J. Q.B. A.D. 1991 No. 4813 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MADELON SMID and ROBERT ROOKE and FRANK BIRD DEFENDANTS Reynold A. Robertson and Tracy McManus for the plaintiff Jennifer Bailey for the defendants JUDGMENT KLEBUC J. February 7, 1995 Ms. Smid seeks judgment for damages she suffered as consequence of Mr. Rooke's negligent operation of the motor vehicle owned by Mr. Bird. All of the elements of Ms. Smid's claim have been resolved with the exception as to whether Ms. Smid's injuries were caused by Mr. Rooke's negligence. Theparties propose to resolve the issue of causation by havingthis Court answer the following question:Did the motor vehicle accident cause or contribute to any ofthe plaintiff's injuries or damage? BACKGROUND FACTS Ms. Smid is 46 years of age and her principal occupations are that of writer and home maker. Her claim arises out of motor vehicle collision that occurred on public thoroughfare within the City of Saskatoon on February 4, 1991 (hereinafter called the "collision"). On this date Ms. Smid was driving 1983 Cierra Cutlass Oldsmobile which she had stopped in line of traffic near controlled intersection when 1986 Hyundai Pony motor vehicle owned by Mr. Bird and operated by Mr. Rooke struck the rear bumper of the Cierra. The impact of the collision jarred Ms. Smid and her passenger, and caused loose objects sitting on the seats of the Cierra to fall to the floor, but caused no visible physical damage to either vehicle. Ms. Smid suffers from chronic condition which makes it uncomfortable for her to distribute her upper body weight equally between her left and right buttock while seated in motor vehicle. To avoid discomfort, she turns her body slightly to the left in order to place disproportionate amount of her body weight on her left thigh and left buttock. At the time of the collision she was sitting in such position in the driver's seat of her vehicle and had both hands on the steering wheel. Within hours following the collision, Ms. Smid experienced back pain for which she sought immediate medical treatment. She continued to experience pain and discomfort for protracted period and consulted numerous medical practitioners for treatment of her problems. will discuss the nature of medical consultations and the treatments prescribed only to the extent they are relevant to the issue of causation. The defendants submit the pain and discomfort experienced by Ms. Smid relate to pre-existing injuries and to two mishaps that pre-date the collision. The first of these events occurred in mid-January, 1991 while Ms. Smid was visiting third party in Edmonton, Alberta. On this occasion she "pulled something in her right hip" while moving large wardrobe box (hereinafter called the "box event"). On this occasion she experienced considerable pain in her right hip and lower back but she refrained from seeking medical advice until she returned to Saskatoon on January 18, 1991. On this date she arranged for an appointment to see Dr. Alana Danilkewich, her family physician, on January 28, 1991, such date being the earliest date on which Dr. Danilkewich was available. Shortly before January 28, Ms. Smid slipped and fell to the ground while playing with young children (hereinafter called the "fall event"). While Ms. Smid appeared not to have clear recollection of such event, Dr. Danilkewich's notes covering her examination of Ms. Smid on January 28 confirm that Ms. Smid complained of back pain and pain in her right buttock as result of the fall event and that Ms. Smid could not travel in motor vehicle as result. During the examination, Dr. Danilkewich conducted series of neurological examinations including flexing test, sensation test, strength test, range of motion test, gate test and straight leg test and observed straightening of the back, some tenderness over the right sacroiliac joint, and pain primarily in the right sacroiliac joint. She diagnosed the condition to be pain in the right sacroiliac joint with evidence of muscle spasm in lower back and then referred Ms. Smid to Dr. Michael Sax for chiropractic treatment. In his medical report dated October 4, 1991 (exhibit P-2a), Dr. Sax confirmed that he attended on Ms. Smid and diagnosed her condition as "lateral sacroiliac joint dysfunction" which he treated with three sessions of spinal manipulation. In his report he comments that the manipulation settled much of her lower back pain. Ms. Smid confirmed that shortly after the treatments her pain and discomfort quickly subsided to the point where she could undertake normal activities. Following the collision, Ms. Smid testified she experienced pain in her lower back immediately after the accident and because Dr. Danilkewich was not available, she immediately consulted Dr. Fanner who arranged for her spinal column to be x-rayed. In his medical report dated September 27, 1991 (exhibit P-2b), Dr. Fanner confirmed that the x-rays taken showed no evidence of fracture and that in the absence of x-ray findings, he was of the view the injuries sustained were those of "muscular and ligamental strain, undoubtedly more severe in Ms. Smid's case because of her pre-existing sacroiliac problems". The next day, being February 15, 1991, Ms. Smid consulted Dr. Sax who examined her and found that she had "persistent dysfunction of the left sacroiliac joint" which he treated by series of manipulations of such joint. In his medical report he confirmed that he last saw Ms. Smid on February 25, 1991, at which time no sacroiliac joint dysfunction was evident. Ms. Smid's pain persisted. Therefore, she consulted Dr. Danilkewich on March 8, 1991. Dr. Danilkewich confirmed she examined Ms. Smid on March 8th and observed: straightening of the curvature in her spine due to tightness in her back muscles; that Ms. Smid could only bend forward to within one inch from the floor; change in sensation to touching on the right side of her body; normal reflexes; straight leg raises were limited to 80% rather than 90%; muscle spasms over entire back rather than only on right side; and pain on left side of body rather than the right side as before. Based on her examinations and clinical experience Dr. Danilkewich opined that the lack of sensation indicated nerve injury or continued nerve injury, or that this disc may have herniated and was pushing against the nerve root. However, the diagnosis recorded in her notes at the time of Ms. Smid's complaint is that of "lumbar sprain" for which she prescribed physiotherapy treatment and Moltrine. Despite her alleged pain and discomfort, Ms. Smid accompanied her husband on skiing trip to Kalispell, Montana, where she skied for several days. While skiing, she fell on one occasion and shortly thereafter she had to stop skiing due to back pain. On her return to Saskatoon she continued with physiotherapy treatments and experienced some temporary relief. On March 27, 1991, Ms. Smid was again examined by Dr. Danilkewich who noted that her leg flexion had returned to 90ï¿½ angle; that her back muscles were less tender; and that her overall condition had markedly improved. She did not revise her earlier diagnosis of lumbar sprain with the possibility of nerve damage. Ms. Smid next attended on Dr. Danilkewich on April 4, 1991, with complaint of back pain. On this occasion Dr. Danilkewich notes that Ms. Smid is writing four hours day and is experiencing pain in the lower lumbar; that her ability to flex is reduced to 75%; that her sacroiliac joint is tender; and that she can raise her legs to 90%. Dr. Danilkewich attributed the lower back pain to Ms. Smid having increased her work load and having discontinued the physiotherapy treatments prescribed earlier. While Ms. Smid consulted Dr. Danilkewich on various occasions subsequent to April 4, the next major attendance was on July 24, 1991, when Ms. Smid complained of tingling sensation in her right foot. During her examination of Ms. Smid, Dr. Danilkewich observed more muscle spasm; tenderness on the right side of her body; an inability to do straight leg raises; and limited back bending. Her diagnosis was "right sided sciatica". Dr. Danilkewich prescribed muscle relaxant called "Flexoril" and referred Ms. Smid to Dr. Dust, an orthopaedic surgeon. Dr. Dust in medical report dated February 29, 1991 (exhibit P-2f) reports as follows: On examination at that time, she moved around with mild to moderate amount of difficulty. She walked with limp and stood with list. She had decreased range of motion in her back. Straight leg raising was positive on the right side at 40 degrees. Cross straight leg raising was positive at 50 to 60 degrees. There was decreased sensation in both the right L5 and S1 dermatomes. Motor strength was correspondingly weak in the L5 distribution with weakness of extensor hallucis longus and tibialis posterior. The right calf musculature was smaller in circumference than the left by cm. X-rays of the pelvis and lumbar spine were normal. My clinical impression at that time was that she was suffering from disc protrusion with right L5 radiculopathy. The picture was somewhat clouded by her previous history of weakness in her right leg raising the possibility that some of these findings were chronic. At that point she had received two courses of physiotherapy and was encouraged to continue on with the exercises as she appeared to be improving. She was seen again August 26th, 1991. She found that the back pain was much improved although it could still be quite severe at times. The leg pain, however, was still present and, if anything, seemed to be getting worse. The pains had flared up two days previously and she started to notice numbness in her left 2nd and 3rd toes. Physical examination at that time was basically unchanged although in addition there was decreased sensation in the left 2nd and 3rd toes. As she was not improving, CT scan of the spine was arranged. The CT scan report was that of slight disc bulging at L4-5, however, on reviewing this there seems to be discreet central L4-5 disc herniation, which is in keeping with her clinical situation. Dr. Dust was not called at trial nor did he express an opinion as to the cause of Ms. Smid's problems in his medical report which makes no mention of the box event or the fall event. At trial Dr. Danilkewich, Dr. Gordon Wyant, Mr. Carl Shiels and Dr. Lawrence M. Elson testified as expert witnesses. Each of them expressed an opinion as to the cause of Ms. Smid's problems. Since the opinion of Dr. Elson contradicts those rendered by Dr. Danilkewich and Dr. Wyant, propose to discuss the qualifications of each expert and the basis for their respective opinions. Dr. Danilkewich is member of the College of Physicians and Surgeons for the Province of Saskatchewan and is certified to practice family medicine, which she has done for period of in excess of 20 years. She also teaches courses in family medicine at the College of Medicine, University of Saskatchewan. During her career she has not participated in any basic research concerning back pain or the causation of back injuries nor has she published on the subject in any recognized medical journal, nor has she undertaken any post graduate studies in the fields of anatomy or neurology. However, she is clinician with many years of experience in treating patients suffering with lower and sacroiliac problems. In preparing to testify she examined no material pertaining to the collision or causation of injuries in low velocity rear-end collisions. Counsel for Ms. Smid put the following question to Dr. Danilkewich: In your opinion as family physician, what event would you look to as precipitating the change in Ms. Smid's condition from January 28 to March 8, 1991? Dr. Danilkewich responded: would assume with the chronology of all the events that it would be the accident of February 14, 1991. Dr. Wyant is licensed medical practitioner and member of the College of Physicians and Surgeons. In addition to taking post-graduate training in anaesthesiology, he has studied and published in the area of pain management. Dr. Danilkewich he has not participated in any basic research relating to the causation of back pain nor pursued post graduate training relating to anatomy or neurology. However, he possesses considerable clinical experience which enabled him to observe the consequences of certain kinds of trauma on different human bodies. Many of these observations he admits were of an anecdotal nature. He likewise has not reviewed the collision in detail nor has he read or studied in the area of the causation of injuries in low velocity rear-end collision. The treatment of pain and not its etiology has always been his primary concern. Based on his examinations of Ms. Smid, review of x-rays, the CT scan report and medical reports provided by Dr. Danilkewich and others, he concluded Ms. Smid's pain involved nerves leading primarily to her right leg. In his opinion the source of the pain could be either Ms. Smid's herniated disc at L4-L5, or an inflammation of the nerve root at the right sacroiliac joint. He opined that if the nerve at sacroiliac joint is irritated, it can cause pain to radiate into the adjoining leg as well as up to the area of the L4-L5 vertebrae in the lower back. In his opinion, the box event or the fall event, or the collision could have given rise to the symptoms Ms. Smid presented. However, because Ms. Smid experienced pain in her right leg and loss of sensation in several toes on her right foot following the collision, but not prior, he concluded some irritation at the L4-L5 area was caused by the collision. He further opined that the collision may have caused the herniation of Ms. Smid's disc at L4-L5, particularly if such disc was unhealthy at the time. In his opinion the force exerted on her body during the collision was sufficient to herniate weakened disc. He produced no calculations or empirical study to support his conclusion. Mr. Carl Shiels was qualified as an expert in the field of mechanical engineering and to limited degree in the field of biomechanics, an area of study that deals with the application of engineering principles to biological material, and specifically with the effect the application of force has on the human body. Mr. Shiels is not medical doctor nor has he any significant training in the area of anatomy or neurology, nor is he qualified to diagnose injuries. Further, he has conducted no basic research or any significant clinical research relating to the causation of injury in the spinal area of the nature and kind before me. However, he is well versed in the application of the principles of physics to the operation and behaviour of motor vehicles while in motion and to some extent, the effect such forces may have on the human body. Mr. Shiels gave two opinions: the first related to the speed of Mr. Rooke's vehicle at the time of impact; the second related to the cause of Ms. Smid's injury. In preparing his opinion regarding speed, Mr. Shiels referred to various technical journals relating to the construction of the bumpers and other material parts of the motor vehicles involved in the collision. He further reviewed the examinations for discovery of Ms. Smid and Mr. Rooke and took into account data published in the July, 1985 edition of Consumers Reports (exhibit D-2 for identification), and the October, 1986 edition of Consumers Reports (exhibit D-3 for identification). These articles principally deal with the ability of the shock absorber mechanism comprising part of the rear bumper of motor vehicles very similar to Ms. Smid's to absorb the force exerted by another motor vehicle striking it. Based on the technical data examined for the vehicles involved, the results published in the aforementioned Consumers Reports and his experience as mechanical engineer, Mr. Shiels opined that the shock absorber mechanism comprising part of the rear bumper of Ms. Smid's vehicle was capable of absorbing the force created by vehicle of the size and type driven by Mr. Rooke at speeds up to eight kilometres per hour without sustaining any damage. Given that Ms. Smid's motor vehicle was stationary at the time of the collision and no damage to its bumper or rear section occurred, he concluded that at the time of impact Mr. Rooke's vehicle was travelling at eight kilometres per hour or less. have no difficulty in accepting Mr. Shiels' opinion in this area given the degree of his expertise as mechanical engineer in the area of accident reconstruction and the research and inquiries he undertook. Mr. Shiels also offered an opinion relating to the causation of Ms. Smid's injury. In preparing his opinion regarding causation he reviewed and relied on the medical reports of Dr. Danilkewich dated April 1, August 27, September 18, October and 23, 1991 and May 3, 1994; the medical report of Dr. Sax dated October 4, 1994; the medical reports of Dr. Fanner dated February 22, and September 27, 1991; the medical reports of Dr. Wyant dated February 13 and 17, 1992; the medical report of Dr. Dust dated February 29, 1992; the medical report of Dr. Majeran dated February 6, 1992; the reports of Sandra Church, physiotherapist, dated May 11 and October 26, 1992. In addition, he reviewed and relied on the data contained in three abstracts of studies conducted concerning low speed rear-end impacts published in several recognized technical journals. The first of such articles is entitled "Analysis of Human Test Subject Kinematic Responses to Low Velocity Rear End Impacts" conducted by Whitman E. McConnell et al (exhibit D-5 for identification) (the "McConnell report"). The McConnell report describes the effect on four volunteer test subjects caused by series of low velocity rear-end collisions. In the McConnell report, the authors conclude, inter alia: The reported results of this low velocity test series suggest compression-tension injury causation mechanism which probably can cause self-limited minor cervical, thoracic and lumbar muscle strains and, possibly, connective tissue and/or vertebral joint micro-contusional injuries and that may account for the discomfort symptoms commonly reported after low velocity rearend collisions. The very mild discomfort symptoms experienced by our three test subjects, after multiple test exposures, indicated that the to kph (4 to mph) struck vehicle test conditions were probably at, or near, typical human threshold for very mild, single event musculoskeletal cervical strain injury. The test results from our small number of test runs and relatively homogeneous test panel [four healthy volunteer males ranging in age from 45 to 56] should be supplemented by further testing. This testing, which should include wider variety of test subjects arranged in different seating positions, various riding postures and restraint system usage, would better define the complete range of expected kinematic responses by the vehicle riding general public to low and very low velocity rearend collisions. The second abstract relied on by Mr. Shiels covers series of tests conducted by D. H. West et al. The abstract is entitled "Low Speed Rear-end Collision Testing Using Human Subjects" (the "West report"). This report deals with the consequences to the cervical spine of occupants in motor vehicle which is struck from behind. The third abstract, entitled "Human Occupant Kinematic Response to Low Speed Rear-end Impacts" (exhibit P-7 for identification), was written by Thomas J. Szabo et al (the "Szabo report"). The Szabo report deals with the effect on the human body of low velocity impact collisions. In the tests conducted, four human volunteers ranging from ages 27 to 58, with various degrees of cervical and lumbar spinal degeneration, were used. Two of the volunteers were male and two were female. Multiple rear-end collisions involving delta velocity of eight kilometres (" of kph") were simulated in which the volunteers occupied the struck vehicle. The term "delta velocity" or V" means the "change in velocity" in the struck motor vehicle following it being hit by another vehicle. The researchers found negligible relative motion in the thoracic and lumbar spines of the human subjects at the time of impact. Based on these tests they concluded the likelihood of significant low back injury for restrained occupant in rear-end impact with of kph or less is remote. Of particular significance is that none of the volunteers who participated in the study complained of any orthopaedic or neurological symptoms, nor were any abnormal findings noted at the time of the pre-test orthopaedic examination but following two rear-end impacts, one of the volunteers reported transient minor neck stiffness the morning following the first test. Mr. Shiels opined that biomechanical injuries are caused by one part of the anatomy being forced to move against another part in an abnormal manner. Based on the McConnell, West and Szabo reports and his own analysis, Mr. Shiels concluded the uniform support provided to Ms. Smid's spinal column by the seat of her motor vehicle, regardless of how she sat, prevented any part of her back to move against another part and thereby give rise to the subject injury. In his opinion, the seat on which Ms. Smid sat would have absorbed most of the force created by the impact with inconsequential rebounding by the seat. He speculated the fall event had greater potential for injury than the collision. have not considered his speculation in these reasons for judgment. In view of the evidence of Dr. Elson, need not rely on Mr. Shiels' opinion as to whether the forces in question could have caused injury to Ms. Smid's back. In my opinion Mr. Shiels is not well qualified to give an opinion as to causation of injury in the human spine because of its complexity and his very limited knowledge of human anatomy and neurology. Further, his research appears to be limited to reviewing the McConnell, West and Szabo reports which may have been prepared by researchers having limited knowledge of human anatomy. Dr. Elson, who described himself as clinical and forensic anatomist, was called to give evidence on behalf of the defendants. He holds doctorate of philosophy in human anatomy, has written extensively regarding spinal injuries and soft tissue damage and their causation in recognized medical journals, has taught anatomy at several medical colleges in the United States, and has consulted with medical doctors in the treatment of patients. His consultations include the review of x-ray films and CT scans for the purposes of determining what is anatomically wrong with patient. He describes the field of anatomy as substrate of medicine that specializes in determining how the human body works rather than on treating patients and their symptoms. He has also taken extensive courses in the area of biomechanics. He is member of the American Academy of Forensic Science, the Society of Forensic Engineers; the Association for the Advancement of Automotive Medicine; the Society of Automotive Engineers; and the American Back Society. He has testified in excess of 50 times and has read most if not all of the medical and mechanics literature pertaining to injury of the lower back. accepted his qualification as an expert in the field of forensic anatomy as it applies to anatomical principles. In preparing his opinions Dr. Elson reviewed: medical summary prepared by the Saskatchewan Department of Health for the purpose of getting an overview of the extent of the medical treatments received by Ms. Smid but not as to any particular injury or management; the medical reports reviewed by Mr. Shiels; the examinations for discovery of Ms. Smid and Mr. Rooke for the purpose of getting background information rather than specific data for the purposes of his opinion; the outpatient report from Royal University Hospital dated March 4, 1993 regarding its treatment of Ms. Smid; the McConnell report, West report and Szabo report including videotapes and measurement taken in connection with the McConnell report; SGI accident reports covering the collision; and report prepared by Mr. Shiels and delivered to Dr. Elson few days prior to the trial. Dr. Elson provided number of opinions. He first opined that the collision occurred at of kph or less and thereby confirmed the opinion of Mr. Shiels. He then opined that where healthy person is seated in the passenger seat of motor vehicle which is struck from behind by another vehicle at speed of not greater than kph, the lower back of such person is not susceptible to injury. In support of his opinion he testified that in such circumstances the struck vehicle, in matter of milliseconds, accelerates its seat and head rest into the body of the person occupying the seat with the result that the body compresses the cushioning and padding forming part of the seat. Upon full compression of the seat padding, the entire seat structure bends back until the vehicle stops or the body and the vehicle commence travelling at the same speed. In either event, the seat rebounds to its pre-collision position but the rebound is of an inconsequential nature from an injury causation point of view, according to Dr. Elson. Dr. Elson advised that he based his opinions on review of 100 or more cases involving rear-end collisions, his clinical observations, the review of files of numerous persons involved in such collisions and the findings reported in the McConnell report, West report, and Szabo report. These studies he noted collectively constitute approximately 60% of the current research in the area. While he generally concurs with the finding in such reports, he disagreed with the conclusion of McConnell that micro- contusion in the cervical spine might occur in low velocity impact. In his opinion such injuries did not occur in the tests conducted by McConnell and will not occur in low velocity rear-end collisions. With respect to Ms. Smid, he opined that she could not have sustained the injury complained of notwithstanding her unusual seating position because her back was uniformly supported by the seat of her motor vehicle, and therefore no part thereof could move against another part and thereby cause an injury of the kind noted by Ms. Smid. Hence, the collision did not cause or contribute to any of Ms. Smid's injuries or damage. He did admit that nerve root can be irritated if encased in degenerated spine, but expressed the view that Ms. Smid's spine had not degenerated to the degree necessary to produce such an injury. During cross-examination he admitted that many persons involved in low velocity rear end collisions complain of lower back pain and that he is unable to explain the cause of such pain. Dr. Elson further opined that the symptoms presented by Ms. Smid relate to the pre-existing conditions identified by Dr. Danilkewich, Dr. Sax and Dr. Fanner and not to the collision. In his view there is way of differentiating the pain allegedly arising from the collision from the events that transpired prior thereto. He further observed that the fall event had greater potential of causing injury to Ms. Smid than the collision because of the substantial change in acceleration caused by such fall. He equated the impact to be equivalent to the human body falling distance of ten inches. gave very little weight to such observation in the absence of detailed calculations and full particulars of the fall involved. Faced with competing and contradicting expert opinions, the Court must decide which of the opinions, or which parts thereof, it is prepared to accept. With respect to the question of the speed of the motor vehicle driven by Mr. Rooke at the time of impact, accept the evidence of Mr. Shiels. therefore conclude Mr. Rooke's vehicle was not travelling more than eight kilometres per hour when it struck Ms. Smid's vehicle. With respect to potential injuries that might arise to the spinal column of person occupying seat in motor vehicle rear-ended by another motor vehicle having of kph, give very little weight to Mr. Shiels' opinion thereon. But do accept without any hesitation Dr. Elson's opinion that healthy person properly seated in the driver's seat of motor vehicle which is struck in the rear by another vehicle travelling at not more than eight kilometres per hour will not sustain any injury to his or her lower back because the lumbar spine is evenly supported, thereby prohibiting the movement of any one part of the lumbar spine against the other. am also well satisfied that Ms. Smid had experienced considerable pain and discomfort in her lower back, her right sacroiliac joint and her right leg before the collision. am further satisfied Ms. Smid suffered from other pre-existing medical problems prior to the collision and consequently was not healthy person. For example, she had weak stomach muscles which Dr. Danilkewich opined made her susceptible to back injury. am further satisfied that she had weak or degenerated disc at L4-L5 and recurring sciatic condition prior to the collision. These conditions would flare up together or separately from time to time causing pain of the kind noted by Ms. Smid but would respond favourably to chiropractic and physiotherapy treatments. find that at the time of the collision both conditions were dormant. believed Ms. Smid when she said that she felt crunch in her lower back at the time of collision and persistent lower back pain. also accept Dr. Danilkewich's observation that Ms. Smid presented with different symptoms following the collision and that those symptoms were referrable to nerve irritation at L4-L5. While a normal healthy person may not haveexperienced a lower back injury in the collision, I amsatisfied that because of her weakened state of health and herpoor sitting position, the collision did contribute in amodest manner to Ms. Smid's injury and damage. In so doing accept the evidence of Dr. Danilkewich over that of Dr. Elson or Mr. Shiels because as the attending physician, she was in the best position to observe the symptoms Ms. Smid presented both before and after the collision and to evaluate the same from clinical perspective having regard to Ms. Smid's unique problems. In summary therefore the answer to the question posedis "yes".
The Plaintiff commenced these proceedings seeking to recover damages for personal injuries alleged to have been suffered in a motor vehicle accident. The Defendants claimed that the Plaintiff's condition related to 2 pre-existing injuries. The only issue which the Court was asked to resolve was whether this accident had caused or contributed to the Plaintiff's injuries. HELD: The question posed was answered in the affirmative. While a normal healthy person might not have been injured in this low speed rear-end collision, the Court was satisfied that, because of the Plaintiff's previous injuries and poor sitting position, the collision did contribute to her current condition in a modest manner.