
I put her on a home program consisting of the use of local heat and neck and shoulder exercises, which I asked her to do three or four times daily. I also recommended that she go on a walking program for 20 to 40 minutes daily.
[79] Dr. MacAulay referred Jocelyn Morel to the pain clinic. The report of the Pain Self-Management Program is at pp. 11-13 of Exhibit 6. The physiotherapist reported she was a “lively participant” and showed an interest in “continuing with the exercises learned in the program” at home. The occupational therapist reported that Jocelyn Morel’s long-term goal was: “In two months I will maintain the ‘fun and fitness’ routine 3 times a week using videos and an exercise ball.” The report continued:
... The change in satisfaction score is statistically significant and indicates that on the last day of group Ms. Morel felt she was performing her identified activities better than when she first arrived, and feeling significantly more satisfied. Ms. Morel attributed these changes to an improved fitness level, and an improved outlook with regards to her ability to manage her pain.
According to Dr. Gross’s interpretation of these results, she had a desire to improve, did well and reached a good exercise level because her heart rate was up.
[80] Jocelyn Morel testified about the pain clinic program and her attitude toward exercise. She admitted that she hates to exercise and gave up on the exercises she was taught at the pain clinic after about four weeks, that is, by early 2004. She agreed on cross examination that when she did them at the pain clinic they worked but said they were not worth the effort. She said they worked at the pain clinic because the physiotherapist was there to tell her how to do them. She also said she would hate to go to the gym and would not be able to do most of the group activities in any event. On re-examination she said the exercises were not doing any good and made it worse when she moved her shoulders. She did not say she followed Dr. Patil’s advice about neck and shoulder exercises or to walk 20 to 40 minutes per day. In fact, she said she gave up walking because, when it was cold, it made her neck worse.
[81] The exercises reportedly did some good when Jocelyn Morel exercised at the pain clinic. Furthermore, when Jocelyn Morel said the exercises made it worse when she moved her shoulders, that is consistent with Dr. Gross’s evidence that moving an injured part does hurt but is necessary to restore function.
[82] In White v. Slawter, supra, Freeman, J.A. said at paras. 88 and 89:
[88] If the plaintiff diligently attempts to mitigate his damages and no improvement results, he will then be entitled to recover damages in full measure for the disabilities that continue from secondary causes related to the initial injuries, even in the event of full recovery from the initial injuries. If, however, there is medical evidence that a substantial improvement could have been expected in the plaintiff’s condition if he had followed medical advice, and he failed to follow it, then he will be deprived of damages resulting from his own failure. ...
[89] The activities – work and/or exercise– required to keep soft tissue injuries from developing into chronic pain syndrome are likely to be painful. This is recognized by the medical profession and summed up by saying that the activities ‘hurt but do no harm’. A diligent plaintiff deserves to be compensated by increased damages for pain and suffering for what he must endure on the road to recovery, but he is not entitled to refuse the necessary discomfort and claim compensation from the defendant for the resulting disability. The governing concept is reasonableness: a reasonable person must be expected to endure a reasonable degree of pain in an effort to avoid long-term disability.
[83] Although smoking is an addiction and not easy to stop, the decision whether to exercise or not is another matter. Jocelyn Morel chose not to exercise even after seeing the benefits at the pain clinic. She did not follow the advice of her family doctor about exercise, especially range of motion exercises. Nor did she follow Dr. Patil’s advice about neck and should exercises, three to four times per day and walking 20 to 40 minutes per day. In my view, this is a failure to mitigate which has had an adverse effect on her recovery.
[84] Jocelyn Morel did not testify that she is unable to do her daily activities. She testified about what she does around the house, and about her telephone and computer use. She drives a car. She is in fact quite independent because her husband is away on business quite often and her son, like most young adults, does not do much around the house. This is quite different from the situation described by Freeman, J.A. and quoted above.
[85] I conclude that Jocelyn Morel’s injuries are not at the upper end of the Smith v. Stubbert range as updated. Her damages should be reduced by her failure to mitigate. I therefore conclude that an appropriate award for general damages is $35,000.00.
PAST LOSS OF INCOME
[86] Jocelyn Morel was employed at various jobs until 1995 when her position at Global TV was eliminated. She had before that time become a 50% shareholder in what was then her husband’s business, Morel Promotions Incorporated. After 1995 she began to work in that business as well.
[87] Morel Promotions is a music promotions business to promote and publicize the work of Maritime musicians. Bruce Morel established it on March 24, 1995. His role was to seek out the clients and determine a work plan for publicity. He testified that Jocelyn Morel’s work was to research and write the artists’ bios, prepare press kits and press releases. She also did the day-to-day bookkeeping to get things ready for the accountant and did the bank deposits and paying of bills. This work was largely done at the computer. In addition, she did what is called “tracking”. This involves sending an artist’s latest CD to radio stations, following up by telephone with the music or program directors to get them to play the CD and then following up again by telephone to see how often it was played. Jocelyn Morel testified that she worked 30 to 40 hours per week in the business including daytime, evening and weekend work.
[88] Because they were shareholders in the business, Jocelyn and Bruce Morel took dividends from the company not a salary. For that reason, after the motor vehicle accident she did not receive the weekly indemnity benefit from her Section B insurer, Allstate Insurance Company. She did continue to receive dividends from Morel Promotions as is evidenced in the Plaintiff’s Exhibit Book, Exhibit 1, Tab 18.
[89] In 1995, Jocelyn Morel had employment income of $28,069.00 for the part of the year she was employed at Global TV and other income of $19,583.00, likely in the form of severance, etc., from Global.
[90] In 1996, Jocelyn Morel received $18,816.00 in employment insurance and $5,000.00 in dividend income, grossed up for income tax purposes to $7,500.00. In that year, Bruce Morel took $25,000.00 in dividends from the business (Exhibit 1, Tab 3).
[91] In 1997, Jocelyn Morel’s dividends were $8,000.00 grossed up to $10,000.00 for income tax purposes. Bruce Morel’s dividends were $32,000.00 (Tab 4).
[92] In 1998, each took $30,000.00 in dividends (grossed up to $37,500.00) and in 1999 each took $24,000.00 in dividends (grossed up to $30,000.00). In the business’s fiscal year 2000 which ended on February 29, 2000, before the motor vehicle accident, each received $25,500.00 in dividends (grossed up to $31,875.00).
[93] After the motor vehicle accident, Jocelyn Morel received dividends of $20,250.00 (grossed up to $25,312.50) in 2000 - 2001. In fiscal 2002, she received dividends of $25,000.00 (grossed up to $31,250.00); none in 2003 and $25,600.00 in 2004. Tab 18 does not continue beyond 2004 but Tab 12 shows that total dividends of $31,500.00 were paid by Morel Promotions in fiscal 2005 and $5,700.00 in total dividends by Music Management Incorporated.
[94] Jocelyn Morel claims past loss of income totalling $150,000.00. This is based upon the actuarial reports of Brian Burnell (Tabs 21 & 22). His December 17, 2004 report was updated by his report at Tab 22 and his calculations of loss of income range from $70,677.00 to $150,037.00 using various scenarios.
[95] In scenario one, Brian Burnell relied upon the report of Hugh Davidson, CA (Tab 2) in which Hugh Davidson concluded that Morel Promotions had a decrease in earnings of $12,991.00 per year for a total past loss of income of $80,168.00.
[96] In his other scenarios, Brian Burnell used Statistics Canada data showing average earnings in 1995 for part-time and full-time bookkeepers and accounting clerks (pp. 6 and 7 of Tab 21) and the figures ranged from $70,677.00 to $81,625.00 for part-time work to $146,273.00 to $150,037.00 for full-time work (p. 1 of Tab 22).
[97] There are several problems with these figures. Firstly, the Hugh Davidson report attributes all of Morel Promotions’ lost income to Jocelyn Morel although she was only a 50% shareholder and Hugh Davidson said he did not know what percentage of work was done by each. Secondly, Jocelyn Morel’s work was not entirely bookkeeping and accounting related work. Thirdly, Jocelyn Morel did have income post-accident from dividends from Morel Promotions Incorporated as is discussed above and shown in Tab 18. Fourthly, Brian Burnell relied on Hugh Davidson’s report which said Jocelyn Morel was severely restricted in doing her work. However, Brian Burnell did not know whether she was doing any work for the company. Jocelyn Morel was, according to her evidence, continuing to do some work for Morel Promotions.
[98] I therefore do not find the Burnell reports helpful in determining Jocelyn Morel’s past loss of income. Brian Burnell was not provided with all of the information needed to calculate past loss of income with any degree of accuracy in these circumstances.
[99] The Hugh Davidson report is not helpful either. It attributes all of the decline in Morel Promotions’ earnings to Jocelyn Morel without regard to her role in the company or the fact that she was only a 50% shareholder. He also did not consider whether any other factors contributed to the decline in Morel Promotions’ income.
[100] Hugh Davidson did not deal with the financial picture for Music Management which, according to Tabs 14 to 18, has been in operation since March 1, 2002. For example, its revenue plus that of Morel Promotions for fiscal 2002 - 2003 totalled more than $180,000.00; whereas the revenue of Morel Promotions alone for 2001 - 2002 was only $131,500.00.
[101] To determine if other factors affected the financial picture of Morel Promotions, I consider the testimony of Jocelyn Morel and Bruce Morel, the financial information at Tabs 2 to 18 as well as the report of Hugh Davidson at Tab 2 and Hugh Davidson’s letter of March 2002 (Exhibit 4). I also note that Hugh Davidson distinguished two types of financial reporting. He testified that the Financial Statements at Tabs 4-9 for 96-97 through 01-02 are “Unaudited Financial Statements” whereas those at Tabs 10-17 are what he called “Compilation Reports”. On the opening page of the former, Lyle Tilley Davidson says:
... Our review was made in accordance with generally accepted standards for review engagements and accordingly consisted primarily of enquiry, analytical procedures and discussion related to information supplied to us by the company.
A review does not constitute an audit and consequently we do not express an audit opinion on thee financial statements.
Based on our review, nothing has come to our attention that causes us to believe that these financial statements are not, in all material respects, in accordance with generally accepted accounting principles.
[102] This is to be contrasted with the “Notice to Reader” contained in Tabs 10-17:
We have compiled the balance sheet of Morel Promotions Incorporated as at February 28, 2003 and the statements of earnings and deficit for the year then ended from information provided by management. We have not audited, reviewed or otherwise attempted to verify the accuracy or completeness of such information. Readers are cautioned that these statements may not be appropriate for their purposes.
[103] For the latter, Hugh Davidson testified he received the deposit book, cheque stubs and VISA statements from Jocelyn Morel and they did some bookkeeping entries and arrived at the compiled figures contained in the reports. He agreed that, because of the difference between the two types of reports, they have not been able to scrutinize the information provided as before when they had a review engagement but did not audit the books. He said on cross examination that “you cannot rely on it for its accuracy.” He said there is less certainty than before that all the income is included.
[104] When Hugh Davidson prepared his report of October 14, 2004 (Tab 2), he referred to financial information obtained from both types of reports.
[105] Bruce Morel testified that the focus of the business changed from artist promotion to artist management. He explained that the artists wanted more than promotion and began to come to him before an album was produced rather than after. He said he now travels for tour support and goes to showcases with clients. He also testified that radio has changed and that it is a fickle and ever-changing business.
[106] In my view, this is consistent with what the financial statements from Morel Promotions and Music Management disclose. In 1995-96, tracking revenue was $40,000.00, almost half the company’s total revenues. That dropped substantially in 96-97 to only $13,000.00 and dropped again in 97-98 to $8,700.00 and remained at that level in 98-99 ($8,766.00). In 99-2000, pre accident, tracking was 0 and in 2000-2001, post-accident, was not listed as a revenue category at all. In that fiscal year, March and April and most of May were pre-accident.
[107] Correspondingly, other revenue categories increased. For 96-97, revenue from promotions was up significantly ($193,000.00 versus $6,450.00 in the previous year.) In 98-99, revenue from Artist Management appears for the first time ($20,000.00). It doubled in 99-2000 to $43,000.00 but there was no entry for it in 2000-2001, although there is an entry for other income of $26,000.00. In 2001-2002, revenue is not broken down but is approximately $10,000.00 less than the previous year.
[108] Although revenue increased substantially from 1996-97 to 97-98 (from $249,000.00 to $352,000.00), the net earnings before allowance for income taxes are little different: $39,700.00 versus $41,600.00. This is attributable to the increase in product revenue in the latter year with a corresponding increase in expenses to obtain that product.
[109] Revenues dropped back to the 96-97 level in 98-99 and net earnings before taxes remained constant ($32,500.00). In 99-2000 (pre-accident), revenues were somewhat higher at $277,000.00 and earnings before taxes increased to $70,000.00. No revenue from tracking was recorded that year however.
[110] In 2000-2001, the period running from March 1, 2000 to February 21, 2001, revenues dropped substantially to $141,000.00 and earnings before taxes to $20,000.00. That was the year of the accident. But, in the fall of 2000, Morel Promotions lost an important client, The Fables, which had an impact on revenues. At the same time travel costs increased dramatically from $7,800.00 in 1999-2000 to $57,000.00 in that year. In my view, this is a reflection of the increased travel Bruce Morel was undertaking as part of artist management. In the following year, a new expense category was added “artist and production” with an expense figure at $55,000.00 and travel expenses declined to $29,000.00, still significantly higher than two years previously.
[111] The post-accident decrease in earnings of Morel Promotions calculated by Hugh Davidson was $12,991.00 per year. In his letter of March 8, 2002 (Exhibit 4), Hugh Davidson referred to “a serious decline in business volume and profitability over the past several years.” He attached a graph which showed “a trend in operations” for fiscal years 1998-2001. It was only the last year which was post-accident. The graph shows revenue dropping continuously from 1998 on, with a corresponding decrease in expenses, while earnings remained roughly constant at around $40,000.00 to $50,000.00 per year.
[112] On March 1, 2002, Music Management was incorporated. Revenues for both companies that year totalled $180,000.00, which was greater than the revenues for Morel Promotions in each of the previous two years. In my view, this is a reflection of the change in focus from promotion to artist management. The focus of the business changed just before Jocelyn Morel’s motor vehicle accident. Tracking had disappeared as a revenue category and that had been the source of the revenue Jocelyn Morel created. Since the focus of the business changed so did Jocelyn Morel’s role.
[113] I conclude that it is largely that which affected the fortunes of Morel Promotions and the financial picture for both Jocelyn Morel and Bruce Morel.
[114] I conclude that the decrease in earnings of Morel Promotions cannot be attributed to the motor vehicle accident. A number of things contributed to the decrease in earnings of Morel Promotions. Furthermore Jocelyn Morel’s work was primarily on the expense side whereas Bruce Morel was the principal revenue generator. Jocelyn Morel had done tracking and prepared bios, press kits and press releases but it was the role of Bruce Morel to bring in the artists for whom this work was to be done.
[115] The retained earnings picture for Morel Promotions prior to the motor vehicle accident shows that Jocelyn Morel and Bruce Morel were constantly taking more out of the business than it earned. By 1996-1997 the retained earnings of Morel Promotions were negative ($3,900.00). The trend continued through 1997-1998 (-$27,700.00); 1998-99 (-$41,400.00); 1999-2000 (-$35,400.00). With the change in the focus of the business and the resulting increased travel and artist management costs, the negative picture became worse. In 2000-2001, the retained earnings deficit was $60,700.00 and in 2001-2002 was $77,300.00, reducing in 2002-2003 to $73,500.00 with Music Management having positive retained earnings of $7,250.00 that year. In 2002-2003, net earnings for Morel Promotions before taxes had improved to $28,500.00 and to $36,200.00 in 2003-2004.
[116] Thereafter, Morel Promotions’ revenues dropped in 2004-2005 to $127,300.00 and the company had a loss of $1,500.00. Music Management in 2003-2004 had no revenue, down from $64,000.00 the previous year and in 2004-2005 had revenues of only $7,000.00. For the 10 month period to December 31, 2005, Music Management had revenues of $76,000.00 while Morel Promotions had revenues of only $1,365.00 and an accumulated deficit of $130,400.00.
[117] Both Bruce Morel and Jocelyn Morel agreed that Bruce Morel is the public face of the businesses. The only revenue either company earns comes from the activities of Bruce Morel in bringing in business. I have concluded that the nature of the business changed and it resulted in less revenue-generating work by Jocelyn Morel and greater emphasis on her administrative and clerical work including bookkeeping.
[118] Both Jocelyn Morel and Bruce Morel had well-paying jobs prior to 1995. Bruce Morel lost his job and concentrated more on the business he had begun before his job ended. Then Jocelyn Morel lost her job. Both were now dependent on a newly created company to provide their livelihood. Jocelyn Morel alone previously had income of approximately $45,000.00 from employment. Once both jobs were gone their total income came from dividends from Morel Promotions which were as follows:
1996 30,000.00
1997 40,000.00
1998 60,000.00
1999 48,000.00
2000 51,000.00
2001 41,000.00
2002 24,750.00
2003 24,750.00
2004 51,200.00 Morel Promotions
11,900.00 Music Management
2005 41,500.00 Morel Promotions
[119] The difficulty with this level of dividend income was that it was greater than the net earnings of the company and put Morel Promotions in a deficit position. Furthermore, Morel Promotions did not pay corporate income tax nor remit HST (see Tabs 3 to 12). Tab 12 shows HST of $52,600.00 payable and income tax of $56,700.00 payable as of February 28, 2005.
[120] I conclude that the decrease in earnings of Morel Promotions is attributable to causes other than Jocelyn Morel’s motor vehicle accident.
[121] Jocelyn Morel received dividend income from Morel Promotions after the date of the motor vehicle accident. The year before the motor vehicle accident she received dividends of $25,000.00. The following is her dividend income after the motor vehicle accident:
2001 20,250.00 (Slightly less)
2002 25,000.00 (Same as 2000)
2003 0
2004 25,600.00 (Almost the same as 2000)
2005 ? (Dividend totals were $31,500.00 from Morel Promotions and $5,700.00 from Music Management)
[122] Jocelyn Morel said as the business went downhill she would have sought work elsewhere to supplement the family income but said she could not do so because of her injuries. I must be satisfied that Jocelyn Morel’s injuries prevented her from working at least part time and caused her to suffer a loss of income.
[123] All the treating physicians concluded that Jocelyn Morel can do sedentary work. This has been referred to above. I therefore conclude she could have worked part-time at sedentary work post-accident but she did not.
[124] In 2001, 2002 and 2004, Jocelyn Morel received dividend income from Morel Promotions. She received no dividend income in 2003 but, according to the treating physicians, she could have worked at sedentary work. There is no information about Jocelyn Morel’s 2005 income, although the financial information from Morel Promotions and Music Management show total dividends of $31,500.00 and $5,700.00 respectively were paid.
[125] Based upon all of the above, I cannot conclude that Jocelyn Morel suffered a loss of income from the motor vehicle accident.
FUTURE LOSS OF EARNINGS/DIMINUTION OF EARNING CAPACITY
[126] I have concluded above that no past loss of income has been proven. I cannot conclude a future loss of income has been established for the same reasons.
[127] Morel Promotions and Music Management do not have the sort of revenue to provide the income level Bruce Morel and Jocelyn Morel desire and which their previous jobs provided. The level of dividends Bruce Morel and Jocelyn Morel received from Morel Promotions exceeded the net income of Morel Promotions. In my view, the company can no longer anticipate paying Jocelyn Morel the same dividend income nor can Music Management. This is because of the change in the nature of the businesses and their declining revenues, not because of her injuries. If she remains a 50% shareholder in both companies, she will receive dividend income but any reduced dividend income from the companies is not attributable to the motor vehicle accident. Accordingly, I am not satisfied she will suffer a future loss of income.
[128] I must therefore turn to the issue of whether Jocelyn Morel has suffered a diminution of earning capacity arising from the motor vehicle accident.
[129] Plaintiff’s counsel concedes Jocelyn Morel is not totally disabled. The medical evidence is that she can do sedentary work. She also does some housework which is considered to be light activity.
[130] Jocelyn Morel’s previous work was not entirely of a sedentary nature. She has many skills more than those related just to computer and bookkeeping work. She had a responsible position at Global TV as Promotions Manager and had previously worked in Newfoundland doing promotions and producing. She also wrote a weekly newspaper column.
[131] Jocelyn Morel now is restricted to much more sedentary work, which often commands a lower salary than the type of work she previously did at Global TV and in Newfoundland. Brian Burnell’s report discloses that “accounting and related clerks” (p. 7 of the report at Tab 21) earned $23,703.00 to $24,313.00. These figures are not entirely representative of Jocelyn Morel’s earning capacity doing sedentary work because they relate only to one part of her work for Morel Promotions. She also performed administrative work beyond the accounting field. However, this is the only information in evidence about Jocelyn Morel’s earning potential doing sedentary work. It is to be contrasted with the last position she held where she earned approximately $45,000.00. In my view, the work of a promotions manager is more akin to the work Bruce Morel now performs.
[132] In my view, Jocelyn Morel would have some difficulty doing that type of work in future or similar work for which she is qualified by her past work experience. Although not permanently disabled, she does have persistent neck problems which would affect her ability to work full-time in a demanding job such as promotions. I therefore conclude she will be restricted in the scope of employment available to her and has suffered a diminution of earning capacity.
[133] Jocelyn Morel testified that she was much improved when having Botox injections. I will deal with this further under the heading of Future Medical Expenses, but in my view, with the use of Botox and participating in an exercise program, Jocelyn Morel’s ability to work would be much improved.
[134] The report of Brian Burnell assessed loss of income for Jocelyn Morel based on the following statement at page 5 of his report directed to plaintiff’s counsel (Tab 21):
You have informed me that prior to the accident, there was no reason to think that Mrs. Morel’s life expectancy would be any different to that of any other female of the same age resident in Canada.
Brian Burnell concluded that, as of January 2005, Jocelyn Morel had a life expectancy of 30.83 years or to age 82 and that there was a 92.95% probability she would survive to age 65.
[135] Dr. Gross disagreed with this and said that the other health factors affecting Jocelyn Morel would have an impact on her life expectancy. He said that, in his opinion, there was a significant risk that she would not have a normal life expectancy. Dr. MacAulay referred Jocelyn Morel to the Heart Health Clinic because of his concerns about her cardiovascular risk factors.
[136] I agree with Dr. Gross. In my view, that affects the assumption that Jocelyn Morel will work until age 65 as she testified she always intended. I conclude that Jocelyn Morel’s other health problems would have resulted in her retiring at age 60. Accordingly, her decreased future earning capacity should be calculated for a period of approximately six years since Jocelyn Morel will be 60 in September 2012.
[137] In my view, Jocelyn Morel’s diminution of earning capacity is related to her potential future earnings doing less well-paid sedentary work. However there is no evidence about the salary for the work Jocelyn Morel is capable of doing. As I have said above, Brian Burnell used income figures for accounting work and clerical work of the same type. In my view these are not truly reflective of the type of work Jocelyn Morel could do.
[138] Since I do not have such salary figures, I consider what the court said in Whitehead v. Misner (1982), 51 N.S.R. (2d) 111 (N.S.C.A.) at para. 57:
To determine what damages should be awarded to Mr. Whitehead for loss of future income, we cannot simply go through exercises in mathematics. Although we should take actuarial estimates into account, we must not abdicate to an actuary the judicial duty of arriving at a fair and just result. The determination should be made after considering, on the evidence, the relative probability of possible incomes that Mr. Whitehead might have earned in the future had he not been injured and the relative probability of the possible incomes that he may in fact earn. The determination should weigh and consider the divers mathematical estimates based on those incomes. In doing so, it should consider the relative probability of the various assumptions inherent in the estimates - such as the assumptions as to retirement, and the universal assumption that the income postulated will in each case continue unchanged until retirement except for the inflationary allowance built into the multipliers. The result must be appraised by judgment to ensure that it is not “inordinately high” or “unusually low”: Lewis v. Todd et al., p. 708, quoted above. The determination must on the bottom line make a “judgment call” as to what allowance for loss of future income is just and reasonable in the light of all the evidence.
[139] In Campbell-MacIsaac v. Deveaux (2004), 224 N.S.R. (2d) 315 (CA), Saunders, J.A. said in paras. 100-102:
[101 The analysis undertaken by Justice Oland in Kern v. Steele (2003), 220 N.S.R. (2d) 51; 694 A.P.R. 51; 2003 NSCA 147, beginning at ¶ 56, is most instructive. Her approach, together with the authorities upon which she relies, may be briefly summarized. When assessing contingencies the court is engaged in the exercise of examining possibilities, probabilities and chances against the likelihood that they might prevail in any given factual situation. The evidence upon which such estimations are based must be ‘cogent evidence and not evidence which is speculative’ (Schrump et al v. Koot e al. (1977), 82 D.L.R.(3d) 553 (Ont. C.A.)). Evidence which supports a contingency must show a ‘realistic as opposed to a speculative possibility’ (Graham et al v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 602 (C.A.)). Justice Oland also endorsed the approach in Graham, supra, which was to distinguish general contingencies from special ones. Into the category of general contingencies fall those features of human experience that are likely to be common to all of us, things like the aging process, sickness, or promotions at work; whereas circumstances falling into the category of special contingencies are peculiar to that particular claimant. For example, remarkable talents, education, a unique illness or a poor employment history would be characterized as special contingencies.
[102] As noted in Graham, supra, and endorsed by Oland, J.A., in Kern, the impact of general contingencies may not be easily susceptible to formal proof. A trial judge has a discretion whether to adjust an award for future pecuniary loss in order to take into account general contingencies, but any such adjustment ought to be a modest one. Where, however, a party relies upon a specific contingency, whether negative or positive, there must be sufficient proof on the record which would support an allowance for that type of contingency. At all events, as noted by Oland, J.A., the overall approach is that which best achieves fairness between the parties (Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342; 19 N.R. 209, wherein Dickson, J. (as he then was)), held at page 351 [S.C.R.] that:
‘... At the end of the day the only question of importance is whether, in all the circumstances, the final award is fair and adequate. Past experience should make one realize that if there is to be an error in the amount of an award it is likely to be one of inadequacy.’
[140] I therefore must make a judgment call based upon evidence which is not speculative. I must assess the possible income Jocelyn Morel might have earned and possible income she may in fact earn as well as the effect of her health conditions on her possible income earning ability and age of retirement.
[141] Bruce Morel said the radio business has changed dramatically. Jocelyn Morel lost her position at Global TV and Bruce Morel previously lost his job with Newcap Broadcasting. Based upon this, I conclude there may well have been fewer opportunities for Jocelyn Morel to find a new job in the $45,000.00 range in the broadcasting business. That is a contingency which I must consider based upon the evidence before me. Jocelyn Morel’s employment was largely in the broadcasting business: from 1980 or 1981 to 1988 in Newfoundland and from 1988 to 1995 in Nova Scotia. This is a special contingency affecting Jocelyn Morel. She had good talents in that area of work but the business has changed.
[142] Jocelyn Morel also has had an excellent work history. Tab 18 is a summary of her earnings since 1978 when she was 25-26 years of age. After 1982, when she was 29-30, she had earnings from employment every year. In 1986, the year her son was born, she also had UIC benefits and again in 1988, the year she and Bruce relocated to Nova Scotia. After she went to work for MITV (now Global), her earnings increased from $30,000.00 to almost $46,000.00 in six years. This work history is a positive specific contingency.
[143] The state of Jocelyn Morel’s health is also a specific contingency affecting her employment prospects. She had very little contact with her family physician, Dr. MacAulay, after coming to Nova Scotia in 1988. However, when she saw him for the injuries resulting from the accident, he detected a number of rather serious problems with Jocelyn Morel’s health.
[144] In his first report (November 8, 2000, Tab 23), Dr. MacAulay reported on Jocelyn Morel’s first visit to him after the accident on June 12, 2000. He said:
Incidentally her blood pressure was noted to be worrisomely elevated that day at 180/108 and this took priority over her neck injury.
[145] Jocelyn Morel is being treated with medication for both high blood pressure and high cholesterol. She has had a TIA which was undiagnosed until she had an MRI in August 2000. She has smoked for years, previously two packs per day, but testified she had reduced that to one pack a day but now is smoking one and a half packs per day. She was for many years over weight and grossly so, as is evidenced in Exhibit 5, photographs taken in late 1999. She reports that she has lost seventy-five pounds since the accident. She does not exercise and testified she does not like to exercise.
[146] I conclude these are realistic contingencies, not speculative ones. The net effect of these contingencies upon Jocelyn Morel is negative. She has a number of health problems which her own family doctor agreed predisposed her to serious cardiovascular problems and reduced mortality. Although her work history shows she worked continuously in increasingly responsible positions, her particular talents are in broadcasting, a business in which both she and her husband lost their jobs in the mid-90's. Bruce Morel testified that groups of stations are now joined together and there are fewer individual operators.
[147] I therefore conclude that the types of work available to Jocelyn Morel and the length of time she would work before retirement are both affected by negative contingencies which pre-dated the accident. The type of work she can now do is lower-paying sedentary work.
[148] Taking all these things into account, I conclude Jocelyn Morel has suffered a loss of earning capacity of $60,000.00 to age 60.
LOSS OF VALUABLE SERVICES/LOSS OF HOUSEKEEPING CAPACITY
[149] Jocelyn Morel continues to do most of the work around the house that she previously did. She does the cooking with a raised kitchen counter. She still does the laundry. She testified, as did Bruce Morel, that she does it less than before. Jocelyn Morel testified it now takes her longer because she must stop more often and take breaks. Jocelyn Morel also testified she can no longer do the heavy housework she previously did.
[150] Jocelyn Morel makes a claim for loss under this heading of $20,000.00 The defendant says she is not entitled to any award because this is not a situation where it should be awarded separately from general damages. The plaintiff cites Carter v. Anderson, 160 D.L.R. (4th) 464, 1998 CarswellNS 179, 168 N.S.R. (2d) 297, 505 A.P.R. 297, 42 C.C.L.T. (2d) 100 (N.S.C.A.) and the defendant cites Leddicote, supra. In the former, the plaintiff was a young woman with four young children who ran a hobby farm. There were specific things she could no longer do. Her husband had taken over most of the household tasks including:
... most of the cleaning, the vacuuming, the mopping, the tidying up, putting the laundry away, the lawn mowing, the annual spring cleaning, and the weekend bathroom and floor scrubbing.
[151] In this case, Jocelyn Morel has one son who is a young adult, aged 19, and she is still able to do most of the household tasks albeit not as quickly as before the accident.
[152] In Leddicote, Saunders, J.A. considered the factual situation in Carter v. Anderson, supra, and continued in para. 48:
48 These facts as found by the trial judge and emphasized by this court in Carter are strikingly different than the evidence proffered by Ms. Leddicote in this case. With respect, her testimony and the evidence given by others was hardly sufficient to persuade the trial judge that the appellant’s ability to be a homemaker or perform housekeeping tasks had been impaired. Justification for seeking compensation for loss of housekeeping services is dependent upon the evidence mustered to prove it. Tidman, J. observed:
...there is no evidence to suggest that she will be unable to perform such chores in the future.
I agree with the trial judge’s assessment.
[153] Justice Saunders referred in para. 49 to the decision of Roscoe, J.A. in Carter v. Anderson where she said in para. 26:
26 In my opinion, the modern advancement of this area of the law of damages, which is premised on the concept of direct economic loss of the plaintiff whose ability or capacity to perform homemaking or housekeeping tasks has been impaired, should be acknowledged and accepted in Nova Scotia. Future loss of capacity, where proved, should be compensated separately whether or not replacement help has been paid in the past. (At p. 305) (Underlining in original)
[154] The question for me is whether Jocelyn Morel’s capacity to perform housekeeping duties has been impaired. In my view, it has been to some degree. It is not to the degree suffered by Mrs. Carter where her husband had to take over many household duties because she was unable to perform them. Jocelyn Morel can still do these duties but her ability to do so has been impaired. It takes her longer, she must take breaks and she does housework less often. However, with Botox injections and exercise, her impairment will be minimized.
[155] I therefore conclude that Jocelyn Morel should be awarded $5,000.00 for impairment of her ability to perform housekeeping tasks.
FUTURE MEDICAL EXPENSES
[156] Jocelyn Morel claims $57,794.00 for future medical costs. The defendant submits there should be no award under this heading. The defendant alternatively submits that Jocelyn Morel’s Section B insurer, Allstate, should be responsible for on-going costs of Botox.
[157] In MacLeod v. Lumberman Mutual Casualty Company, 1993 CarswellNS 92, 15 C.C.L.I. (2d) 59, 121 N.S.R. (2d) 146, 335 A.P.R. 146, Goodfellow, J. concluded that certain expenses incurred within four years of the date of the motor vehicle accident should be paid by the Section B insurer after the expiry of four years. He referred to the wording of Section B in para. 16:
16 ... reasonable expenses incurred within four years ...
and, in para. 21, to the Nova Scotia Interpretation Act s. 9(5).
[158] Goodfellow, J. said in para. 33:
33 In my view, the absolute certainty of requirement meant the necessity of future expense and it was incurred immediately although the actual expenditure or payment was deferred.
He concluded in paras. 41 and 42:
41 In order for reasonable expenses to qualify as having been ‘incurred’ within four years from the date of the accident, something more than mere possible speculation or optional future expenses, that do not have the certainty required to conclude they have been incurred, but the execution of such is deferred, must exist.
42 In many cases such as Placken the conclusion will be obvious. Similarly, if treatment is certain, but medically postponed such as the Stokes case, you would again have that degree of certainty required. In a situation where a programme, say dental work, is partly completed at the limitation arrival, the future requirement of concluding the programme of treatment would also qualify as having ‘incurred’ within the limitation period and being merely in part deferred. The deferral would not in such a case bring into question a certainty of requirement of treatment but means that it has effectively been incurred.
[159] The Section B cap is $25,000.00 and, according to the testimony of Claudette Carroll from Allstate, only about $10,000.00 has ben expended. She agreed that in some cases Section B benefits are paid beyond a four-year period for on-going treatment.
[160] The defendant submits that any award for future medical expenses for Botox should take into consideration the decision in MacLeod v. Lumberman, supra, and reduce the award payable by the defendant.
[161] In his second report, dated December 22, 2005 (Tab 22), Brian Burnell calculated the present value of Jocelyn Morel’s future medical care costs to be $57,665.00 plus a tax gross up of $2,883.00 for a total of $60,548.00. Brian Burnell testified that in arriving at this figure he relied upon information about medical costs which he received from plaintiff’s counsel.
[162] Jocelyn Morel has been prescribed Amitriptyline and Codeine-Contin for pain at a cost of $149.88 and $1,052.34 per year respectively. She also claims for the future cost of Botox injections of $5,453.04 per year. She claims for the cost of all of these for a period of ten years.
[163] Dr. MacAulay referred Jocelyn Morel to Dr. David King for his opinion on Botox after Jocelyn Morel raised the subject with him. Dr. King testified that Allstate agreed to pay for the cost of providing Botox injections and he gave Jocelyn Morel several injections. He admitted that Botox use for this purpose is controversial but said he would not have continued it if he had not thought it was worthwhile. Claudette Carroll of Allstate testified it was the first time she had authorized payments for Botox use for pain. Dr. King’s opinion is that she will need it indefinitely. He testifies it costs $475.00 per vial and two vials are needed on each of Jocelyn Morel’s visits and should be repeated every three to four months.
[164] Dr. Gross testified he would not use Botox and there have been no studies about its effectiveness on musculo-skeletal injuries. On cross-examination, he agreed that Dr. King believed it was helpful for Jocelyn Morel. With respect to Amitriptyline, Dr. Gross said he would have some question about its effectiveness after six years but if it continues to be effective he would continue its usage. As for Codeine-Contin, he said he had several reasons for not liking it. In particular he did not favour its long-term usage. He said there are dependancy issues and, as time passes, greater dosages are required. In his opinion it is good for acute pain but not chronic pain.
[165] Dr. King in his neurology report dated May 7, 2004 (Tab 31) said at page 37:
An attempt should be made to wean her from narcotics and replace these with a functional adaptation program that carefully analyses the maneuvres that bring on pain and using techniques to lessen those postures and movements that cause discomfort.”
[166] I conclude that, since Jocelyn Morel is continuing to benefit from Amitriptyline, its costs should be paid in the future. Although both Dr. King and Dr. Gross had some doubts and concerns about Codeine-contin, I conclude that since her treating physician, Dr. MacAulay, is continuing to prescribe it and since Jocelyn Morel benefits from it, its costs should be paid in future too, at least for the short term.
[167] Although Botox use for pain is controversial and unproven in clinical studies, it appears to have benefited Jocelyn Morel. The medical receipts contained at Tab 32 show that Jocelyn Morel’s cost for three vials (not two) of Botox from October 2003 to November 2004 was $1,363.26 per prescription. That rose to $1,431.14 in 2005. The indication from Dr. King’s report from January 30, 2004 is that three vials of Botox in fact were used, not two as he testified.
[168] I conclude that the cost of Botox injections should be paid in future. However, if Jocelyn Morel engaged in an exercise program like that at the pain clinic her need for Botox may not continue indefinitely. Jocelyn Morel has said she would not go to a gym so she should do this exercise regime at home.
[169] I therefore conclude some allowance should be made for on-going medical expenses: Amitriptyline indefinitely, Codeine-contin for some time into the future but not indefinitely, and Botox injections for the immediate future, three to four times per year.
[170] I conclude that the defendant’s costs should be reduced because the Section B insurer’s cap has not been reached. The Botox injections were originally paid by them but stopped four years post-accident; however, in my view, the expense had been incurred within the four-year period.
[171] In all the circumstances, I must exercise a considerable degree of judgement in determining the appropriate award for future medical expenses. I conclude that $15,000.00 is an appropriate award.
SPECIAL DAMAGES
[172] Jocelyn Morel claims $7,481.51 in special damages as set out on p. 4 of the brief of plaintiff’s counsel:
1. Amitriptyline $ 252.86
2. Codeine 1,638.63
4. Botox 100U/VL
July 27, 2004 1,363.26
November 2, 2004 1,363.69
February 1, 2005 1,431.14
May 3, 2005 1,431.93
TOTAL $7,481.51
[173] The defendant does not dispute the numbers but says these costs should have been paid by Allstate. If that were done, Allstate’s total costs would increase to approximately $17,500.00, less than Allstate’s Section B cap of $25,000.00 for expenses incurred within a four-year period post-accident. I therefore conclude that the defendant is not required to reimburse these special damages incurred, but not paid, within the four-year limit for Section B payments.
PRE-JUDGMENT INTEREST
[174] The parties agreed at the pre-trial on the rates. If there is any dispute about the time period for which interest should be paid, I will accept written submissions.
COSTS
[175] If the parties cannot agree on costs, I will accept written submissions.
Hood, J.