



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Stevanovic 
          v. Sin,







2009 
          BCCA 11



Date: 20090116

Docket: CA035259

Between:

David 
    Stevanovic

Appellant

(
Plaintiff
)

And

Yong 
    Gen Sin and Dhong Yin Sin

Respondents

(
Defendants
)




Before:


The 
          Honourable Mr. Justice Mackenzie




The 
          Honourable Madam Justice Levine




The 
          Honourable Mr. Justice Tysoe








D. 
          Stevanovic


Appearing In Person




A. 
          Urquhart


Counsel for the Respondents




Place 
          and Date of Hearing:


Vancouver, British Columbia




11 December 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




16 January 2009








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Mackenzie




Concurred 
          in by:




The 
          Honourable Madam Justice Levine

The 
          Honourable Mr. Justice Tysoe



Reasons 
    for Judgment of the Honourable Mr. Justice Mackenzie:

[1]

This appeal is from an assessment of damages for personal injuries 
    sustained in a motor vehicle accident.  The defendants admitted liability.  
    The plaintiff appellant, David Stevanovic, was awarded $35,000 for non-pecuniary 
    damages, $16,026 for past wage loss, and $837.24 for special damages.  His 
    claim for loss of future earnings was dismissed.  He appeals on the ground 
    that the trial judge erred in dismissing the claim for future loss of earnings 
    and made errors in the assessments under other heads of damages.  He also 
    submits that the trial judge erred in the application of the principles of 
    causation to his claim.

[2]

The trial judge accepted that the appellant suffered soft tissue injuries 
    in the accident but she found that his medical problems at the time of trial 
    in 2007 were caused by a degenerative condition of his spine and shoulders 
    and not caused by injuries sustained in the motor vehicle accident.  She concluded 
    symptoms of neck and shoulder pain resulting from the accident would have 
    been resolved within two years at the outside.  In reaching that conclusion 
    she relied on the medical opinion of an orthopaedic surgeon who examined the 
    appellant on behalf of the respondents.

Facts

[3]

The appellant was injured in an accident on 16 December 1998 when the 
    Volkswagen Vanagon he was driving collided in an intersection with the respondents 
    Volvo sedan that was turning left in front of him.  Both vehicles had been 
    travelling at speeds between 20 and 30 kph.  The appellant braced himself 
    against the steering wheel before impact.  He heard his neck make two cracking 
    noises as he was propelled forward in the collision.  The left front bumper 
    area of the appellants vehicle was damaged in the collision, later repaired 
    at a cost of $3,026.99.  The appellant was able to drive his vehicle a short 
    distance to his home after the accident.

[4]

He went to bed when he arrived at home and woke up the next morning 
    stiff and sore in his shoulders and upper back.  He had a headache.  He could 
    not turn his head to the left and experienced numbness on one arm from the 
    mid-arm to the thumb.  He had difficulty sleeping.  Over the next four months 
    he had 31 physiotherapy and three acupuncture treatments.  His symptoms gradually 
    improved.

[5]

The appellant was 57 at the date of the accident.  He was employed 
    as a heavy duty mechanic with Deere-Hitachi.  He was off work for four months 
    after the accident.  He then returned to full-time work and continued until 
    he retired in 2003, after 13 years with the employer.  He claimed that the 
    injuries he sustained in the accident contributed to his retirement three-and-a-half 
    years before his normal retirement date.  His claim for loss of future earnings 
    and loss of pension benefits is based on his early retirement.

[6]

The trial judge accepted the appellants evidence that he has continuing 
    neck and shoulder problems but she found that they were caused by the degenerative 
    condition of his spine aggravated by the physical demands of his work and 
    not related to the injuries sustained in the motor vehicle accident.  Accordingly 
    she rejected the claim for future income loss arising from his early retirement. 
     The appellant contends that she erred in that conclusion and the motor vehicle 
    accident injuries contributed to his forced early retirement.

Issues and Analysis

[7]

The trial judge applied the test of causation outlined in
Athey 
    v. Leonati
, [1996] 3 S.C.R. 458, which she summarized as requiring the 
    appellant to show that but for the negligence of the respondents the injury 
    would not have happened.  She noted that the accident does not have to be 
    the sole cause but must materially contribute to the injury.

[8]

The appellant contends that the trial judge erred in her application 
    of the
Athey
principles to the future earnings claim.  The issue turns 
    primarily on the medical evidence.  The appellant called his family physician, 
    Dr. Frank Beck, and the respondents called Dr. Iain Dommisse, who conducted 
    a medical examination of the appellant on their behalf.

[9]

Dr. Beck noted the degenerative changes of the appellants cervical 
    spine and shoulders but in his opinion the appellants continuing symptoms 
    were consistent with soft tissue injuries resulting from the motor vehicle 
    accident.  Dr. Dommisse disagreed.  His opinion was that the soft tissue injuries 
    suffered in the 1998 accident would have temporarily flared a pre-existing 
    condition resulting from degenerative changes and soft tissue injuries in 
    an earlier 1977 accident.  That flare-up would not have lasted more than 24 
    months and ended before the appellant retired.  The trial judge accepted the 
    evidence of Dr. Dommisse over that of Dr. Beck.

[10]

The appellant contends that there are inconsistencies in Dr. Dommisses 
    opinion letters that make his opinion unreliable.  Dr. Dommisse examined the 
    appellant on 10 July 2006, six-and-a-half years after the accident.  In his 
    report letter of 13 July 2006, he gave his opinion that the appellant sustained 
    a Grade II cervical strain as a result of the accident and that [t]he overall 
    prognosis for this man is good.  He added:

Bilateral 
    shoulder tendonitis is noted in the handwritten notes dated July 24, 1998 
    and x-rays done at that time showed calcific tendonitis.

He was noted 
    to have neck problems with chiropractic adjustments in the handwritten entry 
    dated September 8, 1998.

Additionally, 
    as outlined above, Mr. Stevanovic was involved in a motor vehicle accident 
    in 1977.  His vehicle flipped over at that time and he sustained a neck injury. 
    He was off work for eighteen months following the injury in 1977.

In my opinion, 
    this mans prior history of neck and shoulder problems is likely contributing 
    to his ongoing symptoms.

Additionally, 
    this man has degenerative changes within the cervical spine as noted above. 
     In my opinion, his degenerative changes are contributing to his symptoms 
    predominantly at this time.

The CT scan 
    done for his cervical spine on October 5, 2002 does show right-sided C516 
    foraminai stenosis, as outlined above, and, in my opinion, these changes are 
    likely causing a degree of nerve root irritation and contributing predominantly 
    to his symptoms.

[11]

Dr. Dommisse was asked by counsel to supplement his report and responded 
    by letter dated 8 February 2007 as follows:

Following our telephone conversation yesterday, I confirm 
    that in my opinion, this mans symptoms would likely have been flared temporarily 
    for a period of approximately six (6) to twelve (12) months as a result of 
    the motor vehicle accident of December 16, 1998.  It is likely that as outlined 
    in my letter of July 13, 2006 in the last two paragraphs on page 7, his prior 
    history of neck problems, requiring chiropractic adjustments in September 
    1998 and his previous neck injury as a result of his motor vehicle accident 
    in 1977 is contributing predominantly to his symptoms at this time.

In my opinion Mr. Stevanovic would have been able to 
    continue working for Deere Hitachi until retirement as he stated he would 
    be able to manage this work as a heavy duty mechanic following the motor vehicle 
    accident of December 16, 1998.

[12]

The appellant contends that these reports present conflicting predominant 
    causes of the continuing symptoms and treat the soft tissue injuries from 
    the 1977 and 1998 accidents inconsistently.  The appellant says that Dr. Dommisse 
    opines that the soft tissue injuries from 1977 still contribute to the appellants 
    present symptoms whereas the symptoms of similar injuries in 1998 must have 
    resolved within 12 months (extended to 24 months in his evidence at trial).  
    He argues that there is no objective reason to view similar injuries from 
    the two accidents differently.

[13]

Dr. Dommisses report and supplementary letter are confusing and potentially 
    inconsistent.  The trial judge saw this apparent inconsistency and she questioned 
    Dr. Dommisse for clarification during the course of his cross-examination 
    by the appellant.  Dr. Dommisse responded that the soft tissue injuries from 
    the 1977 accident were significant to the extent that they made the recovery 
    from the 1998 accident soft tissue injuries a little longer.  He maintained 
    his opinion that the appellant was not prevented by his medical condition 
    from continuing to work as a heavy duty mechanic until normal retirement.

[14]

There were difficulties with respect to Dr. Becks opinion as well.  
    The appellant did not become Dr. Becks patient until 2001 and Dr. Beck was 
    unaware of the appellants pre-accident medical history.  The appellants 
    family physician at the time of the accident was not called as a witness or 
    asked to provide a medical-legal report.

[15]

The trial judge concluded (at para 52):

The defendant is not obliged to put the plaintiff into a better position 
    than he would have been had the accident not occurred.  Here the plaintiff 
    suffered from a condition of degeneration of the spine before the accident. 
     Given the numerous doctor and chiropractor visits prior to the accident for 
    neck and shoulder pain (of which Dr. Beck was unaware) and the significant 
    degenerative changes in the spine, I accept the opinion of Dr. Dommisse over 
    that of Dr. Beck in terms of the long-term cause of the pain. Mr. Stevanovic 
    had significant shoulder and neck problems pre-accident.  His problems today 
    are related to the degeneration of his spine, not the motor vehicle accident. 
     He would suffer his present symptoms even if the motor vehicle accident did 
    not occur.

[16]

And later, at para 70:

I have found that Mr. Stevanovic's ongoing 
    neck and shoulder problems are due to the degenerative changes in his spine 
    from which he suffered before the accident.  I expect that the aggravation 
    of these injuries was caused by his work and related to the degenerative spine 
    and not the motor vehicle accident.  I cannot conclude that Mr. Stevanovic 
    had to retire due to his injuries.  He worked four years post-accident.  Retirement 
    was his decision and his decision alone.  This is not something for which 
    the defendant is responsible.  It is therefore not necessary to review the 
    merits of the claim from a financial analysis.  The claim for future wage 
    loss is dismissed.

[17]

The appellant contests these findings.  He contends that the 1998 accident 
    injuries must have contributed to a degenerative condition in his cervical 
    spine appearing on post-accident medical imaging in 2002, 2003, and 2007 as 
    they were not shown in pre-accident X-rays.  The medical evidence does not 
    support that inference.  Dr. Dommisses opinion was that the degenerative 
    condition was unrelated to the accident.  Dr. Beck disagreed to the extent 
    that he regarded the appellants spasm as consistent with chronic soft tissue 
    injury but he agreed that the degenerative changes shown on the X-rays were 
    not caused by the accident.

[18]

The appellant also states he told Dr. Dommisse that shortly before 
    he retired, the nature of his work for Deere Hitachi changed from lighter-duty 
    refits of logging road excavators to heavier work involving quarter-inch plate 
    steel that put additional strain on his neck and shoulders.  Dr. Dommisse 
    did not refer to that change in his report but in his testimony he confirmed 
    that his opinion was based on the lighter work and he was not opining that 
    the appellant could do the heavier work.  However, he maintained that the 
    occupational disability with respect to the heavier work was related to the 
    degenerative condition and not to the MVA soft tissue injuries.

[19]

The trial judge correctly applied the principle of causation taken 
    from
Athey
. I am satisfied that there was evidence to support her finding 
    that the causes of the appellants early retirement were unrelated to the 
    soft tissue injuries sustained in the 1998 accident.  There was no misapprehension 
    of the evidence or other palpable or overriding error that would permit this 
    court to disturb that conclusion: see
Toneguzzo-Norvell (Guardian ad litem 
    of) v. Burnaby Hospital
, [1994] 1 S.C.R. 114 at 121-22.  Accordingly, 
    there are no grounds to set aside the dismissal of the claim for loss of future 
    earnings.

[20]

The trial judge allowed the appellants claim for the cost of post-accident 
    physiotherapy treatments but rejected a claim for the cost of chiropractic 
    treatments, and a claim for time off work to attend the chiropractor, on the 
    ground that the chiropractic treatments were not recommended by his doctor.  
    She also dismissed a claim for time off to attend medical appointments on 
    the ground that the time off for that purpose was not proven on the balance 
    of probabilities.  I do not think that there are any grounds to vary the trial 
    judges conclusions on those aspects of past wage loss and special damages.

[21]

In the result, I would dismiss the appeal.

The Honourable Mr. Justice Mackenzie

I AGREE:

The Honourable Madam Justice Levine

I AGREE:

The Honourable Mr. Justice Tysoe


