J. 1990 S.H. No. 72685 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: MARIE GOODFELLOW and DERIK BRUCE MacDONALD DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Felix A. Cacchione on November 14, 15, 16 17, 1994 DECISION: February 14, 1995 COUNSEL: R. Ritchie Wheeler, solicitor for the plaintiff Robert M. Purdy, solicitor for the defendant CACCHIONE, J. This is an action for damages for injuries suffered by the plaintiff as a result of a motor vehicle accident which occurred on May 31, 1988. The plaintiff was stopped on the Cole Harbour Road by flagman to allow piece of heavy machinery to back out onto the Cole Harbour Road. Her motor vehicle was struck from behind by motor vehicle operated by the defendant. The only damage to the plaintiff's motor vehicle consisted of bent bumper, which had to be replaced at cost of $528.61. The defendant admitted liability, and the only issue for this court to determine is damages. At the time of the accident, the plaintiff was pushed forward in her seat and may have hit the steering wheel. Her seat back was not broken, and the plaintiff acknowledges that the accident was not violent impact. Although she felt soreness in her neck, she proceeded to her workplace and worked her full shift that day. It was only later that evening that she began to experience back pains. The following day she visited her family physician complaining of sore neck and back pain. He treated her with pain killers and prescribed rest and heat treatments. On June 1, 1988, Dr. O'Connor, her family physician at the time, referred to her symptoms as severe pain in her neck and worsening of her previous low back pain. The plaintiff was 46 years old at the time of the accident and had been working as Certified Nursing Assistant (CNA) at the Nova Scotia Hospital for approximately nine years prior to the accident. She had worked as CNA at different hospitals since 1960 except for periods when she stayed home to have her children. During the period from 1960 to 1988, the plaintiff worked continuously as CNA on full‑time or part‑time basis except for total of seven years when she was either raising her children or residing in another province. The majority of the doctors who testified, both for the plaintiff and the defendant, agreed that the work of CNA is strenuous and even more so for CNA working at the Nova Scotia Hospital because, at that institution, CNAs often deal with patients who are unruly and hard to handle. Doctor Loane, specialist in physical medicine and rehabilitation, called by the defendant, testified that CNAs have the highest incidence of lower back pain of any occupation. He indicated that they run 30 percent risk of being disabled through work. In his opinion, the chances of CNA working through to retirement is the lowest of all occupations. The plaintiff returned to work and continued working at her normal duties for approximately one month after the accident. She found bending and lifting hard to do and noted stiffness in the morning. Her condition worsened to the point where she had to stop working towards the end of June, 1988. She has not returned to work since that date. Courses of therapy such as physiotherapy, laser treatment, TENS treatment and back braces, have not improved her condition to any great degree. The plaintiff received short‑term disability payments from June to November, 1988, and has been on long‑term disability since November 17, 1988. In December, 1988, the plaintiff began suffering from shooting pains in her legs, although she had had somewhat similar, but not as intense, pains in the same area as far back as December, 1987. The plaintiff acknowledged having had previous back problems as far back as 1975. These back problems caused her to miss some time from work, although not great deal of time from work was lost. However, in 1987, the plaintiff injured her back while at work. The injury, although described as mild back sprain, was of sufficient severity to prevent her from working from August 14, 1987, to January 8, 1988. Upon returning to work, the plaintiff continued her employment after the accident and missed only few days due to the flu and headaches. The plaintiff did admit that in February, 1988, her back began to ache after she had to take patient to the Dartmouth General Hospital and that patient became aggressive. This aggressiveness caused her to wrestle with the patient thereby causing some further soreness in her back. The plaintiff testified that her condition has worsened monthly since the accident. She cannot sit for any extended period, nor can she do what used to be her day‑to‑day activities. For example, grocery shopping must be done in stages since she cannot stand for any extended period. two‑hour trip by car requires her to stop two or three times because of the pain. She can no longer walk any great distance and can only do things for short periods before she has to rest. The plaintiff also suffers from other medical problems such as lung condition, which requires her to use both an inhaler and mist machine, and from chest pains for which she takes medication. She also suffers from high blood pressure for which she also takes medication. The lung condition alone, according to her evidence, would prevent her from working as CNA since she must use the mist machine four times each day with each treatment lasting approximately 15 minutes. This lung condition has been in existence for sometime and has required treatment since 1992. The hypertension has been treated with medication since 1993. The plaintiff suffers from further medical difficulties such as numbness in her left arm and pain in her neck. The plaintiff agreed that, as far back as 1988, her family physician discussed with her change of career due to her back pain. Her physician was, at that time, of the opinion that she would always have this back condition. The plaintiff submits that she could have worked until retirement, although perhaps not in mental institution. According to Roberta Deering, the Coordinator of Personnel Administrative Services at the Nova Scotia Hospital, the plaintiff could have taken early retirement at age 58 under the rule of 80. This would mean retirement in October, 2000. Her full retirement would take place in February, 2007. The plaintiff did testify that she considered retiring when her husband turned 60, which would have made her 56 years old. As previously noted, the medical evidence establishes that it is not uncommon for nurses, and CNAs in particular, to suffer from back injuries. The medical evidence led at trial shows that the plaintiff suffers from an exaggerated angle of the lower spine where it attaches to the pelvis. This exaggerated angle suggests mechanical instability of the spine at this juncture and may also be an indicator of early degenerative changes. According to Dr. Canham, an orthopaedic surgeon called by the plaintiff, the accident of May 31, 1988, aggravated pre‑existing condition in the plaintiffs lower lumbar spine. In 1989 he cautioned the plaintiff about going back to work as CNA and suggested that she look for lighter type of employment rather than undergoing surgical intervention as means of dealing with her difficulties. In August, 1988, the plaintiff was examined by Dr. Shears at the Nova Scotia Rehabilitation Centre. He diagnosed superimposed cervical sprain and some biomechanical instability at the lumbosacral junction which caused her problems in the past. Dr. Shears suggested that the motor vehicle accident precipitated new attack of this lower back problem. His recommendation at the time was that her facet joints in the problem area should be injected with cortisone‑like substance, however, the plaintiff chose not to follow this course of treatment. Instead, the plaintiff chose to wear Harris brace, which was also recommended by Dr. Shears, and to follow course of exercise recommended by him. The defendant argued that the plaintiff failed to mitigate her damages by not agreeing to the cortisone injections. am, however, satisfied from the evidence of Doctors Loane and Yabsley, both of whom were called by the defendant, that such injections would not cure the plaintiff but simply give her some partial symptomatic relief. am not convinced that the failure to proceed with these injections should be viewed as failure to mitigate her damages. What is clear from the medical evidence adduced by both parties is that the plaintiff suffered from pre‑existing condition which was aggravated by the motor vehicle accident. am satisfied that the plaintiff would have developed back problems regardless of the accident because of such things as her age, the mechanical instability of her spine, the strenuous work she performed and, most importantly, her previous back injury. The most serious previous back injury caused the plaintiff to be off work for period exceeding four months. This, in and of itself, speaks volumes about the seriousness of her pre‑existing condition. The medical experts were in agreement that, having suffered previous injury to her back, the plaintiff was of higher risk of suffering further back injury. Dr. Colwell, specialist in physical medicine called by the plaintiff, opined that the plaintiff was suffering from disc degeneration prior to the accident but that the accident speeded up the process which was ongoing in her spine. He agreed that the type of work the plaintiff did added strain to her spine, but he felt that she could have continued working for approximately 10 to 15 years, had the accident not occurred. His opinion on this point was not one which was shared by other medical witnesses called by both the plaintiff and the defendant. Dr. Canham suggested in November, 1989, that the plaintiff should seek some lighter work. Dr. Loane, specialist in physical medicine called by the defendant, was of the opinion that the plaintiff could not have continued with her employment for such long time because she was predisposed to such back injuries due to her anatomical make‑up, the strenuous nature of the work she performed, and her previous significant back injury. Initially when Dr. Loane examined the plaintiff, he believed that she was suffering from disc protrusion, however, after reviewing the results of CAT scan, he revised his opinion and concluded that the plaintiff had disc degeneration. Dr. Loane believed that this process had begun before the motor vehicle accident due to the presence of certain symptoms and the aging process itself. He based his opinion about the disc degeneration on certain cervical spine x‑rays taken in June of 1988. These x‑rays showed degeneration of the cervical spine at that stage. Dr. Loane testified that, if the sole cause of the damaged disc was the accident, he would have expected to see acute pain and radicular signs of nerve irritation within weeks after the accident. He would have also expected to see narrowing of the disc space within period of three to six months after the accident. This narrowing of the disc space would have been accompanied by the onset of bone spurs. Certain risk factors were noted by Doctor Loane as leading to the disc degeneration, These included the plaintiff's occupation as CNA which required strenuous activities such as bending, lifting and managing unruly patients; the presence of mechanical instability in her spine, as noted by the x‑rays and the radiologist's reports; previous back injury, coupled with prolonged recovery period off work; and, finally, return to work while still in pain. Dr. Loane was of the view that the motor vehicle accident itself was not the cause of the disc degeneration but simply one of the factors leading to this. When he examined the plaintiff in 1992, he was of the opinion that, at that point, she was completely disabled. Both Doctors Loane and Yabsley were of the opinion that the plaintiff was going through degenerative changes even before the accident and, therefore, susceptible to having further back problems. In Reid v. Googoo (1993), 119 N.S.R. (2d) 207, Kelly, J. states at pp. 211‑213: "[23] number of decisions of this court, including King v. Briand's Cabs Ltd. and MacDonald (1984), 64 N.S.R. (2d) 210; 143 A.P.R. 210 (Clarke, J.) (as he then was), Dauphinee v. Canada Life Assurance Co. et al (1988), 86 N.S.R. (2d) 101; 218 A.P.R. 101 (Glube, C.J.T.D.), and Bush v. Air Canada (1991), 1991 CanLII 4382 (NS SC), 103 N.S.R. (2d) 308; 282 A.P.R. 308 (Gruchy, J.), adopted the comments of Hallett, J. (as he then was), in Greek and Hillier v. Ernst (1980), 43 N.S.R. (2d) 191; 81 A.P.R. 191 (T.D.), regarding the evaluation of cause where injuries are superimposed on earlier injuries. At pp. 200‑202 he states: '[21] The difficulty in this type of case is that application of the principle that the wrongdoer takes the victim as he finds him really does not answer the question as to whether the victim's present complaint was caused by the defendant's negligence. In attempting to assess damages so as to arrive at fair and reasonable compensation for pain and suffering and disability where there is preexisting condition, the court must first answer that question. On that issue, the victim must prove on balance of probabilities that the present complaint was caused in whole or in part by the wrongdoer's negligence. To answer that question, the court will invariably have to consider the medical evidence to determine whether the victim, because of his pre‑accident condition, would probably have suffered from the present complaint whether there had been an accident or not, If the victim cannot prove that the ongoing complaint was caused in whole or in part by the defendant's negligence, there cannot be an award for damages for the ongoing complaint (I use the term ongoing complaint to mean pain and suffering and/or disability that has continued to the date of trial). This assessment can be particularly difficult in the many cases involving either preexisting degenerative changes in the spine or osteoarthritis in the joints where the victim was symptom‑free before the injury was sustained. As in this case, very often the preexisting condition first manifests itself on x‑rays taken immediately following the injury. Usually the victim's position at trial is stated to the court in simple logic, "I was in good health; then had the accident; now have sore back; therefore the accident caused my present complaint." Very often the medical evidence, including the x‑rays, proves that the victim, although he was unaware of the problem, had degenerative changes in the spine or advanced osteoarthritis before the accident which gives rise to the lawsuit. It seems to me that in most of these cases, despite the victim's apparent logic, the court will have to accept the usually uncontradicted medical testimony that the victim did in fact have preexisting condition and that the damages must be assessed with this fact in mind. [22] Having reached that point, the court, in order to make an award that reflects the pain, suffering and disability, if any, that continues, must then answer the critical question whether the victim has proven that the present complaint was caused by the defendant's negligence and on that issue, it seems to me, the court will generally have to accept expert medical testimony as to the cause of the victim's present complaint rather than the apparent logical conclusions of the victim. In some cases, the medical opinions are to the effect that the preexisting condition was aggravated by the injury and the victim continues to suffer by reason of such aggravation; in such cases the victim must be compensated to greater extent than victim who had no such susceptibility. However, in many difficult cases, the medical opinions go no further than to say that the victim's present complaint was accelerated or aggravated for period of time only by the injury sustained in the accident. In these cases, the victim has failed to prove that the ongoing complaint was caused or aggravated by the wrongdoer's negligence. Despite the fact that wrongdoer takes his victim as he finds him. the victim to be awarded damages to compensate him for the ongoing complaint must make the causal connection between the defendant's negligence and the ongoing complaint and this he must prove on balance of probabilities [my emphasis added]. Where the victim fails to discharge the burden on this issue, he is left at most with damage claim for (1) the pain and suffering he endured for period of time that was more intense than it would have been had he been normal and he must be compensated accordingly; and (2) the ongoing complaint to the extent that its onset was accelerated in point of time by the injury and he must be compensated for this. An award based on these premises will be substantially lower than an award relating to ongoing complaints that can be directly linked to the injury. However, such an award must reflect the principle that the award shall not be reduced because of the victim's "abnormal physical susceptibility" to the injury. The victim must be compensated to the extent that his present complaint was accelerated or aggravated for period of time, by reason of his susceptibility, by the injuries caused by the defendant's negligence. [23] To summarize: Where the victim has preexisting condition, the court, in assessing what would be fair and reasonable compensation to the victim, must determine to what extent the victim's present complaint was caused by the injury sustained in the accident.' On the totality of the evidence presented, I am satisfied that at the time of the accident the plaintiff was undergoing degenerative changes in her spine. These changes, however, did not prevent her from working. It was only after the accident that the degenerative changes were accelerated. I find that the plaintiff has discharged its burden of establishing, on a balance of probabilities, that the described pain problems were caused, or contributed to, by the defendant\'s negligence. am not satisfied that the defendant has established that the plaintiffs back problems were not aggravated by the motor vehicle accident. Accordingly, find that the plaintiffs present complaint was caused, in part, by the defendant's negligence. At page 213 of Reid v. Googoo, supra, Justice Kelly states: "An approach to this area of damage law was also discussed in Linden and Klar, Remedies in Tort (Carswell, 1989), at paragraph 45.1: 'As general rule, the defendant takes his victim as he finds him and is liable for the full extent of the plaintiffs injuries despite the particular plaintiff's preexisting physical or psychological susceptibility to injury. Provided that the plaintiff's preexisting condition is latent weakness or susceptibility (a thin skull) which is made manifest only as result of the defendant's conduct, apportionment between the two causes is not appropriate. However, where the plaintiff suffers from preexisting condition which is an active source of damage prior to the defendant's tortious conduct, the defendant's conduct may be taken as an aggravating factor resulting in an apportionment of damages between the existing condition or source of damage and the second or aggravating source. Thus, where plaintiffs condition was manifest and disabling prior to the injury inflicted by the defendant, damages should be assessed as if the plaintiff's condition at the time of assessment resulted from single cause. The award should then be apportioned so that the damages payable by the defendant constitute only that portion of the total amount assessable in respect to the plaintiffs disability which is fairly attributable to the defendant's tortious conduct.' [24] Here, the court must determine if the plaintiff's preexisting condition was accelerated by the defendant's action and, if so, whether it is temporary in nature. The inquiry is to determine if the continuing total disability would have occurred in any event." The evidence clearly establishes that the plaintiff, because of her age, the type of work she was doing, her previous back injury, the lengthy recovery period from that injury, and her return to the same demanding employment while still in pain, could not have continued in her employment until age 65 or even, in my opinion, to an early retirement at age 58. conclude, on the basis of all of the evidence presented, that the longest time the plaintiff could have worked would have been until age 50; that is, period of four years from the date of the accident. This finding is based, as well, on the fact that the plaintiff was suffering from chronic lung disease which required treatments of such nature as to prevent her from returning to work as CNA. Shortly after this date, the plaintiff also began suffering from such things as high blood pressure and numbness in her arm. As previously noted, the plaintiff was also suffering from degenerative changes in her spine which was evidenced by the cervical spine x‑rays of June, 1988. These changes are not reversible but rather progressive in nature. am satisfied that the plaintiff is totally disabled. As previously stated, am not satisfied that the plaintiff failed to mitigate her damages by not taking cortisone injections. It is clear that such course of treatment would have provided only temporary relief of her symptoms and not cure. Accordingly, the plaintiff is entitled to compensation for her injuries and loss of income up to 1992. She is, as well, entitled to damages for the pain and suffering caused, not only by the lower back injury but, as well, by the whiplash injury to her neck. The whiplash injury to her neck has been referred to as mild whiplash from which the plaintiff has totally recovered. I find that for this injury the plaintiff is entitled to an award in the amount of $15,000. With respect to the lower back injury, I find that the plaintiff is entitled to an award in the amount of $75,000; however, not all of this is attributable to the defendant\'s negligence. I find that the defendant is liable for 33.33 percent of this sum and, accordingly, the plaintiff shall receive $25,000 for her lower back injury. As to loss of income, I find that the plaintiff has lost income in the amount of $102,753.92 for the years 1988 to 1992. The defendant is liable for 33.33 percent of this sum which translates to $34,251 less $3,945.88 for section B benefits paid to the plaintiff. Accordingly, the total amount for loss of income is fixed at $30,305.12. The total award is, therefore, $70,305.12, together with pre judgment interest on the entire amount at rate of 2.5 percent per annum. The plaintiff shall have its costs which fix at $5,875 in accordance with Scale of Tariff A.
The 46-year-old female plaintiff sought damages for injuries suffered as a result of a motor vehicle accident. Her car was stopped by a flagman as a result of highway work when the defendant's vehicle struck her from behind. Awarding $15,000 for the whiplash injury and $75,000 for back injury as general damages. This amount was reduced to $25,000 due to a pre-existing condition. The court was satisfied there were degenerative changes in the plaintiffs spine which were accelerated by the accident. The pain problems were caused or contributed to by the defendant's negligence. An award for lost wages was also reduced by a factor of 33.%.