Civil Jury Trial Closing Charge – Example 1
At the close of jury trials, the Judge delivers a ‘charge‘ or instructions to the jury.
The below closing charge, spanning close to 30,000 words, was delivered by a Judge of the Ontario Superior Court of Justice at the close of a run of the mill auto accident case in 2015. To protect the privacy of the parties, identifying information has been redacted and all names and dates changed. Any similarities to people living or dead, companies or television characters is purely coincidental.
Counsel should be prepared to object to the proposed charge, potentially vigorously. The below charge may have been objectionable in that it is unclear, confusing, repetitive (in that it addresses the same deficiencies in plaintiffs’ case again and again), and in that regard, potentially gives rise to the reasonable apprehension of bias, is prejudicial and undermines the fairness of the trial.
While I (Michael Lesage) was not involved in the below auto accident case, it is possible that the charge contributed to the defence verdict.
INTRODUCTION
[1] Members of the jury, you have now heard all of the evidence in this case and the able submissions of counsel. You have been a diligent and patient jury throughout and I express my thanks to you for your attentive participation in this trial. I know that I express this on behalf of the parties and their counsel as well. This case has been presented to you in a fair and thorough manner and the time has now arrived when your most challenging duties in this case will begin. If you approach the task ahead of you with the same commitment you have demonstrated throughout this trial, you will have served the administration of justice well.
OUTLINE OF CHARGE
[2] I want to give you, at this stage, an overview of where I will be going during my instructions to you over the next few hours. I am going to speak to you for about an hour or so and then we will have a recess of about 15 minutes and I will resume my charge.
[3] So that you may be better able to follow my charge, I will divide it into the following parts:
PART I Some general principles of law that apply to all civil jury cases.
PART II Liability. In this part of the charge I will give you instructions with respect to how you may wish determine fault with respect to the January 1, 1900 accident and how you may wish to apportion fault depending on what facts you find.
Part III A summary of the principles of law relating to the assessment of damages. I will also review the positions of the parties on damages and some of the evidence that you heard that is relevant to the assessment of damages. I will explain to you how you should go about determining the damages issues and the questions you must answer.
PART IV I will end these instructions with some final directions to guide you in your deliberations.
WRITTEN COPY OF THE CHARGE
[4] To assist you in your deliberations, I have prepared a written copy of my charge. In a moment, I will ask the Court Services Officer to hand it out. I will then read it to you and you can follow along. During the reading, I may discover some minor errors in the charge that I did not catch when I reviewed it. The official charge you must follow will be the one I give to you orally and not the one that is written, should there be any differences between them.
QUESTIONS
[5] You are probably wondering how you will perform your duties once I complete my charge. The end result is not very complicated.You have now received copies of two sets of questions. One for the plaintiff and another for the Family Law Act plaintiff. Because we were required to dismiss one juror due to scheduling issues, all five of you must agree on all of the answers to each question.
[6] The questions have been prepared with my approval. While each of you may, during the course of your deliberations, make notes or proposed answers to the questions, only one completed Jury Question sheet for each of the plaintiff and another the Family Law Act plaintiff should be provided to me from the foreperson of the jury with only one answer per question. I will deal with the questions in more detail during this jury charge.
PART I – GENERAL INSTRUCTIONS
The Importance of the Jury
[7] As jurors, you have a direct and deciding voice in the administration of justice. You are engaged in one of the most important duties that a Canadian citizen can be called upon to perform. Your experience, individually and collectively, is an invaluable means of ensuring the reliability of the fact-finding processes of this trial, and the integrity and maintenance of public confidence in our system of justice.
The Necessity of Impartiality
[8] In approaching your deliberations, you must do so fairly and dispassionately. You must approach your task without sympathy or favour for one side or the other. We are all human and we all have sympathy for others. The law does not favour any party or any lawyer. Furthermore your decision should not be based on any emotional feeling against any party, witness or lawyer. Nor should your decision be influenced by any emotions that either of the lawyers may have exhibited about the case. Your job is not to help plaintiffs’ counsel or defendant’s counsel. While your decision will have an impact on the parties, this is not a reason to decide the case in one way or another. Your task is not to decide anyone’s future. It is to make a fair and impartial assessment of the damages sustained by the plaintiffs as a result of the accident. Your deliberations must be based on the evidence, bringing to bear your individual and collective common sense and good judgment. In that way you will be assured of arriving at a fair and just verdict in this case.
The Role of Judge and Jurors
[9] When this trial started, I told you about our responsibilities, yours and mine. You and I are working together, but our roles are fundamentally different. It is your duty to deal with all of the questions of fact arising from the evidence. It is my duty to instruct you in the law that applies to this case and you must follow that law as I state it to you. You must discard any notions or opinions of your own about the law. If there is a difference between what the lawyers have said about the law in their closing submissions and what I say to you about the law, you must accept and apply my explanation of the law. Although it is not always easy, I will do my best to make that explanation as clear as possible.
[10] You may be unclear on the difference between evidence and fact. The evidence includes what each witness said in response to the questions asked. The questions themselves are not evidence, unless the witness agreed that what was asked was correct. The answers are the evidence. The evidence also includes the things that have been made exhibits. When you go to your jury room to decide this case, the exhibits will go with you. There are other things that are not evidence. You must not consider or rely upon them in this case. For example what the lawyers and I say when we spoke to you during this trial is not evidence. Thus if a lawyer said something to you in his closing address or I say something to you during these instructions that you decide is not what you saw or heard in this courtroom, you must ignore our comments. Only the exhibits and the things witnesses said are evidence.
[11] The facts are the things that you choose to believe from the evidence. The things that you choose not to accept must not be taken into account when arriving at your verdict. From the facts that you find, you may draw inferences with respect to other facts, and you may rely upon these inferences in deciding the issues raised in this case.
The Opinion of the Trial Judge
[12] To assist you in making your decisions, I will review some of the evidence. In doing so, I may leave something out that you believe to be important, or I may mention something that you believe is not important. I may refer to evidence that counsel referred to in their closing submissions or I may refer to evidence that they did not draw to your attention.
[13] I am entitled to make comments on the evidence. If I do so, I want to emphasize that you are in no way bound to follow my opinion so far as the facts are concerned. My view of the significance of the various parts of the evidence is in no way important, nor is it binding upon you. As I told you, you are the sole judges of the facts in this case. It is your duty to place your own interpretation on the evidence, and if your views are at variance with mine, or if you disagree with my comments, you not only may, but it is your duty to disregard my views or opinions on the facts and to give effect to your own.
[14] If your recollection of the testimony differs from what either counsel or I say about the evidence, be guided by your own recollection and make your own decisions as to what is the important evidence in this case.
Onus of Proof/Standard of Proof
[15] During the course of this charge I will be referring to the onus of proof and the standard of proof.
[16] In this case the plaintiffs have the onus of proving their damages. The standard of proof means the degree of proof that is required to prove a proposition. For some of the issues that you must decide, the standard of proof is what we call a “balance of probabilities”. A different standard of proof, which is a lower standard, applies to the claim for future damages. When I review the future claim with you, I will review the different standard of proof at that time.
[17] When I say that a party has the onus of satisfying you of something on a balance of probabilities, this means that there must be a preponderance of evidence to support or establish a particular proposition. The term “preponderance of evidence” means that when you consider this evidence , it persuades you on the balance of probability. The “balance of probability” simply means more likely or probable than not.
[18] I think it is helpful to think of a scale with two pans. In one pan is placed the evidence that favours the proposition. In the other pan is placed the evidence that is against the proposition. If the pan favouring the evidence can tip the scale, however slightly, then the balance of probability is met. If the evidence is evenly balanced so that you are unable to say that the evidence on either side of an issue is more probable than not, then your finding upon that issue must be against the party who has the onus of proving it. For example, if you find the evidence is weighed equally on a particular proposition as between the Plaintiffs and the Defendant then you must find in favour of the Defendant as the Plaintiffs have not met their burden of proof. From this you can also see if may only take very little to tip those scales from one side to the other.
[19] In a criminal trial, the guilt of an accused must be proven beyond a reasonable doubt. That heavy burden does not exist in civil proceedings such as these. It is only necessary in this type of action for the party who bears the onus of proof to establish its claims on a balance of probability. If you can say in respect of a particular proposition “we think it more probable than not”, then the burden of proof has been met.
How to weigh testimony
[20] In deciding what the facts are in this case, you will be the sole judges of the truthfulness of the witnesses and of the weight to be given to the testimony of each of them. When I speak of weight, I mean its significance or importance. When I speak of truthfulness, I mean how credible or believable the evidence is. You should also consider if the evidence is reliable. Reliability refers to its accuracy.
[21] In considering the testimony of witnesses you are not obliged to decide an issue in conformity with the majority of the witnesses. You can, if you see fit, believe one witness against many. You can, if you wish, decide an issue on the basis of the testimony of one witness if it persuades you of the facts that are in issue. The test is not in the number of witnesses who testified about an issue at the trial, but in the relative force or strength of the testimony of each witness in the trial.
[22] Discrepancies in a witness’ testimony, or between the testimony of one witness and that of others, do not necessarily mean that the witness should be discredited or not believed. Failure of recollection is a common experience and innocent mis-recollection is not uncommon. Discrepancies on trivial detail may be unimportant, but a falsehood is always serious.
[23] In deciding whether a witness is worthy of belief, you should bring to bear your common everyday experience in such matters. Simply exercise good common sense. That is the strength of our jury system. You are of varying ages and backgrounds, and together you bring many years of experience with you into this courtroom. Together, you are possessed of enormous wisdom and common sense. Do not be afraid to use it.
[24] You may believe all the evidence given by a particular witness, part of that evidence, or none of it. In evaluating the testimony of a witness, you may wish to consider the following:
- How did he or she “come across” while testifying? Remember that a witness may be nervous, particularly in the courtroom.
- Was the witness straightforward or evasive?
- Did he or she give answers that were inconsistent with each other, or with answers given by other witnesses whose evidence you accept?
- Is the evidence consistent with what you know about human nature and how the world works?
- Does the fact that the witness has previously given or made a statement that is inconsistent with part of his or her testimony at trial affect the reliability of the witness’s evidence?
- Does the witness have an interest in the outcome of the case? Was there any motive on the part of the witness to mislead the court?
- Does the witness exhibit any undue leanings or bias toward the party that called him or her as a witness?
- Were there circumstances that would affect the witness’ ability to provide reliable evidence to you?
- Is the evidence of the witness reasonable? Does it ring true? Does it persuade you? How does it “stack up” against the other evidence in the case?
[25] As I have said, if you think about the evidence in the light of the other evidence, and apply your common sense, you will come to the right conclusions.
Opinions Expressed With Respect To The Evidence
[26] During their addresses to you, counsel made submissions about the credibility of the witnesses and the inferences to be drawn from their testimonies. They have the right to do so, and you may find their comments helpful, but you are the exclusive judges of the evidence and the inferences to be drawn from that evidence. You must form your own views about the credibility of witnesses, the evidence and its effect. You are not bound to agree with either counsel or me on the evidence, although you are bound to follow my instructions on the law.
Number Of Witnesses
[27] Now I should mention something about the fact that a number of witnesses gave evidence for both sides, whether it is on issue of liability, damages, expert evidence or any other issue. You should know that a trial is not a numbers game. You should not decide an issue by simply counting which side has the greater number of witnesses on that issue. For example, twenty witnesses may testify to a particular fact and one witness may testify to the contrary. You are entitled to accept the evidence of the one over the twenty if you conclude that it is more worthy of belief.
[28] On the other hand, you are not allowed to disregard the testimony of the greater number of witnesses merely because of prejudice or whim. It is the convincing force of the evidence as a whole which is important, not the number of witnesses.
Direct and Circumstantial Evidence
[29] Evidence may be either direct or circumstantial. Direct evidence consists of testimony as to what a witness actually saw, heard, or did concerning an event in issue between the parties. Circumstantial evidence is evidence of a circumstance or circumstances surrounding an issue. It is circumstantial evidence if it proves a fact from which an inference of the existence of another fact can be drawn. When there is insufficient direct evidence of a fact, you may infer that fact from the evidence of the surrounding facts, so long as the inference is a reasonable one. In considering the evidence, you have the right to draw all reasonable inferences, and I instruct you that any fact proven by reasonable inference from the evidence is just as well proven as facts established by direct evidence. An example of an inference would be this. Your friend enters your home with a wet umbrella and wearing a rain coat. You may infer from that set of facts that it is raining outside. There are other possibilities to be sure, but the inference that it is raining outside is a reasonable one based on the facts.
[30] In deciding whether to rely on inferences from other evidence to establish additional facts, those inferences must be reasonable and they must arise out of the evidence. You cannot draw inferences, which are founded on mere speculation, guesswork or hunches.
Expert testimony
[31] During the trial you heard from a number of different experts. I will review some of the expert evidence for you later in my charge. At this point I want to give you some general guidance in dealing with the expert testimony.
[32] Generally speaking, a witness is not permitted to give opinion evidence in court proceedings; however, a person who has special qualifications is permitted to give such evidence to assist you in arriving at a just result. This is the reason that as the expert witnesses were called to testify, counsel reviewed with them their education, experience and credentials so as to establish the special qualifications each has to give an opinion on this case.
[33] As with other witnesses, you alone have the duty of deciding whether the witness is credible or believable and what weight should be given to his or her testimony. I remind you that when I speak of weight, I mean, its importance to the matters in issue in the trial. In determining this, you will take into account the expert’s skill, experience, knowledge and whether the expert’s skill relates to the particular matters in issue and his or her familiarity with the facts of the case. Even though a witness has very high qualifications, you are not required to accept his or her opinion if, in your judgment, it is unsound. As with all other witnesses, it is your task to assess the credibility, the reliability and the weight to be given to the opinions of the experts. As we know, there is conflict between the opinion of some of the experts in this case, for example, as between Dr. Able and Dr. Brody regarding the plaintiff’s injuries and as between Dr. Cody and Dr. Dolittle regarding the plaintiff’s injuries. You must resolve this conflict the best you can. You should find in favour of the expert witness whose evidence you believe is entitled to the greater weight.
[34] As you will have observed, an expert witness prepares a report and these reports are exchanged among the parties before the trial. In this way, the parties know the opinion of the expert and the basis for it. In accordance with the law that applies when an expert witness testifies, the reports themselves were not filed as exhibits and instead you heard the opinions of the expert witnesses in court.
[35] In considering the evidence of the expert witnesses you should also consider what information the expert had that he or she used to form their opinion or whether the expert witness did not have some information that you believe would have been of importance to that witness in coming to his or her opinion. Furthermore, you should consider what facts an expert witness relied upon in forming his or her opinion. If the expert witness assumed certain facts to be true that you find have not been established by the evidence, you should determine the effect of that upon the value of the opinion. You may reject in whole or in part an expert opinion if you find the facts the expert relied upon, which formed the basis for his or her opinion, are different from those you have found.
SUMMARY OF PART I
[36] These then are the general legal principles that apply to every civil jury trial. I wish now to turn to the second part of my instructions where I will deal with an overview of the facts related to the damages issues and the legal principles that apply.
PART II – LIABILITY
CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF
Definition Of Negligence
[37] I must first give you the legal definition of “negligence”. Negligence is the doing of something, which a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do, under circumstances similar to those shown by the evidence. Negligence is relative to the circumstances. The standard of care is measured by the conduct of the average person. The law does not define what a reasonably careful person would do in those circumstances. That is for you to decide. You will note that the person whose conduct we set up as a standard is not the extraordinarily conscientious individual, nor the exceptionally skilled one, but a person of reasonable and ordinary prudence.
[38] Again you must decide what a reasonably prudent person would or would not do in the circumstances described in the evidence. This gives you the standard of care required by the law. Then you ask the question, “Did the conduct of the parties involved in this action meet that standard?” If the answer is “no”, then there is negligence. If the answer is “yes”, there is no negligence. Questions 1 to 4 on both set of jury questions relate to whether the plaintiffs or the defendants negligence contributed to the accident.
Standard of Care Imposed On the Driver of a Motor Vehicle
[39] In the light of that definition of negligence, which I just gave you, what is the standard of care imposed on the driver of a motor vehicle? An operator of a motor vehicle must exercise at all times the same manner of caution as might be expected in like circumstances of a reasonably prudent driver. A driver must take proper precautions to guard against such risks as might reasonably be anticipated to arise from time to time as he or she proceeds along the road. This degree of care, and nothing more, is required of the driver. Remember that a driver is not asked to maintain a standard of perfection or to take extravagant precautions.
[40] The mere fact that an accident has happened and damage has been sustained does not permit you to draw an inference that the accident was caused by somebody’s negligence. Negligence must be proved by the person on whom rests the burden of proof; in this case the plaintiffs must prove on a balance of probabilities that the defendant’s negligence caused or or contributed to the accident.
[41] Members of the jury, if you determine there is any negligence on the part of either the plaintiff, the defendant or both, by failing to use reasonable care and take proper precautions for his/her own safety, you will then apportion such liability as between the plaintiff and the defendant as per your findings and in accordance with the juror questions.
[42] In coming to this conclusion you will need to carefully consider and come to a determination as to how this accident occurred. You have heard a lot of evidence about this and several different version of what happened on January 1, 1900. I will provide a brief summary of the evidence of each of those accounts.
[43] Plaintiff passenger told us that on January 1, 1900 she and her husband were stopped at a red light in their Dodge Grand Caravan van. They were returning from a late evening trip to Shopper’s Drug Mart. She and her husband were hit by the defendant’s car on the right front fender.
[44] Plaintiff passenger did not see the defendant’s vehicle prior to impact. Her evidence was that she was leaning forward looking down into the Shopper’s Drug Mart bag for some snacks she had bought. She agreed that the detail about buying snacks was not something she had told anyone prior to the trial. As a result of the impact from the accident, plaintiff passenger’s body was thrown forward and her head hit the dashboard. After impact, plaintiff passenger recalled looking up and seeing the defendants vehicle backing up to leave. The ambulance call report (Exhibit 8) and the Emergency Trial Record (Exhibit 9) indicate that the plaintiff’s car was hit at low speed and that there was minor damage. The Emergency Nursing Assessment notes (Exhibit 10) describe the damage as a small crunch to the right front of the car. Plaintiff passenger does not recall telling anyone those details. Plaintiff passenger told Dr. Able that the van was able to be driven to a nearby gas station for towing.
[45] Plaintiff driver told us that on the evening of January 1, 1900 he and his wife had gone to a Shopper’s Drug Mart in Orillia. He was wearing his seatbelt. He and his wife were stopped at a red light at the exit of the parking lot. The left turn signal was on. Plaintiff driver did not see the defendant’s vehicle until it was crossing through the intersection. His evidence was that the defendant’s vehicle drove through the red light and crashed into them. He did not observe that the defendant’s vehicle had its turn signal on so he assumed it was driving straight through.
[46] Plaintiff driver testified that he and wife were effectively hit head on. Plaintiff driver was thrown forward as a result of the impact and his knee hit the dashboard. His head hit the driver’s side window and his glasses broke. His evidence was that the front of the defendant’s vehicle hit the right front centre of his van. His airbag did not deploy. After the accident he observed the defendant’s vehicle reverse and drive back up the street and away from the scene of the accident. Plaintiff driver was shown an invoice and agreed that the repair cost for his van was $4,365. He observed glass, car parts and debris on the road from both cars following the accident.
[47] Plaintiffs’ counsel read in excerpts from the transcript of the discovery of defendant’s passenger, Eunice. As I mentioned at the time of the read-ins, Eunice was not available to testify at the trial and as such, the read ins are to be considered her evidence for the purpose of the plaintiffs’ case.
[48] Eunice gave evidence that on January 1, 1900 she and defendant had dinner together. They had met while working together and were friends. On that evening they each drank two rye and cokes over about two hours. They planned to go out later in the evening and stopped at the Shopper’s Drug Mart on Coldwater Street in Orillia on the way.
[49] They were in defendant’s Honda and defendant was driving. At the intersection of the entrance to Shopper’s the defendant was stopped behind a truck in the left hand lane. Once the light turned green, and after the truck ahead turned left, defendant started to drive through the intersection. She was not driving fast as she had just started from a complete stop. Eunice saw a van coming through the intersection. The van did not have any turn signal on. The van started to turn a bit and suddenly the impact occurred. The van hit the passenger side front of defendant’s vehicle with a fairly strong impact.
[50] After the impact defendant backed up quickly and started to drive along West Street. Eunice was in shock and she assumed defendant was too. Eunice suggested that defendant should pull over. Eunice had her cell phone with her and assumed that defendant did as well. Defendant drove to an apartment complex on West Street where they asked a mutual friend, Mr. Gatsby, if they could use his phonebook. Before Mr. Gatsby could bring out the phonebook, the police arrived.
[51] Eunice was shown a copy of the diagram on the police accident report. She did not agree with the diagram and said that defendant was driving straight ahead and the van was making a left turn.
[52] Eunice was shown photographs of the damage to the defendant’s vehicle. She agreed that damage was to the right front of the vehicle.
[53] Eunice also gave a statement on March 1, 1900. In that statement she said that the van did not have its left turn signal on and that it turned unexpectedly.
[54] Defence counsel read in part of Eunice’ statement that she gave on March 1, 1990. This statement is to be considered part of the defence case. Eunice stated that she was with defendant on January 1, 1900. At approximatley 10:30 p.m. defendant drove her to the Shopper’s Drug Mart at Coldwater Road and Front Street to pick up a prescription. She remember seeing a truck in front of them when driving east on Coldwater Road. As they approached the intersection defendant slowed down as the light was red. When the light turned green the truck turned left and they headed straight towards the plaza. Eunice could see a van that was a bit into the intersection with no turn signal on. When they were about half way into the intersection, the van began to turn unexpectedly. Eunice cannot remember where the accident occurred in the intersection. She stated that she and defendant were on their side of the road going through the intersection.
[55] Plaintiffs’counsel read in excerpts from the transcript of the Defendant. This is to be considered defendant’s evidence just as if she gave it in court. This evidence also forms part of the plaintiffs’ case.
[56] Defendant did not recall having dinner or anything to eat with her friend Eunice on the evening of January 1, 1900 but she did recall they had two drinks of rye and coke before they left for Shopper’s to be followed by an evening out together. She did not recall if she had her cell phone with her but she does not carry her cell phone with her very often.
[57] Defendant described driving her father’s car east on Coldwater Street on January 1, 1900 around 10:30 at night. The roads were dry and the weather was clear. She was familiar with her father’s car as she drove it regularly and she was familiar with the intersection of Coldwater and Front. Defendant continued along the downward slope of Coldwater Street towards the plaza and stopped in the left lane behind a truck that was turning left at the Shopper’s parking lot entrance. The truck did not obscure her view of the traffic lights. After the truck turned, she proceeded straight into the intersection. When she was halfway into the intersection she saw the van coming towards her. The van turned left and struck her vehicle on the front driver’s side. Defendant did not believe she was travelling very fast as she had just started up from being stopped behind the truck and was likely only in second gear. She also slowed down somewhat when she saw the van. She could not recall if the van was moving or stopped. Upon impact, defendant hit her head on the steering wheel or the windshield. She cannot recall which.
[58] Defendant did not agree with Sargeant Ivanov’s diagram of the accident on Exhibit 46. She did not agree with the suggestion that her vehicle was turning left or veering into the path of the van. Her evidence was she never left the eastbound lane.
[59] After impact, defendant believed her vehicle came to a complete stop. She has no memory of what happened after impact. Her next memory is driving up Peter Street to West Street towards an apartment complex which was a kilometre or two from where the accident occurred. A mutual friend, Tim Gatsby lived there and she wanted to use his phone. She could not recall initially why she left the scene of the accident but denied it was because she had been drinking.
[60] After the accident defendant was given a roadside screening test to determine if she had alcohol in her blood. She blew an amber warning which resulted in her receiving a 12 hour driver’s license suspension.
[61] Defendant testified tht she knew Eunice at the time of the accident, they worked together as bartenders at a restaurant. On January 1, 1900, she and Eunice spent time together at Eunice’ home, but she cannot remember if she ate dinner there. During that afternoon and evening they consumed two regular sized rye and cokes. Defendant could not recall who poured the drinks but she thought it was more likely Eunice since they were at her home. She conceded that she has no idea about the proportion of rye and coke in the drinks. Defendant and Eunice continued to socialize for several years after the accident. However, defendant and Eunice are no longer friends.
[62] Around 10:30 p.m. that evening they left Eunice’ home to pick up a prescription for her at Shopper’s Drug Mart. Defendant was driving her father’s Honda Civic which she had permission to drive. She recalled it was a clear, dry summer’s evening. She was following a pickup truck going east on Coldwater Street down the hill towards the A & P plaza where the Shopper’s Drug Mart was located. She stopped behind the pick up truck at a red light. Defendant agreed that the emergency and hospital records do not indicate that she mentioned following any truck in her report to hospital personnel about what happened.
[63] When the light turned green the truck ahead of defendant turned left. She started to proceed through the intersection and saw the plaintiffs’ vehicle attempting to make a left turn in front of her. She has no memory of the impact or where in the intersection it occurred. She cannot recall if she slowed down or tried to brake. She cannot recall if the plaintiffs’ vehicle was stopped or moving when the impact occurred. Defendant agreed that it was serious accident and that her car suffered a significant crush to the right side.
[64] In cross-examination defendant agreed that she told the police that she rear-ended the plaintiffs’ vehicle and left the scene of the accident in a panic. She also told the police she did not remember what happened. She was also asked about the notation in the Accident Report which says that she was making an improper turn. She testified that was not her intention.
[65] Defendant’s next memory after the accident is arriving at a townhouse complex less than a kilometre away from the scene of the accident where her friend Tim Gatsby lived. She testified it was her decision to drive away but agreed it was possible that Eunice told her to pull over. Upon arriving at the townhouse complex, defendant was in the process of asking for Mr. Gatsby’s phone book so she could call the police when the police arrived. Defendant was asked why she needed a phonebook; why not call 911? Defendant testified that she did not think it was really an emergency. She could not remember if she had her cell phone with her that evening but did not disagree that she had previously testified that she did have it with her.
[66] She told the officer she knew she must have been in an accident but she did not remember much else. Defendant testified that her car was a write off and the damage estimate was about $7900.
[67] Defendant was asked if she drove away from the scene of the accident because she had been drinking. She denied that was the case and told the court that she had not had enough to drink for it to be a concern to her. She testified that she was not impaired.
[68] Defendant was asked to breathe into a roadside screening device by police that evening and blew a warning. Her driver’s license was suspended for 12 hours as per the law. She did not recall doing a breathalyzer test at the police station although she did not deny saying that when she was examined for discovery on October 4, 1902. At her discovery, Defendant admitted that she was given a breathalyser at the police station and that she “passed” and received a 12 hour suspension. Members of the jury, I suggest that there is some confusion in Defendant’s evidence on this point and that one cannot “pass” a breathalyser test. The more likely scenario is that she “passed” the roadside screening test and that she has confused a roadside screening test with a breathalyser test. If she had truly been given a breathalyser test she would have failed the roadside screening test.
[69] Defendant returned to Eunice’ house and was taken to the hospital the next day (January 2, 1900). She was not released until the next day.
[70] You also heard evidence from Staff Sargeant Ivanov. He has been with the Ontario Provincial Police for over 30 years and was the investigating officer for the January 1, 1900 accident. He did not witness the accident but prepared the accident report and diagram based on information from the drivers and passengers involved.
[71] Sargeant Ivanov testified that the defendant’s vehicle struck the plaintiffs’ vehicle head on. His report indicated that the plaintiffs’ vehicle’s speed was 0 and that of the defendant’s vehicle was unknown. He noted that there was severe damage to the defendant’s vehicle was on the right front. He noted moderate damage to the right front of the plaintiff’s vehicle and that plaintiff passenger was not wearing a seatbelt. The airbags did not deploy in either vehicle.
[72] The officer noted that there was debris in the intersection. He concluded that the accident took place within the intersection and agreed that would suggest that the plaintiffs’ vehicle was no longer at the red light when impact occurred.
[73] Sargeant Ivanov took signed statements from both plaintiffs. Plaintiff driver told Sargeant Ivanov that he was stopped at the red light waiting to make a left turn when a car came screaming through the light straight at his van. It looked like the other car was out of control. He remembered that both the driver and passenger were female. After the accident, the driver put her car in reverse, squealed backwards up the street for about a block, spun around and then took off northbound on a side street.
[74] Plaintiff passenger told the Sargeant that as she and her husband were coming out of the Shopper’s parking lot, she was looking down about to put her seat belt on. She heard a horrible sound and they were hit. She looked up and saw the two women in the other car. She heard their tires squealing, saw the car reverse and then take off.
[75] Sargeant Ivanov reported that Plaintiff passenger was transported to hospital by ambulance with level 2 injuries. This means injuries that are on a scale between minor and major. More than cuts and bruises, but less than serious trauma.
[76] Dr. Spock was called as a witness by the plaintiffs. He was qualified to give expert evidence in the area of accident reconstruction. Dr. Spock signed an acknowledgement, filed as Exhibit 50, with respect to his duty to the court to be impartial.
[77] Dr. Spock is an engineer and has a Masters of Science in transportation safety and a Ph.D. in the same area from the University of Waterloo. He is currently a consulting engineer with Acme Forensic Engineering Inc.
[78] Dr. Spock prepared a report dated March 1, 1903. In preparing his report Dr. Spock reviewed various documents including the accident report, police notes, plaintiff driver’s statement to the police, the transcripts for Discovery of the plaintiffs, defendant and Eunice along with various photos of the vehicles and the accident intersection.
[79] Dr. Spock analysed the accident from three different perspectives; what he called the plaintiffs’ scenario, the police scenario and the defendant’s scenario. For the plaintiffs’ scenario he based this on the plaintiff driver’s evidence that his van was stopped at the light to exit the Shopper’s parking lot. His vehicle was completely stopped when he was struck by the out of control defendant vehicle. His opinion was that the force of that impact would be consistent with the damage he observed.
[80] In the police scenario, he relied on the diagram in the accident report which shows both vehicles turning left. Dr. Spock opined that for the accident to have occurred in this manner, one or both vehicles would have to have travelled a longer distance into the path of the other. He mentioned as well that although the police report stated that the plaintiffs’ vehicle remained stationary, the diagram shows both vehicles moving.
[81] In the defendant scenario, the defendant vehicle goes straight through the intersection and the van turns into it. Dr. Spock opined that this scenario is not consistent with the damage he observed in the photographs and not a likely scenario.
[82] Dr. Spock testified that he did not go to the scene of the accident. He looked at the intersection on Google maps in 1903 which he conceded may not have looked the same in 1900. He also agreed that it would have been helpful to inspect the vehicle damage, however, that is not always possible and he has not been able to do this for the last seven cases in which he has testified as an expert.
[83] Dr.Spock conceded that he could not say where the point of impact occurred and that out of the 17 available photos of vehicle damage he was only able to rely on four of them for his report. As well, Dr. Spock testified about some errors in his report which he noticed in May 1903. He wrote a letter to plaintiffs’ counsel in May, 1903 to correct these errors. The errors included referring to the plaintiffs van as entering the Shopper’s parking lot instead of exiting, the time of the collision as daylight instead of dark, and that the damage to the van would have been more to the front left when it should have read front right. Dr. Spock insisted that these were honest mistakes that he corrected and that they did not affect his opinion.
[84] Members of the jury, you have a difficult task. As you know, there are several different versions of what occurred on the evening of January 1, 1900. You will have to decide which version you accept as what actually happened. Once you have reviewed the evidence, your own notes and recollections of the evidence you may find that the negligence of Defendant and the negligence of the plaintiff driver contributed equally to plaintiff’s injuries, or you may find that you cannot decide how to divide the blame. In that case you would find them each 50% to blame. Liability will then be divided equally between them. On the other hand, you may find Defendant, say, 75% to blame and plaintiff 25% to blame, or, conversely, you may find plaintiff, say, 60% to blame and Defendant 40% to blame, or any other combination that adds up to 100%. You may also find Defendant or plaintiff 100% to blame.
[85] In coming to your conclusion you may wish to consider Defendant’s actions in driving away from the scene of the accident and her consumption of alcohol. You may also wish to consider that plaintiff’s version of the accident is different from that of Eunice and Defendant. While Sargeant Ivanov had a different version of the accident as well, the diagram he drew was never put to him and therefore is not in evidence. Finally, while Dr. Spock preferred the plaintiffs version of the accident (his “Scenario 1”), he agreed in cross-examination that if the debris trail is as described by Sargeant Ivanov, his Scenario 1 is no longer accurate.. It is up to you to conclude what happened and divide the responsibility accordingly. Once you have done that you will have answered a number of the questions on the verdict form.
CONTRIBUTORY NEGLIGENCE – PLAINTIFF PASSENGER
[86] The defence maintains that the plaintiff passenger contributed to her own injuries by not wearing a seatbelt and should therefore bear part of the responsibility for damages.
[87] Please listen carefully while I read to you portions of the Highway Traffic Act applicable to the wearing of seat belts.
Seat belts
Use of seat belt assembly by driver
(2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5). 1906, c. 25, s. 1.
Use of seat belt assembly by passenger
(3) Every person who is at least 16 years old and is a passenger in a motor vehicle on a highway shall,
(a) occupy a seating position for which a seat belt assembly has been provided; and
(b) wear the complete seat belt assembly as required by subsection (5). 1906, c. 25, s. 1.
How to wear seat belt assembly
(5) A seat belt assembly shall be worn so that,
(a) the pelvic restraint is worn firmly against the body and across the hips;
(b) the torso restraint, if there is one, is worn closely against the body and over the shoulder and across the chest;
(c) the pelvic restraint, and the torso restraint, if there is one, are securely fastened; and
(d) no more than one person is wearing the seat belt assembly at any one time. 1906, c. 25, s. 1.
Exception
(6) Subsections (2) and (3) do not apply to a person,
(a) who is driving a motor vehicle in reverse;
(b) who holds a certificate signed by a legally qualified medical practitioner certifying that the person is,
(i) for the period stated in the certificate, unable for medical reasons to wear a seat belt assembly, or
(ii) because of the person’s size, build or other physical characteristic, unable to wear a seat belt assembly; or
(c) who is actually engaged in work which requires him or her to alight from and re-enter the motor vehicle at frequent intervals and the motor vehicle does not travel at a speed exceeding 40 kilometres per hour. 1906, c. 25, s. 1.
Same
(7) Clause (4) (a) does not apply in respect of a passenger if the passenger holds a certificate signed by a legally qualified medical practitioner certifying that the passenger is,
(a) for the period stated in the certificate, unable for medical reasons to wear a seat belt assembly; or
(b) because of the person’s size, build or other physical characteristic, unable to wear a seat belt assembly. 1906, c. 25, s. 1.
[88] In passing this section of the Highway Traffic Act, the Legislature has defined the standard of care to be observed by a driver or a passenger insofar as wearing a seat belt is concerned.
[89] In this situation, the onus of proof is on the Defendant. That is, in order to establish contributory negligence on the part of the plaintiff passenger, the Defendant must satisfy you on a balance of probabilities that plaintiff passenger was not wearing a seat belt or was wearing a seat belt that was not properly adjusted and securely fastened (see, s. 106(3)) and that if she had worn a seat belt, that plaintiff passenger’s injuries would have been prevented or would have been less severe. The plaintiffs’ need not prove that plaintiff passenger was wearing a seatbelt, the defendant must prove that it was more than likely she was not.
[90] In coming to your conclusion about whether Defendant has met their burden of proof you may wish to consider what evidence you heard about the seatbelt issue.
[91] In this case there was contradictory evidence about whether plaintiff passenger was wearing a seatbelt. In her examination in chief she told the court that she was. In her statutory declaration sworn January 16, 1904 (Exhibit 15), she swore that she was a “seat-belted” passenger at the time of the accident. She told Dr. Smith in October, 1903 that she was wearing a seat belt. A number of specialists who examined plaintiff passenger post-accident were told by her that she was wearing a seat belt. However, you may remember that plaintiff passenger cannot recall telling the specialists specifically about wearing her seatbelt.
[92] You may also wish to consider the ambulance call report (Exhibit 8) from January 1, 1900. That report indicates that plaintiff passenger was not wearing a seatbelt. Plaintiff passenger testified that she was the only person in the ambulance other than the emergency personnel. She could not recall saying anything to them either in the ambulance or when they arrived at the hospital. She did not know where the information came from that she was not wearing a seatbelt. She maintained that this information was inaccurate notwithstanding that she confirmed that the rest of the information in the call report was likely accurate and that some of the information, such as a description of the areas in which she was experiencing pain could not have been obtained from anyone but her.
[93] You will recall that paramedic Mr. Technician gave evidence. He was the paramedic in charge of plaintiff passenger’s care that evening. He was referred to exhibit 8 and asked to explain the entries that were in his writing. Mr. Technician had no independent recollection of this accident or plaintiff passenger.
[94] Mr. Technician testified that the form indicated plaintiff passenger was not wearing a seatbelt. Mr. Technician agreed that some of the information in the call report form is gathered from third parties including witnesses and police as well as the patient him/herself. However, you may recall that Mr. Technician testified that when he gathers information directly from a patient he adds the words “patient states.” However, the words “patient states” appear nowhere in the form.
[95] Similarly the Emergency Triage Record (Exhibit 9), the Emergency Nursing Assessment Notes (Exhibit 10) and the Emergency Record (Exhibit 11) are all documents relating to health care professionals who examined plaintiff passenger more or less thoroughly after she arrived at the hospital on January 1, 1900. Each of these documents states that plaintiff passenger was not wearing a seatbelt. Plaintiff passenger denied telling anyone she was not wearing a seatbelt but could not provide any explanation as to where that information came from. Her evidence was that recalls very little or nothing of the time she was in the hospital that evening other than lying on the board and then later being discharged.
[96] You may recall that the evidence in Dr. Able’s report was somewhat contradictory with respect to what plaintiff passenger told him about her seatbelt. At the beginning of the report, where summarizing what plaintiff passenger told him about the accident, Dr. Able stated that plaintiff passenger told him that she was in the process of attaching her seatbelt when the accident occurred. Later in the report he stated that plaintiff passenger told him that her seatbelt was snapped into place at the time of impact.
[97] Dr. Able agreed that he was given a report from psychologist Dr. OZ which was prepared in 2008. Since this is not his area of specialty, Dr. Able testified that he likely would have “flipped through” Dr. OZ’s report. If he had noticed that Dr. OZ reported (from plaintiff passenger) that her seatbelt was buckled at the time of the accident he would likely have noted this in his own report. He was also referred to Dr. Curie’s January 1904 report in which plaintiff passenger reported to him that she was wearing a seatbelt. Again, Dr. Able agreed that this report formed part of the documents he received from the defence and he would likely have mentioned this information about the seatbelt had he noticed it.
[98] With respect to the hospital and ambulance forms/notes which stated that plaintiff passenger was not wearing a seatbelt, Dr. Able told the court that such forms are filled out by hard working health professionals who take their responsibilities very seriously. They understand that what they write on such forms may be reviewed at some later point and fill them out accordingly. However, Dr. Able agreed in cross-examination that such reports may contain information that is mis-transcribed or simply copied from another form.
[99] Based on Dr. Able’s significant experience dealing with trauma at Sunnybrook he told the court that wearing a seatbelt saves lives. In high speed collisions, people who are not wearing seatbelts can be ejected from their cars, suffer head injuries and sometimes die. Fortunately, most people do wear seatbelts thereby generally reducing injuries to fractures, lacerations and soft tissue injuries. One of the other doctors also confirmed that seatbelts reduce injury severity from accidents.
[100] You may recall that plaintiff driver testified that he did not see his wife wearing a seatbelt. As well, the accident report prepare by Staff Sargeant Ivanov also noted that plaintiff passenger was not wearing a seatbelt. Remember, however, that Sargeant Ivanov did not witness this accident, and he prepared most of the accident report based on information he received from third parties.
[101] You may wish to consider that Dr. House’s notes reflect that plaintiff passenger told her that she was leaning over to fasten her seatbelt when the impact occurred. However, Dr. House testified she had a conversation with plaintiff passenger on November 12, 1915. During the course of that conversation, plaintiff passenger told her that her seatbelt was already on and that she had only loosened it to reach for something. Dr. House told the court that although her notes remain unchanged, she changed her evidence at trial to accord with what plaintiff passenger told her because it lined up more with what the other specialists said in their reports. She agreed that she did not know if those reports were accurate regarding whether or not plaintiff passenger had her seatbelt on and she also agreed she had never seen the ambulance call report (exhibit 8) or any of the other hospital reports from the evening of January 1, 1900 (exhibits 9, 10 and 11). Dr. House was shown exhibits 8, 9, 10 and 11 and agreed they contained references that Patient passenger was not wearing her seatbeld (or not yet wearing her seatbelt). She preferred to retain the view that plaintiff passenger was wearing her seatbelt because that is what was in the specialists’ reports. She agreed that the information in the specialists’ reports would have come from plaintiff passenger.
[102] The plaintiffs’ shoulder expert, Dr. Brody, testified that plaintiff passenger told him that she had just put her seat belt on and was adjusting it at the time of impact.
[103] Use the list of factors I gave to you earlier to determine whether you believe plaintiff passenger was wearing a seatbelt or not. I would comment that there is a concern as to how the information came to ambulance personnel, emergency nurses and emergency doctor if not through plaintiff passenger. You may also wish to consider that she confirmed most of entries in those those documents but refused to accept the entries related to her not wearing a seatbelt. Plaintiff passenger said she had loosened the shoulder restraint of her belt in order to lean over and look for snacks in her grocery bag. These were slightly different facts from those she originally testified to regarding the seatbelt.
[104] Do not, however, let those be your only considerations. Plaintiff passenger gave evidence under oath in this courtroom and in the context of a statutory declaration that she was wearing a seatbelt. Also, plaintiff passenger suffered an injury to her abdomen which you heard about and which required surgery. Although her evidence about the particulars of that surgery was somewhat vague, the fact that she suffered the injury might suggest that she was wearing her lapbelt which pushed into her abdomen on impact from the accident and caused an injury. Recall, however, that Dr. Brody reported that the surgery on her abdomen revealed endemetriosis which would have nothing to do with a seat belt. As well, it is to be expected that Patient passenger was distressed when taken in the ambulance and to the hospital strapped to a board. She was in pain and as the hospital notes confirm she did not like being restrained. You may decide that her distress and the claustrophobia she described had an impact on her memory. Finally, as you all know, plaintiff passenger is testifying to matters which occurred over 12 years ago. Some leeway must given in terms of any lack of perfect recollection.
[105] Members of the jury, you must review the evidence and facts as you find them and determine if plaintiff passenger was wearing a seatbelt. The law requires everyone to wear a seatbelt while a driver or passenger in a motor vehicle.While seat belts are generally effective at reducing injuries, it does not necessarily follow that wearing the available seat belt would have helped plaintiff passenger in this particular case. Before you can find that plaintiff passenger contributed to her own injury, the defence must satisfy you on a balance of probabilities that wearing the seatbelt available in the vehicle would have limited or avoided the injuries to plaintiff passsenger in this particular accident. If you are so satisfied, then you would answer “Yes” to that question on the verdict sheet.
[106] If, on the other hand, you conclude, on all the evidence, that plaintiff passenger would probably have suffered the same injuries, whether wearing a seat belt or not, or if the evidence on this issue is equally balanced, then your answer to then you would answer “No” to that question on the verdict sheet.
[107] Where contributory negligence is found for not wearing a seat belt, the percentage of reduction for failure to wear the seat belt must fall within a range from 0% to 25%. The upper limit of the range, that is 25%, is available only in the case where you are satisfied that substantially all the damages could have been prevented by wearing a seat belt. Where the evidence does not establish that all the injuries would have been effectively prevented, the percentage should be less than 25%. In most cases, the range falls in the lower end, that is between 5% and 15%.
[108] Members of the jury, if you find plaintiff passenger was contributorily negligent in failing to wearher seat belt, you should assess her responsibility for her own injuries according to the instructions I have just given you and answer on the verdict sheet accordingly.
PART III – DAMAGES
(a) General
[109] In this case there is an issue as to what injuries plaintiffs may have suffered and how that has affected their life since the date of the accident both emotionally and financially. I will be reviewing the evidence concerning those injuries.
[110] There is also the issue of damages. Damages simply means monetary or financial compensation for the loss caused by the wrongful conduct of another. In assessing damages you should, as nearly as possible, award that sum which will put the plaintiffs in the same position that they would have been if they had not sustained the injuries. However, perfect compensation or exact mathematical compensation is hardly possible. You cannot put an injured party back again exactly into his or her original position. You must bring your reasonable common sense to bear so that your award will be fair to all parties.
[111] You should remember that this is the only occasion on which compensation can be given. Under our law the plaintiffs must sue in this one action for all his or her loss, past, present and future. No subsequent action may be brought either to increase or decrease the award made by you in the event the loss turns out to be greater or less than expected at the time of the trial. The amount awarded by you should be reasonable, and not extravagant or oppressive. On the other hand, it should not be inadequate. Your aim should be to reach a fair balance, neither too much nor too little.
[112] On the question of damages you need not be unanimous. If you can arrive at an answer in which five of you agree, then that is sufficient to enable your foreperson to put the answer in. It is not necessary that the same five of you agree on each question. A different five can find on a different question.
(b) Onus of Proof on Plaintiff
[113] With respect to all of the claims for damages except for the claim relating to plaintiffs future loss of income, the onus is upon them to prove their damages on the balance of probabilities. They must prove the nature, extent, duration and consequences of their injuries. An award of damages must not be based upon speculation, guess or conjecture. Furthermore sympathy or prejudice for or against the plaintiffs or for or against the defendant must not affect your verdict. Those elements are not a proper basis for determining damages.
[114] General damages are intended to compensate plaintiffs for their non financial loss. Plaintiffs’ financial loss for loss of income past and future are dealt with under the other headings which I will come to. In awarding general damages, you are compensating plaintiffs for the consequences which flow naturally from the injuries they sustained, such as pain and suffering, and their inability to enjoy the normal pleasures of life.
[115] It is your obligation as sensible people to say what amount is fair, reasonable and proper compensation under that heading. In that regard you will arrive at a lump sum figure in dollars having regard to the nature and extent of the injuries that plaintiffs sustained, the pain and suffering they have undergone, the pain and suffering reasonably certain to be experienced in the future as a result of their injuries, and the effect of the injury on their ability to enjoy the normal pleasures of life.
[116] Let us now look at the various matters that may be considered by you in deciding on your award for general damages.
[117] In considering general damages you will want to consider the nature of plaintiffs injuries. It is important that you understand that when I give you a summary of the evidence that does not mean that it should be taken as a fact. This is my view of the evidence. The lawyers have emphasized things that may be different from my review. Do not be persuaded that just because I as the judge included some particular evidence in my summary that that makes it more important. I provide the summary as a convenience to you and to assist you but again, not to persuade you. That is the job of the lawyers.
Plaintiff Passenger – Accident Two and Her Injuries
[118] As a result of the accident which occurred on January 1, 1900, plaintiff passenger testified that she was thrown forward and her head hit the dashboard. Her airbag did not deploy. She also injured her abdominal area. We heard from plaintiff passenger that this was a sensitive area because she has a scar from three Caesarean Sections. After the accident, emergency personnel attended the scene who strapped plaintiff passenger to a board, put her in a neck brace and took her to the hospital in Orillia around 11:15 p.m.. She felt anxious and panicked about the fact that she could not move. She and plaintiff driver were released from the hospital around 1:00 a.m. on the undertaking plaintiff driver would return the next day for a CT scan.
[119] Plaintiff passenger recalls telling someone that she hit her head on the dashboard but cannot recall for sure if she told the ambulance attendants this. Although the ambulance call report indicates that plaintiff passenger was found conscious with no visible distress, she cannot recall telling the ambulance attendants that she was in a previous accident on September 30, 1899 and does not recall telling them that she had back and neck pain notwithstanding that all of this information is in the ambulance call report and she was the only patient in the ambulance. She agreed as well that the ambulance call report contains no reference to any pain in her left shoulder.
[120] Mr. Chris Technician, a paramedic who came to the scene and who wrote the ambulance call report was called as a witness by the defence. Mr. Technician noted the severity of plaintiff passenger’s condition as a three on the CTAS scale of 1 to 5. This meant it was urgent but not life threatening or rescussitative. She was oriented to person, time and place with no visible signs of distress. She complained of increased neck and back pain from her normal neck and back pain. She also complained of pain in her forehead which was tender on touching.
[121] Mr. Technician further noted that plaintiff passenger’s skin colour and temperature were normal. Her breathing, lungs, abdomen and vital signs were normal. She scored a 15 on the Glasgow Coma Scale meaning her eyes were open, she could respond verbally and she was able to obey commands.
[122] Plaintiff passenger was also referred to the Emergency Triage Record (Exhibit 9). That report records that plaintiff passenger had neck discomfort, headache and a previous injury on the “31st.” Her relevant past medical history is recorded as “Toradol, Tylenol and Naproxen.” She does not recall telling the triage nurse this but does not dispute what was recorded on the form or that she was the only person with the nurse. She agreed that there was no reference to left shoulder pain in the form.
[123] Plaintiff passenger was referred to the Emergency Nursing Assessment notes (Exhibit 10). She does not recall any discussion with the Emergency Nurse but did not deny that the form indicated presenting complaints of spine and sharp forehead pain with a tender neck. The report also indicates that plaintiff passenger had a low grade whiplash on September 30, 1899. She had no memory of giving the nurse this information and could not say why there was no reference to a shoulder injury.
[124] Plaintiff passenger was then shown the emergency record from the attending emergency physician (Exhibit 11). She did not recall telling the doctor of her complaints of mild neck pain or cervical spine mild mid line tenderness nor does she recall having an x-ray. Plaintiff passenger told the court she was not exactly sure what cervical spine mild mid line tenderness meant. She agreed that the Emergency Record contained no reference to any shoulder pain.
[125] Upon her release from hospital plaintiff passenger was advised to consult her family doctor, Dr. House. Patient passenger saw the doctor on September 2, 1903. Although plaintiff passenger has no specific recollection of speaking with Dr. House she accepts that the doctor’s notes (Exhibit 13) would be reflective of their conversation. According to the notes, plaintiff passenger told Dr. House that she hit her head on the dashboard, that her neck and back pain felt worse, she had a numb jaw, a sore wrist, right shoulder pain and has had a headache ever since the accident. While there is a checkmark, which Dr. House testified meant “normal”, with respect to “upper left extremity,” there is no reference in the notes to left shoulder pain or complaint. There is however a reference to “SHD” which could mean shoulder. Plaintiff passenger was not sure.
[126] Plaintiff passenger was shown her statutory declaration sworn January 6, 1904 (Exhibit 15). Plaintiff passenger stated that as a result of Accident Two, she had pain in her neck, lower back, right leg, right knee and hip. She also declared that she suffered from headaches. Plaintiff passenger agreed that there was no mention of any left shoulder pain or injury in the statutory declaration.
Plaintiff Passenger’s Specific Complaints
[127] Shoulder and neck injury: Plaintiff passenger told us these injuries were present immediately following the accident. She experienced neck pain between her shoulder blades and pain in both shoulders although the pain in the left shoulder was more severe than the right. She experienced some pain from these injuries but fortunately was able to manage this pain through physiotherapy and massages. She attended some chiropractic sessions but found that the adjustments were too painful. She went back for more chiropractic treatment when she felt better able to tolerate the adjustments but generally the chiropractor did not treat her neck as that caused headaches.
Lower Back injury: As a result of the accident, plaintiff testified she sustained injury to her lower back and hips. Plaintiff passenger received massage and chiropractic treatment for these injuries and then stretching and light weights were added. The therapy went on for months and at times was very painful.
Headaches and Related Pain: As a result of her head hitting the dashboard during the accident, plaintiff passenger told us she suffered severe headaches, pain in her jaw and ears and a numb face. She continues to suffer from migraine headaches and has been prescribed Maxalt for them but that does not really help.
Patient passenger was shown a note from her family doctor, Dr. House, dated June 26, 1902. The note indicated that Patient passenger had been having headaches for almost six years prior to June 26, 1902. Those headaches started at the top of her head and went to her forehead. The pain would make her cheeks numb and make it hard for her to keep her eyes open. Patient passenger had no recollection of seeing Dr. House in June 1902 but did not dispute the contents of the note.
Abdominal Injury: As a result of the seatbelt pulling on her abdomen during the accident, the tender area in her abdomen where Patient passenger’s Caesarean scars were located was aggravated. She suffered what she called a granuloma although she did not really know what that was. She told the court that the area was sore and caused her pain if she leaned against something or wore a belt. Some years later, surgery was performed by Dr. Barnes who removed scar tissue. Patient passenger said she thought the scar was very unattractive. She took a picture of the scar which was marked as Exhibit 1.
Medications: Patient passenger was prescribed Maxalt Rapid for her migraine headaches. She was also prescribed Percocet, Toradol and Vioxx for pain. She used topical creams such as Bio freeze Gel and Rub A535 for muscle pain. When needed she also used over the counter pain medications such as Advil.
Expert Testimony
Patient passenger
Defence Expert – Dr. Terry Able
[128] In considering patient passenger’s possible injuries you will want to consider the evidence of the defence expert, Dr. Terry Able. Dr. Able was qualified to testify as an expert in orthopaedic surgery with a specialty in upper extremity pathology.
[129] Dr. Able has extensive qualifications and has been working in the trauma department at Sunnybrook hospital for 26 years. 60% of his work is trauma related and the other 40% is scheduled surgery. Over the years he has dealt with trauma from motor vehicle, motorcycle and snowmobile accidents as well as trauma from gang related violence.
[130] Dr. Able has testified in court as an expert three to four times a year for the last twelve years. He was referred to his acknowledgement of expert’s duty which he testified that he took very seriously.
[131] Dr. Able prepared one report dated July 28, 1911. This report relates solely to patient passenger. In order to produce this report Dr. Able reviewed certain documents provided to him by defence counsel. He also did his own examination of patient passenger on July 28, 1911.
[132] Patient passenger told Dr. Able that she had been involved in a prior accident on September 30, 1899. She told the doctor that she had been stopped at a red light and was struck by a vehicle which had been struck by a truck. She was driving the same van that was involved in Accident Two. She was wearing her seatbelt. The airbags did not deploy. Dr. Able’s report described this accident as a “streetcar” collision. He testified this was an error in his report that he did not catch on review. Obviously, there was no streetcar involved in the September 30, 1899 accident.
[133] Patient passenger did not go to the hospital as a result of this accident but she complained of neck and low back pain, headaches, pain in both wrists and a foot injury. Dr. House referred her for physiotherapy. Patient passenger told Dr. Able that she had severe headaches following this accident and was referred to Dr. Larry (a neurologist) for this. She reported to Dr. Able that the neck and back pain from this accident had not resolved by the time the second accident occurred.
[134] Patient passenger described the January 1, 1900 accident to Dr. Able and advised she reaching down for something at her feet and at the same time attaching her seatbelt when the impact occurred.
[135] Dr. Able reviewed the ambulance call report (exhibit 8), the emergency triage record (Exhibit 9), the emergency room assessment record (Exhibit 10) and the emergency room doctor’s record (Exhibit 11). He noted that these documents recorded that Patient passenger was not wearing a seatbelt. Dr. Able testified that he saw the reports of Dr. OZ, Dr. Smith and Dr. Tanenbaum and that those documents noted that Patient passenger was wearing a seatbelt. He testified he would have included this in his report had he noticed those entries. Recall, however, that the references to Patient passenger wearing a seatbelt in those reports were based on her reports to those various doctors.
[136] Dr. Able also reviewed Dr. House’s notes from September 3, 1903 which noted an exacerbation of previous back and neck pain from Accident One plus jaw pain, wrist pain and right shoulder pain. Dr. Able noted that the first report of left shoulder pain was in Dr. House’s records from July 2, 1909 when she presented with left shoulder and arm pain from lifting a bucket. We know, however, from Dr. Brody’s reports that Patient passenger complained of left shoulder pain when she first saw him about five months after Accident One. We also know that Dr. House’s notes from October 16, 1903 indicate a complaint of left shoulder pain and that Dr. Able did not mention this in his report.
[137] Dr. Able did not agree with the conclusions in Dr. Brody’s report of October 9, 1903. Dr. Able pointed out that Dr. Brody did the Neer and Hawkins’ test on Patient passenger in 1903 and found the tests positive for impingement. He concluded that Patient passenger had bursitis, rotator cuff tendonosis and secondary impingement on her left shoulder attributable to Accident Two. However, when Dr. Able performed the same tests on Patient passenger eight years later, they were negative. Remember that Dr. Able did not have Dr. Brody’s reports from 1904, 1906 and 1911. He agreed that he would have been able to provide a much clearer picture if he had seen Patient passenger shortly after the accident and then at intervals, as Dr. Brody had done. Dr. Brody’s reports in 1904, 1906 and 1911 make reference to Patient passenger’s left shoulder pain.
[138] Dr. Able also did not agree with Dr. Brody’s opinion that Patient passenger complained of left shoulder pain after Accident Two. The hospital and ambulance related records from the date of the accident reviewed by Dr. Able made no mention of such a complaint.
[139] Dr. Able also refers to the report of Dr. Smith dated October 1903 which did not indicate any evidence of reduced range of movement of either shoulder.
[140] Dr. Able agreed that Patient passenger told Dr. Tanenbaum (as per his January 1904 report) that her left shoulder pain was worse after Accident Two. She was given an anti-inflammatory (Vioxx) and sleeping pills for pain. Dr. Able agreed that his statement that Patient passenger had not complained of left shoulder pain prior to 1909 was therefore incorrect.
[141] Patient passenger reported to Dr. Able that her complaints as of July 1911 were neck pain with decreased motion, left shoulder pain with a pinching sensation which was intermittent and worse with damp or cold weather. There was also a complaint of ongoing left wrist pain from the first accident.
[142] Dr. Able did a physical examination of Patient passenger. He noted that her neck range of motion was 75% of normal for flexion and extension and 100% for side rotation. Her right shoulder was normal. She had some discomfort on palpation (touching) on her left shoulder but a full range of motion. However, she was more deliberate with her left shoulder movements. He noted no positive result on testing for rotator cuff impingement. Dr. Able noted that Patient passenger did not appear to embellish her subjective reporting of her pain nor did she magnify her pain.
[143] In summary, Dr. Able opined that Patient passenger suffered a whiplash associated disorder of her neck and a strain of her lower back as a result of Accident One. She had not yet recovered from Accident One when Accident Two occurred. Accident Two aggravated her pre-existing neck and lower back pain. Dr. Able testified that in his opinion there was no causal relationship between Patient passenger’s left shoulder symptoms and either of the accidents. She did not complain about left shoulder pain within the first two months after the accident and not until some six years later in relation to lifting something heavy. While she had some discomfort with her left shoulder, neither accident resulted in any significant, severe or permanent impairment of her left shoulder. She does not have any impairment that would interfere with her activities of daily living, self-care, leisure activities or employment.
Plaintiffs’ Expert – Dr. Stephen Brody
[144] Dr. Brody was called as an expert witness by the plaintiffs in relation to Patient passenger’s possible injuries. He is associate chief of orthopaedic surgery at the Rouge Valley Hospital. He was qualified as an expert in orthopaedic surgery with a specialty in shoulder injuries.
October 9, 1903 Report
[145] Dr. Brody assessed plaintiff passenger on four separate occasions. His first report is dated October 9, 1903. Patient passenger told him about the August 1903 accident and that it made her complaints from Accident One worse. When she saw Dr. Brody in 1903 she was still undergoing physiotherapy and massage therapy from the first accident. He neck and lower back pain from Accident One was only 25% improved when she saw Dr. Brody in 1903 and she still had painful headaches, a swollen toe, left wrist pain as well as jaw, teeth and ear pain.
[146] Dr. Brody was unaware that Patient passenger had a six year history of headaches prior to Accident One. He did not have Dr. House’s notes at that time. Patient passenger did not tell him this. She reported her prior medical history (other than Accident One) as normal.
[147] Dr. Brody took a history of Accident Two. Patient passenger told him that she put her hands up in front of her and her head hit the dashboard during the course of impact. This had caused left shoulder pain which was a new complaint not emanating from Accident One.
[148] Until cross-examination, Dr. Brody had never seen the ambulance call report or hospital reports marked as Exhibits 8, 9, 10 and 11. These were shown to him and he agreed that there was no reference to left shoulder pain in any of those documents.
[149] Dr. Brody was also shown Patient passenger’s application for accident benefits (exhibit 65) dated September 1903 which Dr. Brody confirmed he had been given by plaintiffs’ counsel. Dr. Brody agreed that the list of injuries on page one of that document did not reference any left shoulder pain.
[150] Dr. Brody received a copy of Dr. House’s records in May 1915. He agreed that her note from September 2, 1903 set out jaw pain, constant headaches, sore wrists, groin pain and right shoulder pain. All of her injuries from Accident One had been made worse by Accident Two according to Dr. House’s notes. There was no mention of any left shoulder pain. Dr. Brody was surprised by this.
[151] Patient passenger told Dr. Brody that pain from the August 1903 accident had created tension between her and her husband. She returned to work part time for two to three hours a day about two weeks after the accident but she had problems with headaches and sitting for long periods. The headset she was provided by her insurance company was helpful.
[152] Initially her husband had to help her with her personal care after the accident but within six weeks she was independent although she needed help with heavy housework.
[153] Dr. Brody concluded that as of October 9, 1903 Patient passenger had a Grade 1/2 whiplash, left low back pain and chronic post-traumatic headaches primarily attributable to Accident One which were made worse by Accident Two.
[154] Dr. Brody testified that he was unaware of Patient passenger’s six year prior history of headaches as set out in Dr. House’s notes until it was brought to his attention in cross-examination. Dr. Brody was given those notes in or around May 1915. Dr. Brody agreed that based on those notes, Patient passenger’s headaches pre-existed Accident One and would have been worsened by Accident One.
[155] Dr. Brody opined that the bursitis or tendonosis in Patient passenger’s left shoulder and the right low back pain was solely attributable to Accident Two. Her wrist and jaw pain were solely attributable to Accident Two.
[156] Dr. Brody recommended physiotherapy and cortisone shots if the shoulder pain did not resolve. Dr. Brody was not aware if Patient passenger pursued physiotherapy at that time. He was aware that she has never had a cortisone shot for her left shoulder pain as recommended.
[157] Patient passenger’s limitations from these injuries included an inability to sit for long periods, lifting heavy items and would need assistance for housework. However, she did not require attendant care for her personal care.
April 1904 Report
[158] Dr. Brody saw Patient passenger again on April 29, 1904. By that date Patient passenger still had workplace limitations in that she could not lift heavy parts. She was seeing Dr. Larry for her headaches and Dr. Kodesh for her neck and low back pain. She was pursuing a gym program but was no longer doing any physiotherapy or receiving any chiropractic treatments.
[159] By this point Patient passenger’s main complaint was headaches and neck pain. Her low back pain was now 50% better and wrist pain had almost completely resolved. She continued to have shoulder pain. She was taking Advil and Vioxx as needed and needed help with heavy housework.
[160] Dr.Brody examined Patient passenger and found a 10-15 degree restriction on the left side of her neck. Her shoulder range of motion was full as was her shoulder strength. She left shoulder had less pain than in 1903 but she still had significant impingement. With respect to her lower back from Accident One, she was able to bend forward and touch her toes and extend within normal limits.
[161] Dr. Brody’s conclusions in 1904 were that Patient passenger had a Grade1/2 Whiplash, chronic post-traumatic headaches and low back pain primarily attributable to Accident One and worsened by Accident Two, pelvic pain attributable to Accident Two and left shoulder rotator cuff tendinosis, bursitis and impingement attributable to Accident Two. Dr. Brody again recommended a steroid injection for Patient passenger’s shoulder.
[162] Given that Patient passenger was almost one year post Accident Two at this point, Dr. Brody opined that Patient passenger’s injuries from Accident Two were permanent and limited her ability to perform heavy lifting and repetitive cleaning tasks. Dr. Brody testified that “heavy” meant 50 pounds but it is hard to qualify. Often, it meant only 20 pounds.
The January 1906 Report
[163] Patient passenger was seen for assessment by Dr. Brody again in January 1906. Dr. Brody testified in examination in chief that two years and five months after Accident Two, Patient passenger had residual chronic lower back attributable to Accident One and worsened by Accident Two, left shoulder rotator cuff tendonosis and bursitis with impingement which he attributed to Accident Two and neck pain (Whiplash) attributable to Accident One
[164] You may have noted that in cross-examation, Dr. Brody testified that Patient passenger’s whiplash and lower back injury were attributable to Accident One. He did not qualify this by saying those injuries were “primarily attributable” to Accident One.
[165] Dr. Brody opined that, given the time elapsed since Accident Two, Patient passenger had reached her maximum recovery.
[166] Dr. Brody examined Patient passenger’s left shoulder and found that her abduction rotation had decreased to 20-25 degrees which was a concern. With respect to her lower back, Patient passenger was able to flex to the floor with mild pain
[167] By this point Patient passenger was no longer taking Vioxx, only Advil to relieve her pain. Dr. Brody opined that Patient passenger’s job would aggravate her rotator cuff symptoms and could affect her ability to do her job and put her at a competitive disadvantage with respect to her peers in workplace and in a social or recreational environment. Dr. Brody recommended a cortisone shot and physiotherapy. Dr. Brody had no further treatments to recommend to Patient passenger other than a strengthening program and possibly a pain management specialist.
The April 1, 1911 report
[168] Dr. Brody assessed Patient passenger again on April 1, 1911. He concluded that she continued to have chronic left shoulder rotator cuff impingement consistent with implied bursitis and tendinosis. Dr. Brody was candid that bursitis and tendinosis cannot really be seen except via surgery. However, impingement can be objectively tested through range of motion tests with pain feedback from the patient.
[169] Dr. Brody was not aware of Dr. House’s notes with respect to Patient passenger’s complaint of shoulder pain aggravation in 1909. He accepted that Patient passenger had made no complaints about her left shoulder to Dr. House between October 1903 and July 1909.
[170] Dr. Brody noted that Patient passenger’s shoulder was better in some ways and worse in others since he saw her in 1906. He testified that it is not uncommon for pain to flare and settle over time.
[171] With respect to her other complaints, Dr. Brody concluded that Patient passenger had neck pain from the whiplash sustained in Accident One which was exacerabated by Accident Two and lower back pain sustained in Accident One which was exacerbated by Accident Two. He felt her condition was both chronic and permanent and that she had reached maximum medical recovery. Her injuries were serious and affected her work life due to pain and limitations and household and leisure activities due to pain flare ups in her shoulder and lower back. Repetitive forward bending and lifting as well as long periods of standing can aggravate her pain.
[172] Dr. Brody noted that Patient passenger had not pursued any formal rehabilitation but she was doing cardio and weight training four to five times a week which he thought was a good idea. She had never pursued a cortison injection for her left shoulder.
The July and August 1915 Imaging
[173] Dr. Brody was referred to Exhibit 66. This document contained copies of certain imaging that was faxed to Dr. Brody’s office on August 18, 1915. Dr. Brody testified that he saw this imaging when he was putting together his binder for court preparation but had not seen it before. He obviously did not use it to assist in formulating any of his opinions in relation to the four reports discussed above.
[174] Although Dr. Brody is not a radiologist he receives MRIs and xrays as part of his practice and he reviews them. He is less adept with ultrasound but still uses it to assist with diagnosing patients.
[175] Dr. Brody was referred to the neck MRI dated August 9, 1915. He commented on the reference to “mild multilevel degenerative changes.” He testified that these types of changes can come from normal wear and tear due to aging, however, the degenerative process tends to speed up after trauma.
[176] Dr. Brody was asked to comment on the notation of “no central canal stenosis.” He testified that this meant that there are some changes to the spine such as hardening of the discs but nothing that would cause pain.
[177] Dr. Brody was then directed to the left shoulder xray dated July 3, 1915. He commented that calcification often means that where there is calcium seen near or in a tendon, this is an indication of possible tendinosis. He agreed that such calcification can be benign or the result of inflammation or trauma. It can result in pain. He also agreed that such calcification could be related to aging but in his experience it is more likely the result on ongoing shoulder impingement.
[178] Dr. Brody was then directed to the left shoulder ultrasound dated July 3, 1915. He was asked about the reference to there being no evidence of impingement on this image. Dr. Brody found this to be of minimal clinical reference. He testified that ultrasounds are often only as good as the technicians who perform them and as a surgeon he therefore pays little attention to impingement found on ultrasound. For Dr. Brody the xray was of more value because a rotator cuff seen with calcium on xray is a better diagnostic tool than ultrasound.
[179] Because Dr. Able did not have an opportunity to comment on this imaging in his own report (because it was not available), he provided a short written opinion dated December 4, 1915 which defence counsel read to you in court. It is marked as exhibit 91.
[180] Dr. Able does not agree with Dr. Brody’s interpretation of the imaging. His opinion was that the degenerative changes shown on the neck MRI were consistent with aging and did not suggest trauma, fracture, or dislocation. He noted that the degenerative changes were more pronounced on the right side which is not the side that bothered Patient passenger.
[181] The shoulder x-ray and ultrasound showed calcific tendinitis which is a degenerative condition of the rotator cuff tissues. The ultrasound confirmed no rotator cuff tear or impingement.
[182] Dr. Able concluded that the 1915 imaging does not support Dr. Brody’s conclusion in his April 1911 report that Patient passenger suffered from rotator cuff impingement, bursitis or tendinosis.
Dr. Shelly Smith
[183] Dr. Smith was called as a witness by the defence. However, she was not retained by the defence. She prepared an independent report dated October 28, 1903 at the request of Co-operator’s insurance – the plaintiffs’ insurance company. Dr. Smith is a physiatrist. This means that she manages the injuries and the functional implications of injuries after other specialists (such as surgeons) have dealt with a patient. Based on her extensive qualifications, Dr. Smith was qualified as an expert in physical medicine and rehabilitation.
[184] Dr. Smith had no independent memory of seeing Patient passenger in 1903. Her notes from this case had been shredded as per her office policy given the length of time since this report had been prepared.
[185] In order to prepare her report, Dr. Smith reviewed documents provided to her by Co-operators, took a history from Patient passenger and examined Patient passenger. Dr. Smith did not ask Patient passenger about the severity of either accident. Her view was that she was focused on what Patient passenger reported to her, the symptoms and her examination. The details of the accident were of less significance to her.
[186] Dr. Smith’s conclusions were that Patient passenger had suffered soft tissue injuries as a result of both accidents. She concluded that Patient passenger had no objective evidence of any physical impairments and recommended no further treatment. She added that Patient passenger may have been suffering from tension headaches. Specifically Dr. Smith found that, based on her examination of Patient passenger, she could find no evidence of left shoulder impingement. Given the Patient passenger had a full range of motion in her left shoulder, impingement would be impossible.
[187] In answer to the questions posed to her by the insurer, she noted that Patient passenger had;
a) No physical impairment related to Accident Two.
b) No substantial inability to perform the essential tasks of her employment;
c) No substantial inability to perform her pre-accident caregiving;
d) No substantial inability to perform essential tasks of pre-accident housekeeping and home maintenance.
e) No substantial inability to perform pre-accident self-care activities;
f) No requirement for further treatment or rehabilitation;
g) Able to drive and take public transit.
Family Doctor Expert – Dr. Reg House
[188] In considering Patient passenger’s possible injuries you may wish to consider the evidence of Dr. Reg House. She was qualified as a specialist in family medicine. She has had a family practice for 29 years. Both plaintiffs have been her patients since 1999.
[189] Patient passenger told her she that in May 1903 she was seatbelted and driving her van with two of her children in the back. She was hit on the driver’s side front. As a result of that impact she developed a headache and came to see Dr. House a few days later. She complained to Dr. House that her headaches were getting worse. She had residual neck, ear, jaw, back pain and headaches from the May 1903 accident. Patient passenger was diagnosed with a whiplash disorder and prescribed painkillers.
[190] When Dr. House saw Patient passenger on June 6, 1903 she was having flashbacks of the May accident, constant headaches which were made worse when she moved her head and tightness between her shoulder blades. An examination of her neck revealed restricted movement and pain.
[191] Dr. House saw Patient passenger again on June 9, 1903. At that visit Patient passenger complained that her headaches were getting worse and painkillers were not helping. After a chiropractic manipulation she was so sore she could not get out of bed. She had a very stiff neck and it hurt her when driving. Dr. House diagnosed neck strain and prescribed medication.
[192] Patient passenger saw Dr. House again on June 14, 1903. She complained of pain in her right ribs as if she had a pinched nerve. Dr. House prescribed Tylenol 3.
[193] On the June 18, 1903 visit to Dr. House, Patient passenger complained of headaches, sore chest and ribs, a sore right leg with pain in her knee and a backache. Dr. House prescribed Toradol as the codeine in Tylenol 3 made Patient passenger nauseous.
[194] On the June 24, 1903 visit to Dr. House, Patient passenger complained of headaches and pain in her left jaw. Dr. House referred her to a jaw pain specialist – Dr. Foreman. Patient passenger also told Dr. House that she had started to have nightmares about the accident so that at this point she was having both flashbacks and nightmares.
[195] Dr. House saw Patient passenger on June 26, 1903 complaining of a left ear ache. She also told Dr. House she was having trouble tolerating the chiropractic treatments because the manipulations hurt her neck and shoulders and gave her headaches.
[196] On the July 7, 1903 visit Patient passenger complained that her headaches were not going away and she continued to have pain in her neck, ear and jaw. Patient passenger saw Dr. House again on July 9, 1903 complaining of headaches that would not go away. Patient passenger was referred to a neurologist, Dr. Larry for her headaches. She saw Dr. Larry three times. He prescribed Maxalt and later Vioxx for Patient passenger’s headaches.
[197] Patient passenger consulted Dr. House on July 10, 1903 because of painful headaches, numbness in her face and a feeling of fullness in her ears. She was having trouble concentrating, caring for her children and doing housework. She also complained of upper and lower back pain. Dr. House noted that Patient passenger was scheduled to see neurologist, Dr. Larry on July 28, 1903.
[198] On the August 5, 1903 visit to Dr. House, Patient passenger said she continued to suffer from headaches and left hip and low back pain.
[199] Dr. House agreed that Patient passenger’s neck and jaw pain, occasional numbness into her teeth, low back and hip pain and her severe headaches all persisted until Accident Two.
[200] Patient passenger also saw Dr. House after the January 1, 1900 accident. She told Dr. House she was a passenger in the same van with her husband driving. They were waiting at a red light when a car hit them head on, on the passenger side. On impact, her head hit the dashboard. She was taken to hospital and released. Patient passenger came to see Dr. House on September 2, 1903 complaining of constant headaches and pain when moving her head, face numbness, right shoulder pain and neck pain, upper and lower back pain, sore wrists and groin tenderness.
[201] Dr. House agreed that as of Patient passenger’s visit to her office on June 26, 1902, Patient passenger had been suffering from headaches for at least five years and had been having headaches for at least two years before she began to see Dr. House in 1999. In June 1902, Patient passenger described the pain from her headaches as starting at the top of her head and moving into her forehead and then down into her teeth. This caused numbness in her face and pain that forced her to keep her eyes closed.
[202] Although Dr. House agrees that her September 2, 1903 note refers to right shoulder pain at three separate points in her notes from that day, she thought this may have been a note taking error on her part. She agreed that her note taking is accurate and that her note from September 2, 1903 indicated that Patient passenger’s left shoulder was fine. However, from October 16, 1903 onwards, Patient passenger complained of left, not right, shoulder pain. Dr. House testified that during her November 1915 conversation with Patient passenger, she was told that Patient passenger put her left hand on the dashboard and had resulting left shoulder pain. She had not been previously aware of this.
After the October 16, 1903 visit, Dr. House next saw Patient passenger for shoulder pain in July 1909. On that visit she complained of having had left shoulder pain for a week after lifting a bucket of water. In 1905 and 1906 Patient passenger saw Dr. House several times for neck and back pain between the shoulder blades.She was also referred to Dr. Kodesh, a rheumatologist, for pain.
[203] Patient passenger has continued to see Dr. House since 1903 for pain related complaints. Dr. House concluded that Patient passenger continues to suffer from chronic low back pain, severe headaches, left shoulder and arm pain and Post Traumatic Stress Disorder as a result of the May and August 1903 accidents. She agreed that all of the injuries from Accident One were worsened by Accident Two.
A. Damages for Pain and Suffering
[204] Next under the sub heading of General Damages you will want to consider the pain and suffering Patient passenger has undergone as a result of the accident and the pain and suffering reasonably certain to be experienced in the future as a result of the accident. I have set out some portions of the evidence you may wish to consider in arriving at a fair amount in this regard. Again, I remind you that this a summary of evidence and is not to be taken as a finding of any fact. That is your job.
[205] Patient passenger testified that she has an unsightly scar as a result of the surgery required to remove the scar tissue from her stomach. Because Patient passenger already had a scar from three previous Caesarean sections the area was vulnerable. She testified that the pressure from her lap belt resulted in an injury which caused her pain and discomfort. The surgery appears to have resolved the pain but the scar remains.
[206] Patient passenger continues to attend for chiropractic treatments and massage therapy which she pays for from her own pocket. She continues to see her family doctor, a headache specialist, an orthopaedic surgeon for her left shoulder and another doctor for her arthritis. With respect to medications, she continues to use an anti-inflammatory for muscle pain as well as topical creams. She also takes Extra Strength Advil and Tylenol as needed.
[207] Although Patient passenger is able to drive she testified that she feels nervous when driving and does not like following other vehicles too closely. Her pain has affected her intimacy with her husband and sometimes she is impatient with him. She is not as active as she used to be which has caused her to gain over 30 pounds. She can no longer carry her purse on her left shoulder because of the pain. She does not feel like socializing because of her ongoing headaches and pain. Prior to the accident she and her husband socialized frequently by going out together and having friends to their home. They no longer entertain friends at their home. Patient passenger testified that her pain is such that she cannot do the clean-up required when entertaining guests.
[208] Patient passenger still walks the dog occasionally but only when no one else is available to do it. She does grocery shopping for the family but tends to avoid using her left arm when taking groceries out of the car. She asks for assistance from her children when they are there. She also does some light outdoor maintenance such as watering flowers. Patient passenger attends a regular gym program as well as yoga and pilates. She takes Tylenol Arthritis and Alleve and uses topical anti-inflammatory creams for her neck and shoulder.
[209] Immediately following Accident One., Patient passenger had periods when she could not fully care for her children and had to rely on her nanny at the time Caroline. In cross-examination Patient passenger agreed that her nanny was no longer there as of the date of Accident Two.
[210] Patient passenger had dreams about the accident. There were times when the pain was so intense that she spent the entire weekend in bed. However, in cross-examination she conceded that she was unsure whether that happened after Accident One or Accident Two. Patient passenger’s insurance company provided her with special household cleaning tools by way of assistive devices for housework. She also received an Obus form cushion for her chair at work and an Obus form pillow to assist with the relief of neck and back pain at night.
[211] Patient passenger cannot recall when she went back to work after Accident One or Accident Two. She did recall that she did not go back to work right away after Accident Two and that at some point she went back to work on modified duties. Patient passenger was asked if there was anything she could not do upon her return to work full time after Accident Two. She testified she had back issues and could not do any lifting. However, in cross-examination she was shown the transcript from her Examination for Discovery on October 6, 1906. Her answer to the same question was that there was nothing she could not do upon her return to work full time. Patient passenger confirmed that the answers she gave on her discovery were true.
Plaintiff Driver – The Accident and Injuries
[212] As a result of the August 23, 1903 accident (Accident Two), Plaintiff Driver was thrown forward and his knee hit the dashboard, his body hit the driver’s seat belt post and his head the driver’s side window. His hands were clenched on the steering wheel.
[213] Plaintiff driver was taken to the hospital in Orillia by the police. He was given ice for the bump on his head and he felt numbness in his neck, knee and hands. He was admitted to hospital at 12:02 and discharged at 2:00 a.m. He was put into a neck collar. He returned to the hospital the next day for a CT scan which did not reveal any abnormalities. He was given a prescription for Tylenol 3 for pain. A few days later he went to see his family doctor, Dr. House, for follow up. She recommended therapy and prescribed Tylenol 3 for pain and Toradal for pain and inflammation.
[214] Plaintiff Driver described that he had injuries to his head and left shoulder from hitting the seat belt post and driver’s side window, injuries to his neck from the force of being thrown back on impact, injury to his left knee from hitting the dashboard, injury to his three left fingers from an unknown cause and injuries to his wrist from gripping steering wheel.
[215] Plaintiff Driver related that prior to the accident he was in good health and participated in many sports such as hockey, tennis, racquetball, lacrosse, soccer, football and baseball. He also lifted weights seven days a week. In cross examination Plaintiff Driver agreed that that answer was incorrect and that he lifted weights four times per week prior to the accident. He no longer plays sports because he testified that it aggravated his injuries. He continues to lift weights but on a much more limited scale. Plaintiff Driver continues to use Advil Extra Strength for pain and topical pain creams such as Biogel Freeze and A535.
[216] Since the accident, Plaintiff Driver has had many therapies including chiropractic treatments physiotherapy and massage. He used weight machines and does recommended exercises such as squats to help strengthen his muscles.
[217] Plaintiff Driver went for chiropractic treatments once or twice a week and massage once a week every week after the accident. His family doctor referred him to Dr. Morrison for his knee pain. Dr. Morrison performed arthroscopic surgery on Plaintiff Driver’s left knee. Plaintiff Driver’s evidence was that by February 2008 there was nothing that his knee pain prevented him from doing.
[218] Plaintiff Driver was also referred to Dr. Dan because of neck and shoulder pain which was interfering with his sleep. He also went to a neurologist at York Central hospital for the tingling in his hand. He could not remember the name of the doctor. He testified that over the years he has seen so many doctors he cannot recall all of them. Primarily he kept up with his physiotherapy and chiropractic appointments and did exercises to relieve pain. He currently has what he called a “rehab” weight routine for his shoulders, back and legs. This is 45 minute weight routine that he does three or four times a week. His evidence was that he can lift only half the weight he could before the accident.
Plaintiff Driver
Plaintiffs’ Expert – Dr. Cody
[219] Dr. Cody was qualified to give expert testimony on behalf of the plaintiffs as an orthopaedic surgeon with expertise in both upper and lower extremities. Like all of the experts in this trial, Dr. Cody was highly qualified and respected in his field. Dr. Cody is the director of sports medicine at the University of Toronto medical school. He also carries on a clinical practice, a fracture clinic and does research. He has treated high profile professional athletes and dancers in the course of his career.
The March 12, 1904 Report
[220] Dr. Cody completed two reports; March 12, 1904 and April 6, 1911. With respect to the 1904 report, the doctor testified that Plaintiff Driver identified his complaints as pain in his neck, lower back, and left knee and shoulder. He had been taking Celebrex, Tylenol 3 and Advil for pain. Plaintiff Driver had no significant pre-accident medical history. Plaintiff Driver reported to Dr. Cody that he had returned to work part-time after taking three months off work. The doctor was unaware of Plaintiff Driver’s evidence at this trial that he returned to work part-time by September 9, 1903, only nine days after the accident.
[221] Dr. Cody performed a physical examination on Plaintiff Driver. After doing the examination and certain relevant tests on Plaintiff Driver, Dr. Cody concluded that Plaintiff Driver had sustained soft tissue injuries to his neck and back from the January 1, 1900 accident. Dr. Cody fairly stated that he could not actually see the neck and lower back muscles without surgery but his theory was that there had been some tearing of the muscles/ligaments and damage to the discs and facet joints. Studies have shown that 10-15% of persons with soft tissue injuries suffer such damage. Dr. Cody was not aware of the information in the New Bodyz Rehab and Fitness report (exhibit 23) in which Plaintiff Driver reports having re-aggravated his left shoulder a few days before the November 4, 1903 report.
[222] The doctor also opined that Plaintiff Driver had damage to the underpart of his kneecap and rotator cuff tendinitis. Dr. Cody assessed that Plaintiff Driver’s pain was purely physical and was not connected to any psychological or chronic pain issues.
[223] Dr. Gilmore reviewed the report of Dr. Rush dated November 6, 1903. He disagreed with Dr. Rush’s conclusion that there was scientific evidence that Plaintiff Driver’s symptoms were not as a result of the accident. Dr. Cody was firm in his view that Plaintiff Driver’s symptoms came on after the accident. He also disagreed with Dr. Rush regarding Plaintiff Driver’s level of physical impairment. He did not think that Plaintiff Driver could carry out heavy physical activities but agreed that his return to work part time was reasonable.
[224] Dr. Cody opined that Plaintiff Driver would have physical limitations as a result of his injuries. In real terms this meant he would have trouble with heavy outdoor maintenance and the injuries would affect his ability to be competitively employed because of difficulties with bending, lifting or physical work. He recommended a gym program with non-impact cardio and muscle strengthening exercises.
[225] In conclusion, Dr. Cody testified that Plaintiff Driver had sustained permanent injuries because of the damage to his left shoulder and knee. The injuries were serious as they interfered with his lifestyle, wellness, his interactions with his children, his ability to do chores at home and his work. He has suffered impairment because there was a loss of function with his left knee and shoulder which would limit his activities.
The April 6, 1911 Report
[226] By the date of this report, Plaintiff Driver had had his knee arthroscopy in 1906. He told Dr. Cody he still had pain in his left knee, left shoulder and once a month or so he had pain in his lower back.
[227] Dr. Cody examined Plaintiff Driver and noticed significant improvement in his neck and back from seven years prior. Plaintiff Driver stated he still had difficulty with heavy lifting, kneeling and squatting. He was not able to do heavy outdoor work such as cutting grass. Dr. Cody agreed that he was not aware that Plaintiff Driver had been a bodybuilder in the 1890s nor did he ask him about what type of weights he was lifting in 1911. He agreed that lifting heavy weights incorrectly can cause damage to the shoulders.
[228] Dr. Cody did a physical examination of Plaintiff Driver and had him complete a pain disability questionnaire and an SF-36 health survey. On the SF-36 survey Plaintiff Driver measured in very lowest portion of the population or .1%. Dr. Cody felt this score was too low in terms of how sick Plaintiff Driver really was and agreed that this result may lead one to question the credibility of Plaintiff Driver’s responses or it could have been as a result of Plaintiff Driver’s pain perception. On the pain disability questionnaire, Dr. Cody testified that Plaintiff Driver’s results showed mild pain with functional limitations.
[229] Dr. Cody concluded that his examinations confirmed that Plaintiff Driver continued to suffer from rotator cuff tendinosis. Although he was clear about this diagnosis he agreed that he did not know whether there may have been pre-existing tendinosis or whether it was caused by the accident. The shoulder injury limits Plaintiff Driver with respect to repetitive movements.
[230] You may recall that Dr. Dolittle did not agree with Dr. Cody’ April 6, 1911 report. In his May 24, 1911 report Dr. Dolittle outlined that the October 2007 MRI and the negative impingement test are consistent with his conclusion that there was no rotator cuff tendon pathology.
[231] Plaintiff Driver also had damage under his knee cap as of 1904 but again Dr. Cody could not tell if that was from an aggravation or a new finding. The knee damage would affect Plaintiff Driver’s ability to kneel, squat, run and jump. Dr. Dolittle testified that he did not agree with Dr. Cody’ conclusions about damage under Plaintiff Driver’s kneecap. Dr. Dolittle felt that the damage was not trauma related but largely degenerative in nature or “idiopathic.” Idiopathic means that there is not really any explanation as to why the damage there.
[232] Dr. Cody opined that after seven years there was no doubt that the knee and shoulder pain was permanent because of the duration of the symptoms and the persistence of the abnormal physical findings. The injuries were serious in that they would affect his daily living activities including social and recreational activities and it would affect his work. It is Dr. Cody’ opinion that Plaintiff Driver’s impairment to his left shoulder and accident is directly related to the 1903 accident.
[233] Dr. Dolittle disagreed with Dr. Cody’ findings regarding impairment. He did not feel that Plaintiff Driver had suffered any impairment or serious injury from the accident. He did not disagree that one can have impairment from pain, but there must an injury consistent with the pain and ancillary tests to support that. He did not find that was the case with Plaintiff Driver.
[234] Dr. Cody was asked to comment on Dr. Dolittle’s report of November 9, 1915. He did not agree with Dr. Dolittle’s opinion that Plaintiff Driver had an injury to his left shoulder and knee but without any significant pathology. The difference in their views is that Dr. Dolittle is not satisfied that the injuries were not simply the result of a pre-existing condition. While Dr. Cody does not deny that Plaintiff Driver’s injuries are commonly found, he attributes the injuries to the accident.
[235] Finally, Dr. Cody opined that Plaintiff Driver would not deteriorate in future and there was no evidence he would develop arthritis or any other complication from the injuries.
Dr. Dolittle – Defence Expert
Report Dated October 3, 1907
[236] Dr. Dolittle was qualified to give expert evidence as an orthopedic surgeon and an expert in reconstructive surgery. He has been an orthopedic surgeon since 1893 and has a busy clinical and surgical practice. He has written a number of papers on trauma and reconstructive arm and leg surgery.
[237] Dr. Dolittle reviewed various documents provided to him, took a history from Plaintiff Driver and then examined him. Plaintiff Driver told Dr. Dolittle that he was driving his 1898 Caravan on January 1, 1900. He and his wfie were stopped at a light and he was the driver and was seatbelted. While stationary his vehicle was struck head on. His air bag did not deploy and he did not lose consciousness. Dr. Dolittle did not question Plaintiff Driver about the force of the impact as he does not ascribe as much importance to that as the injuries that resulted from the accident.
[238] After the accident, Plaintiff Driver exited the vehicle without assistance. He experienced left knee and shoulder pain as well as neck pain. He was taken to hospital and discharged after a normal CT scan. He attended at his family physician three days later complaining of neck, shoulder, low back and left knee pain.
[239] On physical examination Dr. Dolittle noted that the meniscal cartilege in Plaintiff Driver’s knee was normal and the ligaments were intact. Dr. Dolittle noted that wear and tear arthritis in the knee is very common and that by age 50 or 60, 40% of the population has some change in their knees.
[240] On examination of Plaintiff Driver’s neck, his range of motion was normal but there was pain when he rotated his neck to the left. The pain went into his shoulder joint at the back. Dr. Dolittle opined that the pain was radiating from the neck.
[241] With respect to the examination of the left shoulder there was no sign of impingement on testing. This meant that any finding of rotator cuff tendinitis on scan was not the source of his pain.
[242] Plaintiff Driver continued to have knee pain post accident and after an MRI showed some abnormality he underwent arthroscopic surgery on his left knee in December 1906. The surgery did not reveal any tear in the miniscus, only some degeneration which Dr. Dolittle describe as unremarkable early arthritis.
[243] Dr. Dolittle found evidence to support his conclusion in both Plaintiff Driver’s history and the fact that on movement, his shoulder and neck pain were not distinct from one another. In short, the pain did not originate from the shoulder. It was common neck pain that went into the shoulder.
[244] By way of history, Dr. Dolittle noted that Plaintiff Driver had reported neck pain to his family doctor prior to the accident in 1901 and 1902. A work place assessment dated October 1903 and reviewed by Dr. Dolittle noted his job as sedentary. He felt Plaintiff Driver was somewhat evasive when asked if there was any physical component to his job. In his report he used the word “circuitous” rather than evasive. Recall that Dr. Dolittle had no recollection of meeting with Plaintiff Driver. Plaintiff Driver reported that he hired an outside service to cut his lawn, shovel his snow and rake his leaves as he was no longer able to do this himself.
[245] Dr. Dolittle’s diagnosis was that Plaintiff Driver suffered a bruise to left shoulder and neck pain from Accident Two. He had a contusion on his left knee which did not result in a tear only a Grade One cartilege injury which is a minor finding. Plaintiff Driver’s history and examination were not consistent with a rotator cuff problem. In Dr. Dolittle’s opinion, it was mechanical pain going from the neck to the shoulder.
[246] Dr. Dolittle opined that even if Plaintiff Driver had rotator cuff tendinitis that would not have prevented him from doing outdoor maintenance or recreational sports. The pain experienced by Plaintiff Driver was not related to trauma but was consistent with the mechanical pain we all experience day to day from our jobs, our lifestyle or simply from aging. Dr. Dolittle felt that Plaintiff Driver had become hypervigilant about his aches and pains to the point where he had become focused on allegedly accident related symptoms which were largely normal.
[247] Dr. Dolittle was asked about an MRI of Plaintiff Driver’s left shoulder an neck done on October 4, 1904. It referred to disc “bulging.” Dr. Dolittle did not feel this was a significant finding. Most people have some form of disc bulging by age 40 or 50. One has to find out more from the patient to determine if it is significant.
[248] The prognosis in plaintiff driver’s case is excellent. Neck or related shoulder pain caused from trauma is a sprain type injury and 90% of people get better. Plaintiff Driver would not experience any impairment with respect to home maintenance, housekeeping, occupation or early retirement. The prognosis for complications is also low. There is no reason why Plaintiff Driver cannot continue with gainful employment with no limitations from the accident and no vocational disadvantage.
The January 2010 report
[249] Dr. Dolittle did not see Plaintiff Driver personally for any of his subsequent reports. They were reports based on additional documents provided to him by the law firm that retained him.
[250] An MRI of Plaintiff Driver’s shoulder from April 1904 showed a thinning but otherwise normal rotator cuff. An ultrasound of his shoulder from 1906 showed bursitis or tendinitis in the shoulder. Dr. House referred Plaintiff Driver to Dr. Clarke, an orthopedic surgeon. In 1907, Dr. Clarke diagnosed left shoulder impingement. Dr. Dolittle did not agree with this diagnosis. In his report he focused on the impingement test done by Dr. Clarke. This is a test where freezing and cortisone is injected into the shoulder. In simple terms, if the patient reports an improvement then it is likely a rotator cuff problem and the MRI findings become irrelevant. In Dr. Dolittle’s opinion, the impingement test confirmed to him that Plaintiff Driver did not suffer from impingement. His opinion was that Plaintiff Driver’s pain is more mechanical; that is, neck pain masquerading as shoulder pain and commonly found.
Dr. Reg House
[251] Dr. House testified that Plaintiff Driver had been in good health before the August 1903 accident. He reported to her that he been driving the family van with is wife as passenger. He and his wife were wearing their seat belts and waiting for a red light in position to exit a plaza in Orillia. The van was hit on the front passenger side and the air bag did not deploy.
[252] As a result of the accident Plaintiff Driver developed pain in the head and neck area, left shoulder, hand and elbow and had numbness in some of his left fingers. He was taken to emergency and discharged with a neck brace.
[253] Dr. House saw Plaintiff Driver on September 3, 1903. She examined him and found restricted motion in his head and neck as well as tender muscles in that area. His left leg and knee were tender with bruising and he had tingling in his left hand. Dr. House prescribed Naproxin and recommended physiotherapy. During a visit to Dr. House in December 1903, Plaintiff Driver complained of neck and left shoulder pain. He came back a week later complaining his left shoulder was worse. She prescribed Tylenol and Advil.
[254] Plaintiff Driver saw Dr. House in January, March and April 1904 for shoulder pain. He was prescribed Mobicox for pain.
[255] Dr. House referred Plaintiff Driver to rheumatologist Dr. Carey for shoulder pain in June 1904 and knee pain August 1906. He was also referred to orthopaedic surgeon, Dr. Clarke, in October 2007 for shoulder/rotator cuff pain.
[256] Dr. House saw him again in 1906 when he continued to complain of knee pain. She prescribed Tylenol 3 and Celebrex. Dr. House last saw Plaintiff Driver for knee pain in September, 2010.
Plaintiff Driver – Damages for Pain and Suffering
[257] Next, you will want to consider the pain and suffering Plaintiff Driver has undergone as a result of the accident and the pain and suffering reasonably certain to be experienced in the future as a result of the accident. I have set out some portions of the evidence you may wish to consider in arriving at a fair amount in this regard. Again, I remind you that this a summary of evidence and is not to be taken as a finding of any fact. You may find that Plaintiff Driver’s pain and suffering has been significant, nothing at all or something in between. That is your job.
[258] Before the accident, Plaintiff Driver would spend time walking and training his dogs for competitions, taking his children to parks, camping and to the cottage and he and wife engaged in social activities including frequently having guests to their home. Now, he no longer engages in dog competitions because of the travel involved. He is too sore and lacks the energy to continue taking his children to activities, although he continues to take his son to hockey games and practices six times per week. In the summer he takes his son to hockey training sessions once a week. He and wife rarely have guests over because they find it hard to clean up after guests. Plaintiff Driver added that he loses his temper in large crowds and is often in a bad mood. Plaintiff Driver told the court that the intimacy between him and his wife is not the same as it was because of her pain. This has lead to arguments between them.
[259] In terms of household maintenance, prior to the accident Plaintiff Driver cut the lawn three times per month in season. After the accident, Plaintiff Driver continued to cut the lawn but it took him longer and his shoulder, neck and knee would be sore afterwards from the pushing. He would use ice, Advil and a topical creams to ease the pain and inflammation. In cross-examination Plaintiff Driver testified that in fact a landscaping company has been cutting his lawn since before the accident. He has only cut it occasionally.
[260] Before the accident Plaintiff Driver sometimes shovelled the snow in his driveway but not always. Since the accident, he has generally used a snow shovelling service to do this other than when he had his own snowplowing business. If he did shovel any snow after the accident, he would experience pain in his lower back and shoulders from the bending and pushing. He would take Advil for the pain. Now that his children are older (his son Ryan is 15) they are able to help more with outdoor chores. Plaintiff Driver’s insurance company provided him with a snow shovel with a specially curved handle. This is to reduce pressure on his back in the event he shovels snow himself.
[261] Plaintiff Driver takes out the garbage each week. His insurance company provided him with a garbage can on wheels so he does not have lift it.
[262] Plaintiff Driver continues to lift weights three to four times per week. He is able to bench press 150-155 pounds with a 20-25 pound bar for two sets of five to six repetitions. He is also able to lift dumb bells weighing a total of 50-70 pounds. By way of shoulder exercises he can lift 110 pounds on a Smith machine for three sets of five to 10 repetitions. He also does leg exercises on the Smith machine including squats where lifts 70 pounds for four sets of ten repetitions, leg presses of 270 pounds for three sets of five to eight repetitions and calf raises with weights of 25-45 pounds per side for three sets of five to ten repetitions.
[263] Plaintiff Driver continues to attend for physiotherapy and chiropractic treatments. He also continues to see his family doctor, Dr. House. He pays for his therapy out of his own pocket. This costs him approximately $100 to $300 per week depending how many sessions he attends. He also pays for topical creams at $12-15 per tube, over the counter medications at $17-$20 per bottle and prescriptions at $30-$40 per bottle. You may wish to refer to Exhibits 28 and 29 which contained a list of prescription medications from Shopper’s Drug Mart for Plaintiff Driver between October 1902 and May 1909. Plaintiff Driver testified in re-examination that this is not the only pharmacy he uses and that he has purchased prescriptions from another pharmacy in Richmond Hill. A list of those prescriptions was not provided.
[264] Plaintiff Driver continues to have pain in his lower back, shoulder, neck and knee. He also has numbness in his fingers. He occasionally gets headaches but most of the pain is in his neck and shoulder. He described his current neck, lower back, left shoulder, knee and finger pain as being a 7/10. Excessive exercise or rigorous outdoor work makes the pain worse. He has lost weight.
[265] Plaintiff Driver was shown a report from New Bodyz Fitness and Rehab which indicated that Plaintiff Driver told them he was 70% better by November 4, 1903 except for his shoulder. Plaintiff Driver did not recall being that much better within eight weeks of the accident. He testified that some things in the report could be wrong and some things could be right. He just could not remember.
[266] Plaintiff Driver told the court that he used to be a bodybuilder and received steroid injections in the mid-nineties to help him bulk up. During this period in his life he weighed as much as 200 pounds. Based on Dr. House’s notes, Plaintiff Driver’s weight fluctuated between 130 to 143 pounds between 1999 and 1903 so it is not clear that he lost weight following the accident.
[267] Plaintiff Driver gets headaches about four times per week that last most of the day. He has pain in his neck, shoulder, left knee, lower back and fingers every day. He described the pain as being constant or present for the majority of the day.
Assessment of General Damages
[268] Members of the jury, our law recognizes that it is very difficult to translate into monetary terms the qualitative impact on a life of the injuries sustained as a result of the accident. It is not like compensating someone for their loss of income where we can apply objective factors and assess someone’s earning capacity. Here we are trying to assess the value in monetary terms of such factors as pain and suffering and loss of enjoyment of life, factors for which there are no real objective yardsticks. As the Supreme Court of Canada has put it “There is no medium of exchange for happiness.” All we can do is attempt to assess the monetary compensation required to provide an injured person with reasonable consolation for their misfortune. Money can be used to give a person pleasure or satisfaction.
[269] Members of the jury, in cases of this kind the law permits counsel and the trial judge to suggest possible ranges of damages assessment for your guidance. The submissions of counsel and my suggestion to you are in no way binding and it is for the five of you to conclude what an appropriate amount is for this head of damages. In this case, you must determine what amount, if any, you determine for damages resulting from the August 1903 accident for pain and suffering for Plaintiff Driver. In doing so you will want to consider Plaintiff Driver’s evidence, the expert evidence. There was a significant difference of opinion with respect to Plaintiff Driver’s injuries ranging from Dr. Cody’s view that they were serious and permanent to Dr. Dolittle’s view that they were not accident related and in the nature of common age related degeneration. You must decide what evidence you decide to accept or reject based on the factors I gave you earlier.
[270] Once you have made that determination you may fill in the answer to Question 7 on Plaintiff Driver’s question sheet.
Global Assessment of Damages for Patient passenger
[271] Before you can answer any question about Patient passenger’s damages for pain and suffering, you must consider the effect of the September 30, 1899 accident. I will provide a summary of that accident and the injuries below.
Details of the September 30, 1899 Accident
[272] The First Accident (“Accident One”): Patient passenger was unfortunately involved in another motor vehicle accident only 12 weeks prior to the one in this case. While waiting at a red light, the driver’s side front corner panel of her van (the same van she was driving when the January 1, 1900 accident occurred) was hit. Her airbag did not deploy. Patient passenger did not go to the hospital. The cost to repair the damage from the first accident was $3637.51. As a result of that accident, Patient passenger had neck, shoulder, wrist and left hip pain. She broke a toe on her left foot and also had headaches. She was given Tordal, Naproxin and Tylenol for her pain in relation to Accident One.
[273] Patient passenger was shown a questionnaire she filled out for her neurologist Dr. Larry, dated July 28, 1903. She agreed that the writing on the questionnaire was hers but she had no specific recollection of filling it out. She did not disagree with the answers she wrote on the questionnaire which included that she missed 24 days of work and that her productivity at work was reduced by 50% for 12 weeks because of Accident One. Agreeing that the answers in the questionnaire were truthful, Patient passenger testified that the questionnaire indicated that as a result of Accident One, she had a headache every day between April 28, 1903 and July 28, 1903 and that she had nausea, sound and light sensitivity, and thought, speech and concentration disturbances from those headaches. She rated her overall pain as a 7/10.
[274] Patient passenger was shown a letter from Dr. Mary Katsitadze of Richmond Hill Medical and Rehab dated June 17, 1903.The letter was addressed to Dr. House and contained a proposed treatment plan for Patient passenger after Accident One. The letters sets out that Patient passenger’s chief complaints were neck, shoulder and upper back pain and headaches. She also complained of radiating pain and numbness into the face and jaw. Patient passenger did not disagree that she had these complaints at a point which was about two months away from Accident Two.
[275] Patient passenger was shown the transcript from her examination for discovery which was held on October 6, 1906. The discovery took place because Patient passenger had sued the defendants in Accident One and they had the right to examine her for discovery under oath. Although Patient passenger had no specific recollection of the answers she gave on discovery, she did not disagree that the transcript accurately reflected her answers and that the answers were true. In the course of that discovery Patient passenger stated that there were no days prior to Accident Two on which she did not have a headache and that the headaches were very bad to the point where she went to see a neurologist about them in July 1903 less than five weeks before Accident Two. She agreed that her headache pain was a 7/10 just prior to Accident Two.
[276] Patient passenger testified that her neck pain just prior to Accident Two was a four or five out ten because she had started to feel better. However, she conceded that her discovery transcript reflected her stating that her neck pain just prior to Accident Two was a 7/10. She agreed that her upper back pain was present 24 hours a day, seven days a week after Accident One. She did not dispute her discovery evidence concerning her shoulder pain as 7/10 and having continuing back pain from Accident One just prior to Accident Two. Specifically, her discovery evidence was that as of October 6, 1906.
[277] Because of Patient passenger’s accident on September 30, 1899 you must consider the extent to which Patient passenger’s previous accident contributed to any damages for pain and suffering with respect to Accident Two. We know, for example, that Patient passenger had headaches that pre-existed Accident One. We also know that she complained of neck, shoulder, upper back pain and headaches from Accident One. She was still having headaches every day up to Accident Two and her shoulder, back and neck pain continued to be 7/10 up to the date of Accident Two.
[278] In most cases where there are overlapping injuries there will be an issue as to whether or not the injuries truly overlap or whether there are completely separate injuries. There will frequently be issues as to the extent of the injury caused in the various accidents. However, in this case, those usual concerns do not apply. The experts are clear that the only “new” injury suffered by Patient passenger from Accident Two was her left shoulder injury. Dr. Brody and Dr. Able disagree on the extent of this injury. Dr. Able found no impingement or permanent impairment. Dr. Smith found that Patient passenger had a full range o motion in her left shoulder which would make impingement impossible. Dr. Brody found that she had a chronic left shoulder rotator cuff impingement which was permanent and serious.
[279] Patient passenger’s neck and back pain were attributable to Accident One and only exacerbated by Accident Two (check re Dr. Brody). Given that these symptoms are difficult if not impossible to separate, you must decide whether or not and in what percentage damages for the injuries from Accident One affect the damages for any related injuries suffered in Accident Two.
[280] That is, if her neck, back and headache pain was already at a 7/10 when she had Accident Two you may choose to consider that when apportioning how much each accident contributed to Patient passenger’s damages. Alternatively, you may decide that her injuries from Accident Two, although related to Accident One, were sufficiently serious that they stand on their own or that Accident One played a minimal part in her damages for pain and suffering for Accident Two.
[281] Please consider the evidence and my instructions and then answer question 9 in relation to the apportionment of damages as between Accident One and Accident Two. Once you have answered Question 9 you may then go on to consider the evidence, expert and otherwise, in relation to both accidents and decide how much, if any, you assess Patient passenger’s damages for pain and suffering for both accidents. This will be your answer to Question 10.
C. Mr. and Patient passenger’s Loss of Income Up to the Date of Trial
[282] The next category or heading of damages you must assess in relation to Mr. and Patient passenger relates to any income loss that Mr. and Patient passenger may have suffered up to the date of trial. This requires you to assess the amount that you consider Mr. and Patient passenger might reasonably have earned from the date of the accident, January 1, 1900, to the date of the commencement of this trial, November 16, 1915,( a period of just over 12 years) were it not for the accident.
[283] As with general damages, the onus is on the plaintiffs to satisfy you on a balance of probabilities as to their past income loss. In assessing the amount that you award for Mr. and Patient passenger’s past loss of income I would suggest that you make a determination as to what you find on a balance of probabilities that Mr. and Patient passenger would have earned in each of the years before the commencement of this trial had it not been for the accident.
Employment History – Plaintiff Passenger
[284] To assist you in making this determination I urge you to consult Exhibits 37 and 38 which are the packages of Notices of Assessments for both plaintiffs between 1898 and 1914. You will recall hearing evidence that there is no Notice of Assessment for Patient passenger for 1903.
[285] With respect to their individual work histories, Patient passenger testified that she graduated from high school in 1993. She upgraded her English and Math in 1909 or 1910. After high school she worked as a waitress and then began with Sleep Country in 1995. In 1998 she earned $7000 working for Sleep Country. She earned $7000 and $7200 in 1899 and 1900 respectively.
[286] In 1901 Patient passenger began working as an office manager at Specialty Cards Ltd. This was a family business owned by Plaintiff Driver’s brother. It produced and sold specialty cards. She worked in that business until 1908 when the business closed. Of note, is the evidence of Dr. Able who testified that Patient passenger told him that she was working at Specialty Cards Ltd. full time as an office manager when he interviewed her in July 1911. This is different from the assumptions relied upon by Ms. Ecomonic Expert in her report.
[287] Patient passenger testified that while at Specialty Cards Ltd. she earned $10 an hour for 30 to 35 hours of work per week. Recall, however, that she told Dr. Brody that she worked 40 hours a week at Specialty Cards Ltd. She explained that she gave her accountant, Mr. Joe Bookwork, the documents required to file her 1903 income tax return. She does not know why they were not filed other than Mr. Bookworm died around that time.
[288] Patient passenger explained that in 1906 there was change in the way she was paid at Specialty Cards Ltd.. She received her pay through her husband’s company, not through NSC. This is why her reported income went down in 1906 and was nil in 1907 and 1908.
[289] When Specialty Cards Ltd. closed down in 1908, Patient passenger began to look for other work. She went to an employment centre to get help with her resume. She decided to help her husband with his gardening business from April 1909 until sometime in 1912. Her reported income in 1909, 1910 and 1911 was nil however she also testified that the income earned from the gardening business was sufficient to carry the family through the rest of the year. Her evidence was that she answered the phone, and did some banking and invoicing for the business but all of the income went to her husband’s company. She used this time to upgrade her English and Math and to spend extra time at home with her three children.
[290] In 1911 Patient passenger also worked briefly for a small business she and her husband ran out of their house. The income was nominal and the business was not a success.
[291] In December 1912 Patient passenger obtained a job as a fashion assistant at a Macy’s retail store. Her T4 earnings in 1912 from this job were $1,422. In January 1915 her title changed to Team Lead. Patient passenger testified this was not really a promotion; it was more accurate to say that she fell into the position because of a lack of staff. Her performance appraisal as a fashion assistant indicated that she met the required results. Her performance appraisal as a team lead indicated a score of 2.85 which was in the “solid” range of 2.75-3.40 based on Macy’s “Overall Performance Rating Scale.”
[292] Patient passenger’s Notices of Assessment for the two years prior to the accident and up to the 1914 tax year are set out below.
a. 1901 – T4 earnings of $6381 plus other income of $27,000 for a net total of $21582.
b. 1902 – T4 earnings of $18,108 plus other income of $27,000 for a net total of $34,108.
c. 1903 – no information available.
d. 1904 – net income of $21,350.
e. 1905 – net income of $17,750.
f. 1906 – net income of $4,115.
g. 2007 – no income.
h. 2008 – no income.
i. 1909 – no income.
j. 2010 – no income.
k. 1911 – no income.
l. 2012 – T4 income of $1,422 (Macy’s)
m. 2013 – T4 income of $12,393 (Macy’s)
n. 2014 – T4 income of $17,668 (Macy’s)
[293] Starting in 1898 Patient passenger began to accumulate a debt to CRA. By 1901 she owed them $11,096. By 1909 that outstanding balance had grown to $24,733.00. Her 2010 Notice of Assessment shows no outstanding balance owing. You may recall hearing evidence that Patient passenger filed various income tax returns long after they were due, in the case of her 1904 income return, it was filed up to 10 years after it was due. No actual income tax returns were available for Patient passenger, only her Notices of Assessment.
[294] Patient passenger has given notice at Macy’s and started a new job as of December 1, 1915. Her evidence was that she found the physical part of the Macy’s job difficult. This included changing both floor and walls displays. Patient passenger did not know the exact name of the place she would be working but knew that it was an addiction centre and that she would be doing office administration. She was not clear what she would be paid for this job.
Plaintiff Driver Employment History
[295] Plaintiff Driver finished Grade 11 and later returned to Humber College to obtain his Grade 12 equivalency. At the time of the accident (remember that Plaintiff Driver was not involved in Accident One so you are only concerned about Accident Two with respect to Plaintiff Driver), Plaintiff Driver was working for Speciality Cards Ltd, a manufacturer of specialty cards. Plaintiff Driver started to work for Specialty Cards Ltd. in 1998. He worked from between 8 to 16 hours a day and often worked weekends. His duties were very expansive and included sales, production, client relations, inventory and warehouse. In addition to office duties, Plaintiff Driver often drove or flew to destinations in both Canada and the U.S. for trade shows or to meet with clients. Eventually Plaintiff Driver worked up to the position of President.
[296] At the time of the accident, Plaintiff Driver was earning a base salary of $300 per week gross. Commission for the sale of vehicles was paid on top of this. Plaintiff Driver described himself as a good salesman who regularly earned commission in addition to his base salary.
[297] After the accident, Plaintiff Driver testified that he took about three to six months off work. He was not paid for this time other than the commission on sales he made prior to the accident. He then returned to work part-time and worked about 4.5 hours per day.
[298] Plaintiff Driver was shown a copy of Exhibit 21, an in-home assessment report prepared for his insurance company. The report indicated that Plaintiff Driver told his insurer that by September 9, 1903 he had already returned to work for two to three hours a day. Plaintiff Driver agreed that the report was true but then testified that he returned to work three months after the accident.
[299] Plaintiff Driver was then shown Exhibit 22, a work-site assessment report prepared by his insurer. Plaintiff Driver testified that he did not recall the assessment but did recall receiving a telephone headset for work. Plaintiff Driver was asked about page 8 of the report in which set out that Plaintiff Driver was doing office duties for seven to nine hours a day as of October 1903. Plaintiff Driver denied this and said the report was wrong. He was certain he had taken three months off work after the accident.
[300] Plaintiff Driver was shown Exhibit 24, the psychiatric report of Dr. Longdon dated November 4, 1903. Plaintiff Driver was sent to see Dr. Longdon by his insurance company. That report said that Plaintiff Driver told Dr. Longon he returned to work after two weeks. Plaintiff Driver did not dispute the contents of the report but he had no memory of seeing Dr. London.
[301] Dr. Cody testified that Plaintiff Driver told him in April 1904 that he returned to work three months after the accident. When he returned to work he was no longer able to help out in the factory as he was unable to do any lifting or carrying.
[302] Plaintiff Driver was shown Exhibit 26, a Declaration of Post-Accident Income and Benefits. That declaration was filled in by Plaintiff Driver and indicated that he earned $13,470 between January 1, 1900 and January 6, 1904. Plaintiff Driver was asked how he could have earned this income if he was off work for three to six months. Plaintiff Driver said he did not know and did not recall signing the declaration.In the end, Plaintiff Driver simply did not know when he returned to work after the accident.
When Plaintiff Driver returned to work he testified that his sales dropped. However, recall that in 1904 his reported gross business income was $117,209 but his gross commission income in 1903 was $79,840. One could conclude that his sales did not go down in 1903. However, one could also conclude that the 1904 commission income was partly earned in 1903 but no evidence was produced to support this. He was no longer able to travel as much and felt unable to give the same effort as before towards marketing and sales. He could not lift the same weight he did before. This affected his ability to help out in the warehouse. Plaintiff Driver’s evidence was that eventually Specialty Cards Ltd. hired other employees to take on some the responsibilities he had before the accident. Although Specialty Cards Ltd. was owned by his brother, Plaintiff Driver did not feel that he was accommodated to any great extent.
[303] Specialty Cards Ltd. closed due to the economic downturn in 2008. Plaintiff Driver received no severance. Plaintiff Driver’s testimony was that in 1906 and 2007 Specialty Cards Ltd. was in financial difficulty. In 2007 he even went so far as to apply for a job with a competitor in the U.S.
[304] In 1909 Plaintiff Driver started his own gardening business. He had tried to get a job in the specialty cards field but there were not many jobs, especially for someone who had to take time off for rehab and doctors’ appointments. The gardening business ended in 2012. Plaintiff Driver took some government sponsored courses to help him with his resume.
[305] In April 2013 he began a job as a sales executive with Ford selling professional vehicles. He testified that he earns a base salary of $20,000 plus commissions. Plaintiff Driver later corrected this answer in cross-examination and testified that his initial base pay was $24,000. Plaintiff Driver was shown Exhibit 36, an email dated July 22, 2013. The email is from Lori Lynn in payroll at Ford and advised Plaintiff Driver that his pay as of August 1, 2013 would be increased to $36,000. Sometime after that Plaintiff Driver was promoted to Vice-President of Sales. Plaintiff Driver did not disagree that his pay had increased by 50% within 2.5 months of starting at Ford.
[306] Ford has accommodated Plaintiff Driver by permitting him to work between 10:00 a.m. to 2:30 p.m. Monday to Friday. Plaintiff Driver’s evidence was that even with an expensive chair, a footstool and his Obus forme cushion, he is in too much pain to be able to sit all day. He is unable to do any physical work for Ford. He can only answer calls and meet clients at his office. He testified that these constraints have impacted his potential sales income.
[307] Plaintiff Driver testified about his income since 1999. The Notices of Assessment filed with the court (Exhibit 38) showed his income to be as follows;
a. 1998 – no income
b. 1999 – no income
c. 1900 – no income
d. 1901 – net income of $18,079
e. 1902 – net income of $14,437
f. 1903 – net income of $62,872
g. 1904 – net income of $45,833
h. 1905 – net income of $52,399
i. 1906 – net income of $34,333
j. 1907 – net income of $19,083
k. 1908 – net income of $15,674
l. 1909 – net income of $ 201
m. 1910 – net income of $17,828
n. 1911 – net income of $7,264
o. 1912 – net income of $3,211
p. 1913 – net income of $22,182
q. 1914 – net income of $62,842
[308] Plaintiff Driver’s 1914 Notice of Assessment shows that he owes CRA $72,026.96. Plaintiff Driver testified that there is an ongoing issue between himself and CRA as to what he owes. It has not been resolved.
[309] Plaintiff Driver was referred to his T1 General for 1901 (Exhibit 42). In that year he earned gross income of $75,400 with expenses of $56,020 leaving net income of $19,797. He was then referred to his T1 General for 1902 (Exhibit 44). In that year his gross business income was $74,272.25 with expenses of $60,347 leaving net income of $13,478.87. These were the only T1s which Plaintiff Driver had for trial purposes. He could not say why. Plaintiff Driver also did not have financial statements for his previous employers. He told the court they were at home. As Plaintiff Driver only had full returns available for 1901 and 1902, you may find it is hard to determine how he calculated his net income; that is, how much he deducted for expenses and what the expenses were for. You heard in his cross-examination that his expenses fluctuated a lot year to year.
[310] Plaintiff Driver agreed that based on his Notices of Assessment, in his first four years with Specialty Cards Ltd. he would have only made about $3500 after expenses. He agreed that the year in which he earned the most income (62,872) was 1903, the year of the accident.
[311] Plaintiff Driver was asked why he filed so many of his returns many years after they were due. He was not really sure.
Expert Witnesses on Past and Future Income Loss
Plaintiff Passenger
[312] Ms. Expert Accountant was called as an expert witness by the plaintiffs. You will recall that her extensive accounting related qualifications were reviewed in court. She was qualified as a litigation accountant to give opinion evidence with respect to the quantification and assessment of past and future income loss for Mr. and Patient passenger. Please refer to Exhibit (yet to be marked) for a summary of all of Ms. Expert Accountant’s calculations relevant to both past and future loss of income for both Mr. and Patient passenger.
[313] Ms. Expert Accountant prepared a summary of income losses for Plaintiff Passenger. Her calculation of past loss of income began on January 1, 1904. This start date was chosen because Patient passenger had not been working full time due to both accidents but intended to go back full time in January 1904.
[314] Because Patient passenger worked in a family business, Ms. Expert Accountant calculated an income for Plaintiff Passenger using the median for office workers in 2010 and adjusted that number for inflation going both forward and backward. Ms. Expert Accountant felt this was a more reliable number given that people who work in family businesses are sometimes paid much more or much less than what the market will bear. Based on these assumptions, Ms. Expert Accountant started with an income for Patient passenger of $21,844 in 1904.
[315] Ms. Expert Accountant also made other assumptions related to Patient passenger. She assumed, based on what she was told by Patient passenger, that she continued to work at Specialty Cards Ltd. until early 1906 when she stopped working due to accident related injuries. She did not recommence employment until November 1912. Ms. Expert Accountant was surprised to learn that in fact Patient passenger had continued to work at Specialty Cards Ltd. until the company closed in 2008. She was also unaware that Patient passenger had worked for other employers before she started with Macy’s in 2012.
[316] Ms. Expert Accountant also assumed that Patient passenger received no post-accident benefits as this is what she was told. In fact, Patient passenger received $3,617 in Income Replacement Benefits from her insurance company post-accident. Ms. Expert Accountant thought that Patient passenger had not received Income Replacement Benefits because she was working part time. This proved to be an incorrect assumption.
[317] Ms. Expert Accountant agreed that her report was only as good as the assumptions she made to create it and that the fewer of her assumptions that proved to be true, the less reliable her report becomes. For example, Ms. Expert Accountant was not told to consider the injuries from Accident One in her report. Therefore, if any loss of income was attributable to Accident One and not Accident Two, that did not factor into her report. As well, Ms. Expert Accountant assumed that Patient passenger never went back to work full time after Accident Two. This was different from the evidence given by Patient passenger at trial who said she did return to work full time at Specialty Cards Ltd. but she could not remember exactly when, possibly after a few weeks of working on modified duties.
[318] The period used to calculate past loss of income is January 1, 1904 to the first day of trial or December 1, 1915. Ms. Expert Accountant adjusted backwards for inflation and adjusted further for source deductions. The law requires that Ms. Expert Accountant use 80% of that net number for her calculations. So, using the example of 1904, Patient passenger’s income adjusted for inflation and based on Ms. Expert Accountant’s assumptions, would be $20,844. Source deductions of $4417 were then subtracted from that number leaving $15,697. 80% of that net number was calculated as $13,158. Subtracted from that number (and again in accordance with Ontario law) would be 80% of Patient passenger’s post-accident net income for that year or $12,314. The final net number for 1904 is therefore $802. This means that based on Ms. Expert Accountant’s calculations, Patient passenger would have earned $844 more in 1904 had it not been for the injuries she suffered in the accident.
[319] Ms. Expert Accountant used the same calculations for each year between January 1, 1904 and November 16, 1915. The total loss of income for Patient passenger for this 11.88 year period based on Ms. Expert Accountant’s calculations was $130,000.00.
[320] Ms. Expert Accountant was asked to recalculate her numbers if Plaintiff Passenger left Specialty Cards Ltd. in 1908 rather than 1906 and assuming that she earned $19,000 in each of those additional years. Her evidence was that this would reduce the past loss of income by $40,000 thereby reducing the number from $130,000.00 to $90,932. You may choose to use this number instead of $130,000.00 if you accept that the information given to Ms. Expert Accountant by Patient passenger about her employment in 1906, 1907 and 1908 was incorrect or you may come to the conclusion that Patient passenger has suffered no past loss of income or has suffered a loss that equates to a number between 0 and $90,000.00 up to $130,000.00.
[321] You may recall that Patient passenger testified that she received a certain amount of income replacement benefits and other reimbursements from her insurance company. It is very important for you to understand that it is not up to you as the jury to make any deductions at all. Those deductions are made by me from the amounts that you may assess as damages. The process is that that once you make your damage award, I review with the lawyers what the deductions are and they are made once your duties are finished.
Plaintiff Driver
[322] Turning to Plaintiff Driver’s past loss of income, Ms. Expert Accountant made her calculations in exactly the same way that she did for Patient passenger. It is important to note that Ms. Expert Accountant made several assumptions about Plaintiff Driver’s income including a start date for the calculations of January 1, 1904. Ms. Expert Accountant assumed no loss of income for Plaintiff Driver in 1903 despite his evidence that he took some amount of time away from work although he could not remember how much time. The 1904 gross income number of $62,722 was based on his inflation adjusted 1903 net commission income, as per his tax information. Ms. Expert Accountant was asked why she based her calculations on Plaintiff Driver’s highest earning year (1903). She explained that she assumed that in 1904 and 1905 his income would have been affected by his injuries so she chose 1903.
[323] Ms. Expert Accountant also assumed that Plaintiff Driver deducted 10% by way of expenses leaving a 90% profit. She was questioned about why she made that assumption as in 1901 his profit was only 20%. She agreed that the 59% expense ratio in 1904, and the 44% expense ratio in 1906 were also far higher than the 10% she assumed.
[324] The total loss of past income for the period of January 1, 1904 to November 16, 1915 was $300,000.00 based on Ms. Expert Accountant’s calculations.
Key Factors to Consider in Assessing Past Lost of Income
[325] In coming to your conclusion in this area you must decide on certain key factors. The first factor relates to what Mr. and Patient passenger would have actually earned in the years between the accident and this trial. Ms. Expert Accountant has assumed that Patient passenger would have worked as a general office worker. You may have a different view.
[326] In addition, you will have to decide how much Mr. and Patient passenger actually earned in each of the years following the accident. I have pointed out some of the areas in which information is missing or where assumptions made by Ms. Expert Accountant were either wrong or inaccurate. I have outlined some of the evidence in those areas to help you decide if you wish to assess a number other than that given by Ms. Expert Accountant in any of those years.
[327] We have heard from the lawyers with respect to their views on the appropriate ranges. Plaintiffs’counsel suggests you award an amount of $90,000 for Patient passenger. This is the amount Ms. Expert Accountant calculated minus the adjustment for 1906, 1907 and 1908. Plaintiffs’ counsel suggests you award $300,000.00 for Plaintiff Driver’s past loss of income.
[328] Defendant’s counsel suggests you award no amount to either Mr. or Patient passenger under this heading of damages. I will not repeat what he said to you in his closing submissions but in general Defendant’s lawyer has a concern about what he says is missing or inaccurate information related to Mr. and Patient passenger’s income during the period from the accident to this trial. He also raises credibility issues with respect to Patient passenger including the difference in her evidence at trial and what she told Ms. Expert Accountant about her work history.
[329] As I have said to you before, Ms. Expert Accountant’s calculations are based on certain assumptions which you have to decide to accept either fully, partially or not at all.
[330] Once you have made your decisions about Mr. and Patient passenger’s likely earned income and actual earned income to the date of trial and applied Ms. Expert Accountant’s formula you will have answered Question 8 for Plaintiff Driver and Question 11 for Patient passenger.
C. Mr. and Patient passenger’s Future Loss of Income Claim
[331] Again you cannot assess this loss with absolute certainty and mathematical precision. This question requires you to predict to some extent the future and you are required to do that to the best of your ability on the evidence you have heard.
[332] The onus rests on the plaintiffs to prove the loss of future income, but it is not a loss which must be proven precisely, that is, in an exact dollar and cent figure. The onus is not on the plaintiffs to prove on the balance of probabilities that his or her future earning capacity will be lost or diminished. The onus is a lower one. Accepting that it is a lower standard than a balance of probabilities, you may wish to consider whether there is a reasonable chance that Mr. and Patient passenger will have a future loss of income. This means that future contingencies based on cogent evidence may be considered by you even if they are less than probable but as long as they are substantial. If Mr. and Patient passenger have satisfied you on the evidence that such a substantial chance of loss of income in the future exists, they will be entitled to damages under that heading.
[333] The higher or more substantial the chance or risk of Mr. and Patient passenger suffering such a loss, then the higher the award they should receive. However, in arriving at your assessment under this heading you should exclude from your consideration any remote, fanciful or speculative possibilities.
[334] There are a number of contingencies and uncertain factors to which I will refer shortly which you should consider in determining the prospects and potential of Mr. and Patient passenger to earn in the future if the accident had not happened. Those contingencies and uncertain factors make it impossible for you to calculate precisely the future lost earnings. What you are required to do is to arrive at a lump sum figure that will fairly and reasonably compensate Mr. and Patient passenger for their future loss of earning capacity if you find that reasonable. It is up to you to assess that amount on the basis of the evidence.To assist you in arriving at this figure Ms. Expert Accountant provided calculations using different scenarios for Mr. and Patient passenger.
Plaintiff Passenger Future Loss of Income
[335] Since Patient passenger’s employment future cannot be predicted with certainty, Ms. Expert Accountant provided three different scenarios based on a forced early retirement at either five years, three years or two years earlier than planned. Ms. Expert Accountant assumed that positive and negative future contingencies such as disability or earning a higher income than expected would offset one another. In deciding what retirement ages to use, Ms. Expert Accountant spoke with Patient passenger and her counsel, reviewed her income history, the report from Dr. Brody and referred to statistics on how long disabled people work and live.
[336] Ms. Expert Accountant assumed that Patient passenger’s pre-accident earning capacity would be $25,000. This is the inflation adjusted gross income number which started out at $20,000 in 1904 (from the Past Loss of Income Scenario). Subtracted from that number is Patient passenger’s current earning capacity based on her latest Macy’s hourly wage or $19,500. This results in an annual income loss (as a result of Patient passenger’s injuries) of $7,000. A multiplier is then used to determine the present value of Patient passenger’s future income loss from November 17, 1917 to age 60, 62 and 63. Using these scenarios, the present value of Patient passenger’s future loss of income would be $100,000 if she retired at age 60, $110,000 if she retired at age 62 and $120,000 if she retired at age 63.
Plaintiff Driver Future Loss of Income
[337] Since Plaintiff Driver’s employment future cannot be predicted with certainty Ms. Expert Accountant used retirement age scenarios of age 65 and 68. In deciding to use these scenarios Ms. Expert Accountant gathered information from Plaintiff Driver’s Notices of Assessments and his income and expense reports from 1901 and 1902, discussions with Plaintiff Driver and his counsel directly, statistics about retirement ages and Dr. Cody’ report. The same issues with respect to the offset of negative and positive contingencies mentioned with respect to Patient passenger also apply to Plaintiff Driver. Plaintiff Driver’s evidence at trial was that he had expected to work well into his 60’s but he foresees his pain increasing as he gets older.
[338] Ms. Expert Accountant used a pre-accident earning capacity of $75,000. This was the inflation adjusted gross income earning capacity which started at $60,000 in 1904 as per the past loss of income report. Deducted from that is his residual earning capacity based on his estimated 1915 income or $55,000. The annual income loss is therefore $20,000. A multiplier is applied to the annual income loss to calculate the present value of Plaintiff Driver’s future loss of income. Using the two scenarios mentioned above, Plaintiff Driver’s future loss of income would be $300,000 if he retired at age 65 and $340,000 if he retired at age 68.
[339] Keep in mind that Ms. Expert Accountant assumed that Plaintiff Driver received no collateral benefits from his insurance company. This assumption was incorrect but does not affect your calculations. Also, Ms. Expert Accountant assumes that Plaintiff Driver will work at a reduced capacity in future. You may wish to consider the letter put to Plaintiff Driver dated January 16, 1904 from Big Boss Lady, CEO of Specialty Cards Ltd. indicating that the company was beginning to get back to full production and sales within five months of Plaintiff Driver’s accident and that the company suffered severely with his absence due to the accident.
Future Loss of Income – Summary
[340] Keep in mind that it is up to you to determine whether you will accept some, all or none of the assumptions on which Ms. Expert Accountant’s reports were based. Ms. Expert Accountant was clear that she had done no independent investigation to test the accuracy of the assumptions she was asked to make. Ms. Expert Accountant was not asked to perform those independent assessments but rather to provide evidence to assist you in valuing Mr. and Patient passenger’s future loss of income once you have reached your own conclusions regarding how Mr. and Patient passenger’s future earnings would be affected by the accident.
[341] You will also want to consider the expert evidence with respect to the extent to which any impairments suffered by Mr. or Patient passenger will affect their ability to continue with gainful employment.
[342] You will recall the evidence of Dr. Cody who testified that the damage to Plaintiff Driver’s left shoulder and knee is serious and permanent and the loss of function will affect his work. Dr. Dolittle did not agree. He did not opine that Plaintiff Driver had suffered any impairment. If he had impairment, it was not serious and would not affect his job or require him to take early retirement.
[343] Dr. Able concluded that Patient passenger did not suffer any significant, permanent or severe impairment that would interfere with her employment. Dr. Smith came to the same conclusion. However, Dr. Gally concluded that the combined effect of the two accidents suffered by Patient passenger result in her being unable to perform the essential tasks of her employment and her work limitations are likely to continue.
[344] Once you have arrived at what you consider to be a fair present value lump sum figure for Mr. and Patient passenger’s future loss of income you will then wish to consider whether that sum should be decreased or increased because of positive or negative contingencies. Positive contingencies would include valuing any employer paid benefits or the possibility that Mr. and Patient passenger’s income could be higher than estimated because of such things as bonuses. Negative contingencies include the possibility that even without the accident Mr. and Patient passenger’ s participation in the work force would have been reduced or cut short because of illness, disability, family responsibilities or unemployment. Before adjusting your award for a contingency you must be satisfied that the occurrence of the contingency is a realistic one as opposed to a speculative possibility.
[345] You may also wish to consider the submissions on counsel as to what they think the ranges in this area should be. Of course their submissions are not evidence but it may give you some perspective. Plaintiff’s counsel is seeking a range of X for Mr. and Patient passenger. The plaintiff’s rely on Dr. Ables’ and Dr. Cody’s opinion that they suffered permanent serious injuries which will reduce their future income earning capacity.
[346] Defendant’s counsel asked that you award nothing in this regard. His view is that Mr. and Patient passenger will not suffer future losses and that they suffered no past losses. The defence position is that the evidence with respect to past and future loss of income is not reliable. Patient passenger in particular has given inconsistent testimony about what she was doing by way of employment during what years. For example, she told Dr. Able she was working full time for Specialty Cards Ltd. in 1911 when she left that employment in 1908. She told Ms. Expert Accountant she was not working at all in 1906-1908 when she working full time for Specialty Cards Ltd..
[347] To summarize and based on Ms. Expert Accountant’s calculations, if you decide to award any future loss of income to Patient passenger you could award $110,000 if you find she would retire at age 60, $130,000 if you find she would retire at age 62, or $140,000 if you find she would retire at age 63. If you decide to award Plaintiff Driver any future loss of income to Plaintiff Driver you could award $300,000 if you find he would retire at age 65 or $340,000 if you find he would retire at age 68.
[348] You may decide to award a different number than the amount suggested by Ms. Expert Accountant because of contingencies or award nothing if you do not agree with the assumptions relied upon by Ms. Expert Accountant; if you do not accept the plaintiffs’ evidence about their injuries or their work; or if you accept any of the experts’ evidence about the plaintiffs’ injuries and how they have and will affect their work.
[349] After giving due consideration to all these matters you should then arrive at what at least five of you find to be a fair and proper amount for these possible future losses. Once you have arrived at an amount, if any, for future loss of income for Patient passenger you will answer question 12 on her question sheet. Once you have arrived at an amount, if any, for future loss of income for Plaintiff Driver you will answer question 9 on his sheet.
D. Future Housekeeping and Maintenance
[350] As a result of Mr. and Patient passenger’s injuries they may not be able to do things they used to do both inside and outside the home.
[351] Patient passenger did all the inside housework prior to the accident. After both accidents she needed help with heavy housework. Outside cleaners were hired to do the heavy work. Plaintiff Driver testified that this cost $85 per visit and continued once or twice a week for three years. There were no receipts introduced into evidence or any other corroboration of the amounts expended for outside cleaning services.
[352] You may recall Dr. Able’s evidence. He testified that Patient passenger’s left shoulder issue was not related to Accident Two and that it did not cause any impairment that would prevent Patient passenger from engaging in activities of daily living. This was also Dr. Smith’s opinion. Dr. Brody disagreed. He opined that Patient passenger’s left should injury was caused by the accident and would limit her ability to do household work. This was becaue she suffered from pain flare ups and had pain when doing repetitive forward bending and lifting.
[353] You may recall that an Occupational Therapist in home assessment was done in relation to Patient passenger within a week of the accident (exhibit 7). The assessment indicated that she required $824 of monthly assistance for household work for four weeks. This did not sway Dr. Smith’s opinion that by the time she saw Patient passenger in October 1903 she was feeling better and did not complain that she was unable to do housework. Based on Dr. Smith’s conclusions, Patient passenger had no impairments which would prevent her from doing the same type of housework she did prior to the accident. This does not mean she would not experience some pain, it means that she was not medically limited in doing such tasks.
[354] Plaintiff Driver testified that prior to the accident he did all of the outdoor maintenance including grasscutting, snow shovelling, leaf raking, taking out the garbage, etc. However, you may also recall his evidence that he had hired people to do most of these chores for him since before the accident and he therefore only did them occasionally or had his children do them for him now that they were older. There was no evidence about the cost of this service.
[355] Plaintiff Driver continues to take out the garbage with the assistance of a garbage bin on wheels supplied by his insurance company.
[356] You may recall that Dr. Cody testified that Plaintiff Driver’s symptoms were related to the accident. His opinion was that Plaintiff Driver had permanent physical limitations resulting from his injuries which would make it difficult for him to do heavy outdoor maintenance.
[357] Dr. Dolittle did not agree with Dr. Cody. He found no permanent knee or shoulder injury that was related to the accident. Dr. Dolittle’s conclusion was that Plaintiff Passenger’s knee and shoulder issues were either pre-existing or simply as a result of the natural aging process. Therefore, there was no medical reason why Plaintiff Driver would need assistance with housekeeping or outdoor maintenance.
[358] Members of the Jury you must now review all of the evidence relating to the costs of housekeeping and maintenance for Mr. and Patient passenger. You will then be in a position to answer question 3 for Patient passenger and question 9 for Plaintiff Driver.
PART IV FINAL INSTRUCTIONS
[359] This is the end of my charge to you and I have some final brief instructions to give you before I ask you to retire and consider your verdict. When you go to your jury room, it is your duty to consult with one another, and to deliberate with a view to reaching a just verdict based on the facts as you find them and on the law as I have explained it to you. You will be given the exhibits so that you may consider them in your room.
Charge should be considered as a whole
[360] When you retire to deliberate, you must consider my instructions as a whole. Do not single out some parts and ignore others. While I have set out the general way in which the instructions will be given, you should keep in mind that this arrangement has nothing to do with the relative importance of what I tell you. The same thing applies if I repeated an instruction or told it to you again in a different way. The repetition is to help you better understand the concept — not to emphasize it in comparison to the other parts of the charge.
[361] After I have concluded my charge and you have retired to consider your verdict, it is the practice of the court to invite counsel to make their submissions as to any additional charge they consider necessary. If I decide to recall you, there is always the danger of you placing undue emphasis on what I might say on your recall. You must not do that. You will consider what I might say then with what I am saying now as one complete instruction. If I have overlooked something, treat any further instructions as part of this whole charge. If I have to correct something, it, of course, replaces whatever I say now. Even though there is the possibility of being recalled, I do not wish that to interfere with you starting your deliberations. That is, I do not wish you to wait in the expectation that you may be recalled.
How should jurors approach their task
[362] When you retire to your jury room I would ask that you first select a foreperson of you have not already done so. He or she will preside over your discussions. This person should give every juror an opportunity to state his or her views but should also try to keep the discussion from wandering or being too repetitive on any one point. You may take with you the copies of the questions that you are asked to answer so that you may consider them together, but your answers are to be recorded by your foreperson on his or her copy. When you have arrived at a verdict, please advise the court staff and the court will be convened. Your foreperson will be the one to announce your verdict to the court.
[363] The attitude and conduct of the jurors at the outset of their deliberations are of the greatest importance. I suggest that you avoid expressing too definite an opinion in the early stages of your deliberations. If you listen calmly to the arguments of your fellow-jurors, and put forward your own views in a calm and reasonable way, you will be able to arrive at a just and proper verdict.
[364] In dealing with this case I would ask that you deal with it in the same manner as you would expect an honest and impartial judge to decide it. Do not take a dogmatic position. Keep an open mind. Listen in a calm and impartial manner to what is said by your fellow jurors, and put your own views forward in a reasonable way. You must set aside all feelings of sympathy, prejudice or passion. Justice must be administered fairly and impartially. Remember, you are judges – you are not advocates for one side or the other.
[365] Your deliberations are secret. This secrecy is to ensure that you may have a full and frank discussion in complete confidentiality. You may, of course, discuss the case after it is over, but only what happened in the courtroom, not what happened in the jury room.
[366] I ask you now to retire to your jury room to consider your answers to the questions that have been posed. As you have already been told, you are required to answer a series of questions. In answering the questions you must be unanimous. All five of you must agree on each answer.The heart of the jury system is a group decision by jurors acting reasonably, considering each other’s views of the evidence fairly, and bringing their good common sense to bear.
[367] If after you retire you require any further instructions from me on any point, you need only indicate to the deputy who will be waiting outside of your jury room. She will notify me so that you can have the question answered in court. If there is anything that you are not clear about, I will be available to answer your questions. If you have any questions, would your foreperson please put them in writing? Please be aware, however, that if you choose to ask a question, that means that I must first convene court, and seek the submissions of counsel as to how best to answer it. Such a process will take some time, and so if you can resolve it yourselves without a question, you may wish to do so. If you cannot resolve it, then please put the question in writing and give it to the court staff, who will bring it to me.
[368] I want to express my sincere appreciation for your commitment to this process. I know that this has been a real interruption to your own lives and your dedication is to be commended. Your attention and timeliness throughout this trial has been noted by me and is appreciated.
[369] I also want to extend my appreciation to the lawyers. Members of the jury, you and I have had the benefit of skillful, well prepared and experienced lawyers in this case. We have benefited from their efficient and professional presentation of the evidence.
[370] I ask you now to retire to your jury room to consider your answers to the questions.