Date: 19970714 Docket: GSS-3137 Registry: Charlottetown

PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION

BETWEEN: BRIAN WALLACE BEATON PLAINTIFF AND: PRINCE EDWARD ISLAND BAG COMPANY AND STERLING MURPHY DEFENDANTS

Before:

The Honourable Madam Justice Jacqueline Matheson

Patrick Aylward Robert Tocchet

Place and Date of Hearing

Place and Date of Judgment

Solicitor for the Plaintiff Solicitor for the Defendant

Summerside, Prince Edward Island November 3, 4, 5, 6, 7, 10, 12, 13, 14, 1997

Charlottetown, Prince Edward Island July 14, 1998

Date: 19970714 Docket: GSS-3137 Registry: Charlottetown BRIAN WALLACE BEATON PLAINTIFF AND PRINCE EDWARD ISLAND BAG COMPANY AND STERLING MURPHY DEFENDANTS Supreme Court of Prince Edward Island - Trial Division Matheson J. Dates Heard: November 3, 4, 5, 6, 7, 10, 12, 13, 14, 1997 Date of Judgment July 14, 1998 ( 35 pages )

DAMAGES - Personal Injury - Chronic Pain - Degree of Disability

CASES CONSIDERED: Athey v. Leonati, [1996] 3 S.C.R. 458; Cairns v. Harris (1994), 1 P.E.I.R. 53; White v. Slawter (1996), 149 N.S.R. (2d) 321 (N.S.C.A.); Penso v. Solowan and Public Trustee, [1982] 4 W.W.R. 385; Dennis v. Gallant (1991), 1 P.E.I.R. 4; Gunn v. Larter (1992), 2 P.E.I.R. 5; Terris v. Crossman (1995), 1 P.E.I.R. 362; Smith v. Stubbert (1992), 117 N.S.R. (2d) 118; Valencourt v. Husain, (1994),132 N.S.R. (2d) 291; Kelly v. Hadley (1995), 138 N.S.R. (2d) 272 ARTICLES CONSIDERED: Englehart, K., Proof of Future Events: In Support of the ‘Simple Probability’ Burden of Proof (1987) 8 Advocates’ Quarterly

Patrick Aylward Robert Tocchet

for the Plaintiff for the Defendant

Matheson J.: [1] The plaintiff claims for injuries arising from a motor vehicle accident on February 27, 1992 in which a vehicle owned by the defendant and driven by the third party collided with the back of the plaintiff’s truck. Liability has been admitted. The issues in dispute are: (1) the extent of the plaintiff’s injuries; (2) to what degree these injuries are attributable to the collision; and (3) damages. Pre-Accident History [2] The plaintiff, Brian Wallace Beaton, is age 46. He is married and lives in Bedeque, P.E.I. with his wife, Brenda, and his son. He has a Grade 8 education, with later upgrading for grades 9 and 10. He has taken a mechanic’s course and has worked in construction and as a supervisor on a shift at the Irving Station and McNeill Motors in Summerside. He worked in Nova Scotia at Stronnick Oil, and while he was living in Nova Scotia he did some fishing. He subsequently moved back to Prince Edward Island, took some training at the Navigation School and obtained his 40 Ton Ticket, which means he can operate a forty-ton vessel within a five-mile radius of Prince Edward Island. He then moved back to Nova Scotia, to Kentville, where he sold doors and windows. His wife opened a beauty salon. He also opened a small fish market and drove a gravel truck. He fished in the Bay of Fundy for cod, haddock and halibut. [3] In 1986, while driving a gravel truck for a friend, he was involved in an accident. The hoist broke and the load hit the roof of the cab, causing him to bounce around inside. He described himself as being Apretty sore@. During this accident he hurt his lower back. He drove the truck home even though the box was twisted sideways. It took approximately two years for him to recover from the accident before he could work normally again. [4] He returned to P.E.I. for financial reasons, moved in with his parents and started to fish again. In 1986, he fished eels and in 1987 and 1988 he operated a fish and lobster pound business. He had difficulty fishing eels in the traditional manner so he built a smaller boat and put a small engine on it and with a set of rope pullies, could manoeuvre the boat. He originally operated a small fish and lobster pound from his father’s property but later set up one in Summerside, which he sold in late 1989 or 1990. [5] After this he bought a property in Bedeque and started to grow organic potatoes. His son sold them at a roadside stand. The plaintiff continued to fish and had licenses for eels, smelts and oysters. His wife assisted him in making the nets and sorting the fish. He had eight box net licenses and his wife had two. This type of fishing required a lot of manual labour, but he liked it very much. He built his own boat and also built about half a dozen boats for trout and eel fishing for other people. He also fished bar clams and he and his wife harvested Irish Moss.

Page: 2 [6] Upon his return to P.E.I., the plaintiff consulted his family doctor, Dr. Harold Molyneaux about his injuries from the 1986 accident. Dr. Molyneaux first saw the plaintiff on July 17, 1987. The plaintiff had been attending physiotherapy at the Summerside Physiotherapy Clinic and he presented to Dr. Molyneaux with back and neck pain. The plaintiff initially advised that he was injured in March, 1986, while working with the Department of Highways. He had cervical spine and generalized back injuries. Dr. Molyneaux examined the plaintiff and made an appointment for him to see Dr. Kass, an orthopaedic surgeon, on August 4, 1987. Dr. Kass wrote to Dr. Molyneaux, on August 10, 1987, stating, ABasically it seems he probably has a strain to his lumbosacral spine with possibly some cervical strain. He should have gotten better but he certainly hasn’t. @ Dr. Molyneaux saw the plaintiff throughout 1987 for low back and neck problems. [7] By June, 3, 1988, the plaintiff seemed to have improved, but he would never be able to drive heavy equipment again. On August 1, 1988, the plaintiff reported that he was tired if he stood on a cement floor. He was standing at the counter selling fish and despite three layers of rubber matting he was still having neck and back problems. [8] The plaintiff was referred to Dr. Muzumdar, Director of Physical Medicine and Rehabilitation at the Queen Elizabeth Hospital in Charlottetown in August, 1988. Dr. Muzumdar wrote to Dr. Molyneaux on August 30, 1988, stating that his clinical impressions were mild, chronic mechanical lumbosacral strain, mild intermittent chronic lower cervical strain. The plaintiff did not describe any leg weaknesses and no parasthesias or neuro vascular symptoms in his feet or distal legs. Dr. Muzumdar said, @This gentleman shows primarily a pattern of mild fascial type of pain with no neurological findings, . . . his joint examination is within normal limits. @ My suggestion would be to have this gentleman learn maintenance exercises of his paraspinal and abdominal muscles, as well as the cervical muscles which he can carry on for maintenance purposes. When he does have any aggravation, he should be treated with a short course of muscle relaxants, not extending two to three weeks, complimented with a longer course of antiinflammatories for about eight to ten weeks. At this time he is reluctant to take any medications since his symptoms are essentially of low grade and I concur with his thoughts. I do feel that this gentleman would benefit from going to the Back Education Class. ..... I reassured him that his pain is primarily mild fascial type and is expected to resolve over the next several months. I emphasized that he should keep his activity level up so that his range of motion and muscle strength remain within the ranges of normal.

[9] On April 7, 1989, the plaintiff reported stimulation of his neck complaints to Dr. Molyneaux and on May 31, 1989, there were some osteoarthritic symptoms in the left

Page: 3 shoulder. Generally, when asked by Dr. Molyneaux how he was feeling, he said, ASwell.@ Dr. Molyneaux’s records indicate that the last time the plaintiff saw him with a sore neck or lower back problems prior to the 1992 accident was in 1989. [10] The plaintiff’s evidence was that by the time of the 1992 accident he had recovered from the 1986 injury, except that he has lower back pain in the evenings if he engaged in strenuous physical work or stood for long periods of time on a hard surface (cement). Collision [11] On February 27,1992, the plaintiff was driving a Ford all wheel drive vehicle, and was stopped behind a school bus when he was struck from behind by another vehicle owned by the defendant, P.E.I. Bag Company. At the time of the collision, the plaintiff’s head struck the rear window of his truck and broke the glass. After the accident, the other vehicle was approximately 15 feet behind him and the front was Atorn up@. The plaintiff didn’t think his vehicle moved, and there were no tire marks which indicated that his vehicle had moved. He assumes the truck hit him and bounced back, but the plaintiff’s vehicle didn’t hit the school bus. [12] Arthur Aucoin came upon the accident shortly after it occurred. He saw two holes in the back window of the plaintiff’s truck. The front bumper of the defendant’s truck went under the plaintiff’s back bumper and the grill of the defendant’s truck hit the plaintiff’s back bumper. When Mr. Aucoin arrived, the plaintiff was bleeding from his head and ear and his passenger was also complaining of injury and bleeding. The plaintiff was leaning on the truck and looked to be in pain. He was complaining about being sore. [13] After the accident, the plaintiff remembers being outside the truck, leaning over the box of his truck, and being very sore. He went to the hospital where he was seen by Dr. Molyneaux. He then returned home and went to bed. The next day, he was very sore, had difficulty walking and holding up his head. When he got off the sofa he had to get on his hands and knees and climb up from there. Plaintiff’s Injuries [14] Within a few days of the accident, the plaintiff went to see his family doctor and received pain killers. In the following weeks, he had a lot of back and neck pain. It was very difficult to move. He couldn’t use his hands above his waist because that lead to pain, and standing for any length of time also lead to pain. [15] The plaintiff attended physiotherapy in March, 1992 and took some painkillers. However, the physiotherapy did not work out well and was discontinued in late March. The plaintiff then went to see a chiropractor, Dr. Robichaud. He was getting along very well and the pain in his feet cleared. However, Dr. Robichaud died and the plaintiff then

Page: 4 commenced treatment in April, 1992 with Dr. Belyea another chiropractor who works in Charlottetown. The plaintiff felt that the long drive back from Charlottetown negated the benefits of the treatment he received from Dr. Belyea. He discontinued treatment with Dr. Belyea on August 10, 1992 as he was proven resistant to the normal treatments for his type of injury. [16] The plaintiff was examined by Dr. Profitt on August 19, 1992. The plaintiff complained of cervical pain, low back pain and headaches. The low back pain was the most severe. Dr. Profitt reviewed the plaintiff’s medical history, as he had examined the plaintiff in 1988 for injuries received in the 1986 accident. The plaintiff told him he had made a good gradual recovery from the 1986 accident, and didn’t have any problems with his neck or upper back, but did have some persistent problems with his lower back. On examination, Dr. Profitt found all movements of the plaintiff’s cervical spine were restricted by Aperhaps 50%@ as were movements of the LS spine. He felt the plaintiff has a soft tissue injury of the cervical and LS spine and recommended the plaintiff attempt to keep himself in good aerobic shape, continue twice weekly with a chiropractor, do lots of brisk walking, use moist heat and do lots of stretching for the neck and low back. He concluded by stating: We do know that this type of injury can show improvement up to 24 months post-accident. I am optimistic that Brian will improve as he has had a similar accident and symptoms previously and did show good improvements at that time. . . At present with his degree of symptoms, I do feel he is not capable of work for the short term.

[17] Between August, 1992 and December 1992, the records do not indicate that the plaintiff received any physiotherapy or chiropractic treatment. The plaintiff saw Dr. Belyea three times in December of 1992. The plaintiff returned to physiotherapy on April 27, 1993, and received sixteen treatment sessions up to June 9, 1993. However, none of the techniques used lessened his discomfort. The plaintiff continued to see Dr. Molyneaux periodically in the fall and winter of 1992-93 complaining of upper and lower back pain, burning feet, headaches and inability to do anything requiring physical effort. [18] He was referred to Dr. Kass, an orthopaedic surgeon, who examined him on March 10, 1993. The plaintiff’s complaints were headaches, pain and stiffness in neck and low back, pain and general weakness in arms and hands, and inability to lift or carry things. Dr. Kass concluded that the plaintiff suffered a Apretty classic hyperextension whiplash type injury@, which he described in this case as being Aa fairly significant acute hyperextension ‘injury’A. He felt that even though the plaintiff had a fairly significant moderate severe injury to his neck, most people improve within two years. Dr. Kass recommended a supervised exercise program and physiotherapy. AThe main stay of treatment is mobilization with stretching and exercise, plus the use of various anti-inflammitories. He suggested the use of an electronic treadmill with handles. At this time, Dr. Kass felt the plaintiff was unable to work as a fisherman.

Page: 5 [19] Mr. Beaton started treatment with Dr. Adams, a chiropractor, in July 1993 and has been receiving treatment from him ever since. He took three sessions of acupuncture in 1994, but it did not help him so he stopped. He said the third session Acompletely drained@ him. [20] Dr. Adams works on his neck and the side of his head, and this has helped to alleviate his headaches 85-90% of the time. The plaintiff felt Dr. Adams has helped him in terms of energy, flexibility and stamina. He has more movement in his neck and back and he is able to sit and stand longer. He can take out wheeled garbage cans, cut the lawn for five minutes with a push mower, and drive a lawn tractor for a certain period of time. He can’t do the dishes, if he raises his arms above the counter, but he can vacuum. He has had a treadmill for four and a half years, and he uses it in the winter for walking. At first he could use it for about two minutes and now he’s up to twelve minutes. It has arm and hand rails to take his weight. He has done a bit of hand and arm exercises, leg and head exercises, and a lot of walking. The physiotherapist and the chiropractor have recommended specific exercises. These exercises hurt, but he does some exercise at least once a day. The only exercise that has really helped him is walking. Every morning, when he wakes up, he has to roll his neck around to loosen it up and he will always have to do that. His neck is very stiff in the morning and he gets a lot of snapping in the back of his neck. [21] With regard to the relief given to him by Dr. Belyea, the plaintiff says the adjustment to his neck usually only gave him relief for half an hour to an hour. On June 11, 1992, Dr. Belyea’s notes describe his neck as being fully and painlessly mobile for one to three hours. The plaintiff did not recall a manipulation which felt particularly good where he could turn his neck back and forth without pain. However, he agreed his neck felt painless and weightless and allowed him to move normally. On the drive home on that date he could look both ways at the stop sign without pain. The plaintiff feels that chiropractic treatment keeps him mobile. The results last quite a spell if he goes home and lies down. If he moves around a lot it loses its efficacy and only lasts an hour. The benefits last for different lengths of time, depending on the manipulations. He is not sure if he ever said that the manipulations helped for 5 to 30 minutes, but after 30 minutes he is back where he started if he stays on his feet. [22] The plaintiff described his headaches as coming up from the back of his neck to behind his ears and stopping at the temple area. Previously they would go across his forehead in a tight line. There does not appear to be a pattern of specific things which trigger the headaches. He cannot recall if he had headaches prior to the 1992 accident, but they did start after the accident and they switched from side to side and across his forehead. At discovery he said the headaches were always on the left, but now he says they switched to the right side, and he can’t recall when they switched.

Page: 6 [23] The plaintiff says his disability has affected his relationship with his son because he can’t play with him now as he used to; he can’t repair vehicles or drive his son places; he can’t play ball or wrestle with him. He takes his pain out on his wife and son, roars and growls at them all the time. He can’t do things with his son so he has to explain them to him. He now leaves his son alone, so he doesn’t start complaining at him all the time. [24] Prior to the accident the plaintiff had ulcers and he sometimes passed a bit of blood and tissue. He took Tagamet and this healed the ulcer. After the accident, he had a lot of pain in the left side of his stomach, and he was passing a lot of blood. He was diagnosed with a torn lower rectum. About a year and a half later he had a ruptured bowel and had to have surgery twice - once for a colostomy and then a month later further surgery to rehook up his bowel. His spent twenty-seven days in the hospital altogether. He continued to have bowel problems until mid-September 1997. However, there is no medical evidence to connect either of these problems with the collision. [25] When the plaintiff was questioned about prior accidents, he could not recall if he was involved in an accident in 1974 in which he was thrown from a motor vehicle at high speed. However he does not dispute it either. The plaintiff admitted he abused drugs until ten years ago. He also had a problem with alcohol, but he stopped about 1987 and he has not had a problem with alcohol since. He admitted he liked to drink and party but he does not think he is an alcoholic. He did not recall the Prince County Hospital record that said he was drinking heavily and drove a car into a tree and hurt his neck and shoulder, nor did he recall being diagnosed for depression and alcohol abuse in 1979. [26] On three occasions the plaintiff says he has lost the use of his legs, his back went numb and he collapsed. The first time he was visiting Stu Currie. He dropped to his knees and sat on the side of a raised flowerbed until he could use his legs again. It happened again, once in the yard at home and another time in his wife’s beauty salon. He was frightened about these occurrences and told Dr. Molyneaux about them. [27] The plaintiff says his neck locks into position and this increases or changes the pain - it does not relieve it, it changes it. The snapping puts the pain in different areas in his neck, the lower part of his head or the bone at the top of his spine. The snapping has become a normal way of life for him now, but it’s worse on damp days. [28] The plaintiff described his pain as being ten out of ten. Generally he feels better in the morning after he’s had a good night’s sleep. His condition worsens as the day goes on, with his lower back and neck becoming sore. [29] Compared to two or three years ago, the plaintiff says he feels a lot better mentally and physically today. He has more mobility in his neck; he can stay on his feet longer; he has no pain in his feet; his feet and hands do not swell as often as they used to, although there is still a bit of swelling in his hands now. Previously his feet would swell and burn. In

Page: 7 September 1997 he started taking Tahiti Noni juice and this has made him feel considerably better. [30] The plaintiff’s wife, Brenda Beaton, confirmed much of the plaintiff’s evidence about his physical ailments since the 1992 accident. The plaintiff has told her his legs felt very weak and if he didn’t sit down right away he would fall. He’s never actually fallen to her knowledge, but he’s had this weakness three to four times. She was present once when it happened in the kitchen and he just grabbed a chair and sat down. He asked her once if his face dropped down on one side. She couldn’t see anything, but he said it felt like it was and he was drooling. [31] Mrs. Beaton described the plaintiff’s movements as very slow; for example, getting up from the couch, he stands for a few seconds before moving. He walks leaning forward and holds onto the lower part of his back. His feet and hands used to swell all the time and he complained of burning in his feet. She has had to pull off his boots because his feet were swollen. Noni juice has taken the swelling out of his feet and hands and it has also improved the numbness in his left leg. However, on one occasion when he was feeling better he tried to do too much. He tidied up at the garage and he ended up on the couch with pain, which lead to more Ahollering@ at her and the child. She can tell when he’s in pain because he’s not the same person. [32] Prior to the 1992 accident she doesn’t recall the plaintiff complaining of headaches. They always had Tylenol in the house but it would last two or three months. Prior to 1992 they always had money to buy what they wanted. Things are very tense now. The plaintiff has become more possessive and critical of her. His disabilities have also impaired their sexual relationship. Their son doesn’t understand why his father is always complaining at him when he’s only playing. Prior to the accident the plaintiff always minded the heat, but now he keeps the house so warm that she can’t work. Mrs. Beaton operates a beauty salon in her home. [33] Joseph (Charlie) Gallant worked for the plaintiff at the B&B Garage in Bedeque after the accident. Mr. Gallant did most of the mechanical work and gave estimates on the work. The plaintiff would pick up parts for him, look after the paper work and collect the accounts. He also paid Mr. Gallant and decided who got credit and who didn’t. Mr. Gallant would see the plaintiff three or four times a day and then not see him for two or three days, depending on how he felt. [34] Mr. Gallant confirmed the plaintiff has short term memory loss. The plaintiff could go into Summerside and forget what he went in to pick up, then he’d have to return. The plaintiff has made three trips for the same item. The plaintiff would also sometimes forget what the customer wanted, even if he had known the customer for years. Mr. Gallant also described the plaintiff’s decisions as not being well thought out. They would be spur of the moment arising from frustration. Some days the plaintiff just came in to talk to the

Page: 8 customers, other days he would sort out the paperwork or go get parts, but the plaintiff couldn’t concentrate long enough to do a major job. He would just do some minor picking. He would bring tools to Charlie or help him hold up the exhaust while he tightened it up. He couldn’t do heavy work and he would get someone else to help Charlie. [35] Mr. Gallant also has a bad back and he described the plaintiff as having a lot of the postures that he has. He holds himself a certain way because he can’t stand straight. He has trouble concentrating and his facial expressions would show if he was having a bad day. When asked if the plaintiff was faking, Mr. Gallant replied sometimes he would wonder, but deep down he did not think he was. [36] Mr. Gallant noted that the plaintiff’s physical posture, ability to concentrate and decision-making abilities were affected by tension and he was always finding fault with others. He’s seen the plaintiff do things that he thought he shouldn’t do, such as try to move a motor. After these activities the plaintiff would suffer for the next two or three days. Mr. Gallant felt one has to see all these stages to determine if the plaintiff’s problems are real. The plaintiff goes through four or five stages, and the ability to move his neck varied from day to day. The plaintiff could work at a bench with his hands, but he couldn’t stand any length of time. The plaintiff had taken a mechanic’s course, but did not have enough background to do the work. Mr. Gallant thought the plaintiff was rough when towing old vehicles, bouncing around didn’t help his back. The plaintiff would take the frustrations out on a piece of machinery. [37] Donald R. Young used to fish with the plaintiff and visited him at his home in Bedeque and at the B&B Garage. He described the plaintiff as not doing Aa whole lot@ around the garage. He did not do manual labour. Mr. Young has seen the swelling of the plaintiff’s hands and arms. He described the plaintiff as always being sore. [38] Mrs. Helen White is a neighbour of the plaintiff’s in Bedeque and a customer of Mrs. Beaton’s. Prior to the accident she saw the plaintiff outside a lot, building boats, cutting the lawn, and planting potatoes. He fished and was up early every morning and he was also out fishing in the evenings. Now she only sees him driving by in the car. She does not see him doing anything outside the home. Since the accident, he appears to have a lot of back pain and she has seen him lying on the couch many times. Medical Evidence Dr. Molyneaux [39] Dr. Harold Molyneaux, a family physician who has been practising in Summerside for 20 years, was on duty at the emergency department of the Prince County Hospital on the day of the plaintiff’s accident and treated the plaintiff when he came to the hospital. He again saw the plaintiff on March 3, March 5, March 13, March 24 and May 15, 1992 and

Page: 9 continued thereafter to see him on a regular basis for his back problems. Dr. Molyneaux referred the plaintiff to physiotherapy and to specialists. On January 24, 1994, the plaintiff presented to Dr. Molyneaux with significant headaches. He still had persistent problems with his lumbar spine, cervical spine and left hand. He reported situational problems about activities at home and dealing with daily living. On February 22, 1994, Mr. Beaton had seen Dr. Yabsley the previous day and he complained about discomfort in three fingers in his left hand. [40] Dr. Molyneaux did not see the plaintiff from March 9, 1994, until May, 1995 as the plaintiff was attending a chiropractor in this period. On May 1, 1995, the plaintiff reported he was still having problems with back and legs. He had a freezing sensation and he was sore in the middle of his lower back. He was using a TENS unit and was able to do limited activities. Dr. Molyneaux advised him to go out and about every day. He continued to see the plaintiff periodically. [41] On January 31, 1996, the plaintiff complained of neck and back muscle pain. He had quit smoking before Christmas, had been to a chiropractor twice weekly and he still had neck and back pain. He would use the treadmill prior to this, but it increased his pain in his left leg so he discontinued the exercise. [42] Dr. Molyneaux felt the plaintiff hadn’t progressed very much, although he felt the plaintiff was quite compliant with his advice and tried everything Dr. Molyneaux suggested. However, I note Dr. Molyneaux did not suggest any particular course of treatment other than referring the plaintiff to specialists.

Dr. Adams [43] Dr. Vincent Adams is a chiropractor who has been treating the plaintiff since July, 1993. When he first sees a patient, Dr. Adams goes through an orthopaedic and neurological type of exam. The orthopaedic tests help him to establish a general area that he should definitely evaluate with joint assessment. A person can have a full range of movement in the neck and yet have a dysfunctional joint. If one joint is not moving properly or is not moving at all the joint above will compensate and will move excessively. [44] When doing an orthopaedic evaluation, Dr. Adams assesses flexion and extension. He goes through the muscles and the joints systematically and tries to correlate it with the subjective symptomology. The plaintiff provided him specifically with information as to how the accident occurred, the speed of the car and how his injury occurred to give him some idea of how severe the trauma was. Dr. Adams then reviews his subjective symptomology and how the plaintiff is feeling. Through all the history he watches how the patient moves or sits.

Page: 10 [45] When the plaintiff first presented to Dr. Adams, Dr. Adams was not aware of any other sustained injuries to particular muscles. When he first saw they plaintiff he had a ligament injury that had not healed in the upper and lower C spine in his neck. However, Dr. Adams did not feel any scar tissue in this area. The plaintiff did not report any specific pre-existing problems prior to the 1992 accident. [46] The plaintiff presented with constant headaches and lower neck pain with radiation into the left arm into the fourth and fifth digits. He had low back pain, localized generally to the left, and some bilateral leg pain, numbness and tingling. He also reported burning in his feet. The plaintiff reported he was very limited in his ability to do any activities of daily living. He was able to be fairly specific in which parts of his body he was having pain. Once the pain is localized, Dr. Adams does neurological tests on the upper limbs. The results of these tests were normal. [47] On the motion palpation tests, Dr. Adams found the plaintiff had two areas in the neck which were dysfunctional, and, in the low back, basically above his belt line. Dr. Adams found decreased rotation, forward flexion and lateral bending in the joint C0/C1 in the neck. The joint was not able to move in those ranges of movement and the plaintiff had inhibited movement in three of the joint’s planes. [48] Dr. Adams found trigger points in the sub occipital muscles which, when palpated, created a referral pattern. He found that the spinal C7 and T1 joint was restricted on flexion and rotation. Dr. Adams also found associated numbness and tingling in the plaintiff’s hand which correlate with the joint itself in that area. At L3, L4, the area around the belt line, he found that the plaintiff was lacking in lateral bending as well as flexion, he felt trigger points in the muscle in that area. [49] When Dr. Adams first started to treat the plaintiff his first approach was to try to bring the pain to a tolerable level and then restore some of the joint movement. The plaintiff had problems tolerating the manipulation in the beginning, so they used low voltage type of modalities and trigger point therapy. At the end of six months, Dr. Adams noticed the plaintiff was reporting about 50% of the subjective pain level he had been reporting when he first arrived at the office. [50] For the first year, year-and-a-half Dr. Adams saw the plaintiff consistently three times a week and he thought that they were making some progress. Treatment has now been reduced to once a week, which is maintenance to keep his present pain level tolerable. [51] Dr. Adams said that the plaintiff did poorly with his exercises. He was able to get up to ten to fifteen minutes on the treadmill and he also did some quadruped exercises. The plaintiff would report more soreness and objectively, when they palpated the muscle, he would definitely be more irritated than previously. The muscle would be tightened as well

Page: 11 and this was a continuing cycle. [52] In terms of examinations which showed that on one particular time the plaintiff might have good range of motion and another time he did not, Dr. Adams explained it in terms of the plaintiff’s good and bad days. Some days, when he presented to Dr. Adams’ office he had relatively fair to good range of motion, but when you motion palpated the muscle, or went the next step further there were problems and although he had a good day he still was not functioning properly. If Dr. Adams just did an orthopaedic range of movement test, a gross range of movement test, he would not find these trouble areas, but they would show up on motion palpation. Dr. Adams admitted that he did not keep notes of the objective changes which he noted in the joints and muscles when he checked the plaintiff on each visit. He did make note of the subjective findings, i.e. what the plaintiff told him about how he felt. [53] In 1994, Dr. Adams wrote to the insurance adjuster stating that due to the severity of the plaintiff’s condition at that time, he would be unable to partake in a structured exercise routine. Prior to this, Dr. Adams had not consulted with the specialist who had recommended a regular exercise regime, and on cross-examination he admitted that he was not saying that a structured exercise routine would never be worthwhile. [54] Dr. Adams agreed that if the plaintiff is sore he is not going to be able to move. He never heard any snapping or locking in the plaintiff’s neck, although the plaintiff complained to him about it. Dr. Adams manipulated his neck in different ways. Dr. Adams found a constant tenderness in the scalenes and SCM muscles at the front of the neck, although Dr. Yabsley found none. Dr. Adams said the palpation tests an orthopaedic surgeon does are different from his. However, he admitted that he expected that if someone had a very restricted range of movement that their muscles would be sore on those days. When asked if he would find it inconsistent that the muscles in the front of the neck would not be sore when the person was not able to extend at all, he replied Anot necessarily@. If an individual has a hot facet and attempted to extend his head he would find that very painful within the joint itself and yet the scalene muscle may be quiet at that point in time because the scalene does not get initiated with extension. However, he admitted the scalene muscles were always sore when he saw the plaintiff. [55] When asked if he found that the plaintiff had new symptoms which came up periodically which had never shown up before, Dr. Adams mentioned there was a drooping at the corner of his mouth. Dr. Adams described this as a small incident and it resolved relatively quickly. [56] When questioned about whether or not he could be taken in by someone presenting with the plaintiff’s complaints, Dr. Adams did not think he could because the degree of the accident was quite severe, so it would not be unreasonable to assume that the plaintiff would have this level of disability. He did agree if it had been a minor accident, with the

Page: 12 plaintiff’s degree of physical symptoms, it would be highly unlikely that he was injured as he said he was. [57] Dr. Adams felt that exercise can aggravate trigger points and set people back. When questioned on cross-examination why Dr. Kass would suggest an exercise program supervised by an appropriate therapist if this were the case, he replied if you look at someone like the plaintiff with his particular condition in terms of his upper trap myofascial pain, he would tend to have weak lower and mid trapezius muscles. For a structured program to occur you would definitely have to have focus on the weak muscles and avoid causing contractions of the muscles which had already sustained contraction. [58] Dr. Adams agreed that people who suffer from depression sometimes have muscular difficulties in both upper trapezius muscles, as they tend to be tight, and they would also have headaches. The way he distinguishes between pain in the upper trapezius and neck area caused by anxiety or depression and a physical injury is by trigger points, the facet joint, and an assessment of the length of the muscle in the contracted state. He would use all this together. Someone who is depressed and has tight muscles may not exhibit trigger points. There were days when the plaintiff had full range of motion in his neck, but when Dr. Adams palpated he found a problem in the trigger points or the facet joint. ASome days he would have full range of motion with myofascial trigger point not being a main concern and the joint would be irritated and dysfunctional so I would just work the joint itself@. When asked whether or not the trigger points would prevent him from having a full range of motion, he implied that it depended on how active they were. [59] With regard to Dr. Yabsley’s report, Dr. Adams had some difficulty with the gross range of movement that was found and also the fact that all palpation of the cervical spine was normal with no tenderness. He agreed that Dr. Yabsley could find a full range of movement in the neck for what he was checking but Dr. Adams thinks that the plaintiff has trouble with his neck. He had difficulty with Dr. Yabsley not going further in terms of checking his neck. He did not disagree that Dr. Yabsley could find no spasm because the definition of muscle spasm is a lot different from a trigger point type pain. He also disagreed that the plaintiff would have a normal curve of his neck. Even without trauma, in his deconditioned state, the plaintiff does not have a normal curve. He disagreed that Dr. Yabsley could have found a functional unrestricted range of motion. He disagreed with Dr. Yabsley’s impression, but did not disagree with any of the other clinical findings. Dr. Vaughan [60] In November 1994, the plaintiff was examined by Dr. Daniel Vaughan, a neurologist. Dr. Vaughan did not testify but his report was entered into evidence. The plaintiff had been complaining of swelling and puffing in his hands and pain in his leg. Dr. Vaughan concluded that the hand and leg problems were unrelated to his motor vehicle accident.

Page: 13 Dr. MacLean [61] Dr. Gregg MacLean, a neurologist, first saw the plaintiff on April 10, 1993 at the Summerside Medical Centre on a referral from Dr. Harold Molyneaux for assessment. Dr. MacLean took the plaintiff’s history and examined him. He felt the significant elements in the history were a diagnosis of chronic neck and back strain from a motor vehicle accident, which then developed into chronic pain syndrome. Dr. MacLean found residual symptoms from the plaintiff’s first accident in 1986, but they were not significantly impairing symptoms. The principal problem the plaintiff had is chronic neck and back pain, plus a whole myriad of other complaints, as people with chronic pain have. The plaintiff’s complaints arose after the accident as part of a chronic pain syndrome, so he tied it to the accident. Memory impairment and tingling in hands often occurs with chronic pain. [62] On examination, the plaintiff had some restriction of movement in his neck and lumbar spine, and was tender in the spine in these areas. In his report, Dr. MacLean referred to marked limitations of movement. The neck and lumbar spine were noted to be restricted to less than 50% of normal. Dr. MacLean said everyone has a different style of testing and reporting. It’s an inexact science and whether the physical findings are ten percent or eighty percent is not relevant to a diagnosis of chronic pain syndrome. [63] Dr. MacLean defined myofascial pain syndrome as soft tissue tenderness or pain over the muscles. The term is blurred and overlapping, the same as chronic back pain and other names. They all mean a soft tissue tenderness with pain over the muscles without pathological support, that is physical symptoms in the muscles. [64] With regard to faking symptoms, Dr. MacLean felt anyone can fake anything in medicine, but you have to rely on a patient’s history as the basis of the diagnosis. For example, if you have rheumatoid arthritis you have a chronic condition, but you have some variable functional abilities within that condition, depending on the circumstances. Chronic pain syndrome is a frustrating situation because the patient is not getting better and he is not tolerating physiotherapy. Dr. MacLean recommended more gentle physiotherapy and tricyclic anti-depressants. [65] Dr. MacLean saw the plaintiff again on April 14, 1994. At this time the plaintiff was expressing benefit from chiropractic treatment, yet he reported an increase in his symptoms. Dr. MacLean said one can have a variability in symptoms with a chronic problem and emotional stress can lead to worsening of the symptoms. Dr. MacLean examined the plaintiff and his findings were similar to the prior examinations in that he noted restrictions in the range of motion. [66] Dr. MacLean was asked to address Dr. Yabsley’s report in which Dr. Yabsley had noted tenderness and restriction of movement, but he did not think there was anything

Page: 14 physically wrong with the plaintiff. Dr. MacLean said the physical examination is not the crux of the matter in chronic pain syndrome. ...So the focus on the physical findings doesn’t get at the root of the problem. The root of the problem is the history and how reliable is the history, is somebody really functionally impaired by that problem and are they really experiencing chronic pain... My feeling is that the history was credible. He had had all kinds of life problems. He had tried to follow programs and take the appropriate medications and had financial hardship, which he tells me was based on his inability to do work and to function as a normal citizen;...that’s what, to me, epitomizes the whole history. To focus on the physical findings... It’s not relevant to making or securing the diagnosis... Objective means you can see it or have some finding demonstrated. Now in some ways, depending on what’s causing the chronic pain disorder, there may be some objective measure of it... it depends on the disorder that you’re talking about; but pain is a subjective experience, and it’s beyond the path of physiology. It’s a very complex experience. It brings with it all the emotions, it brings with it ethnic and cultural perceptions. Everything is embodied in the ah, in how people perceive pain...

[67] There are two camps in the literature on whiplash - the neurophysiology camp and the orthopaedic camp - and sometimes there are divisions between the two. Orthopods are not so enamoured with whiplash and neurologists are more enamoured with whiplash. Dr. MacLean includes whiplash as a form of chronic pain syndrome. Neuropsychological testing is used in people with memory complaints because they have more sensitive tools to ferret out problems than doctors can with a bedside exam. The patient can give a lucid history but still have cognitive problems. The neuropsychological tests can find these by comparing the patient’s test results with standards. [68] Dr. MacLean again saw the plaintiff in January 1996. The plaintiff complained of continuing ongoing pain problems. Dr. Molyneaux wanted the plaintiff to be assessed and Dr. MacLean recommended a small dose of anti-depressants since he hasn’t tried any medications since his poor experience with anti-inflamatories... ACertainly he has to have some type of reasonable trial of medication and I think that it is not unreasonable to start him on a small dose of tricyclic antidepressant. @ [69] Dr. MacLean has reviewed the neuropsychological reports from Dr. Krane and Dr. McLure. Those reports support the clinical notion of chronic pain syndrome and some distractibility arising from this. The reports are quite similar in their conclusions. When asked for his opinion on what effect this time period of a couple of years between the two tests have on the reliability of their results and he said if you come up with the same result over time, that enhances the reliability of the test. Dr. Krane [70]

Ann Krane, a psychologist prepared a neuro psychological assessment of the

Page: 15 plaintiff at his counsel’s request in July, 1995. Dr. Krane did not testify, but her report was filed into evidence and her report and tests were assessed by Dr. McLure. [71]

She summarized her findings as follows: Summary: Mr. Beaton, more than three years post-accident, continues to suffer chronic neck and back pain, daily headaches, numbness in his arms and legs, and burning feet. He also reports cognitive symptoms including memory problems and difficulty concentrating, with problem solving, with following conversation, and with Acommon sense @. Fortunately, Mr. Beaton’s neuro cognitive profile is not consistent with a diagnosis of traumatic brain injury. The deficits that define his profile can be attributed (1) to Mr. Beaton’s limited formal education, (2) to his need to wear his prescribed eye glasses, and /or (3) to inconsistent performance characteristic of a chronic pain disorder. On formal memory assessment Mr. Beaton did not display evidence of memory dysfunction, yet he reports frequent everyday memory problems. Everyday forgetfulness is a frequent complaint of chronic pain victims; pain and worry about pain interfere with keeping track of everyday tasks and details. In conclusion, Mr. Beaton does have ongoing disabilities resulting from his motor vehicle accident of February 27, 1992. Those disabilities include chronic neck and back pain, headache, numbness in his arms and legs, and burning feet. He clearly has a chronic pain disorder that impacts on his memory, problem solving, and common sense reasoning. Mr. Beaton reports that at the time of his accident in 1992 he continued to have pain attributable to an accident in 1986. However, he reports that by 1992 he was re-established financially and was working every day. In contrast, he has been unable to work since the accident in 1992. As his medical condition limits his return to work, his physicians should be consulted regarding prognosis for Mr. Beaton’s future. However, Mr. Beaton might benefit from learning about psychological approaches for coping with chronic pain. Unfortunately, three years postaccident his chronic pain pattern is very likely to remain resistant to psychological management.

Dr. McLure [72] Dr. Neil McLure, an expert clinical psychologist with specialized training in neuro psychology, was requested by plaintiff’s counsel to assess the plaintiff to determine whether or not there were any deficiencies in neuro psychological functioning and to assess whether the plaintiff was malingering or exaggerating his symptoms. He had the lists of tests performed by Dr. Krane, but when he first completed his testing of the plaintiff he had not yet received Dr. Krane’s file. He interviewed the plaintiff and reviewed his medical reports. The plaintiff discussed his history regarding education and work. Dr. McLure considered whether there had been a traumatic insult to the brain as a result of the accident, or whether there was a personality disorder. During his interview with the plaintiff, the plaintiff was very uncomfortable and took a break every fifteen minutes. The plaintiff spoke about his back and neck problems and numbness. He also discussed his

Page: 16 current family life, his relationship with his son which concerned him, and lack of intimacy with his partner. Dr. McLure found the plaintiff very pleasant and cooperative but he appeared depressed. [73] Dr. McLure wanted to redo all of the tests done by Dr. Krane as well as do another five or six tests he added himself, including the Beck Depression Inventory. If a patient is malingering he will usually exhibit antisocial tendencies in the personality tests. Dr. McLure also administered a personality assessment inventory which has a validity profile built into it. The Beck Depression Inventory is a very specific test to look at depression. If these latter two tests are consistent in showing depression, then it is safe to conclude that the patient is depressed. If the two tests are not consistent in showing depression one looks for other reasons for the alleged depression. The lack of consistency is a red flag which would require him to investigate further. [74] In testing, Dr. McLure always looks for profile consistency, converging or diverging data. He also observes the subject’s physical presentation, as test behaviour is a critical piece of information in making the assessment. Is the subject with you or not? Fatigue is important in test behaviour, and in this particular case, the plaintiff needed a break every fifteen or twenty minutes. Dr McLure looks at the patient’s presence, the way he sits, the way he focuses, the way he responds. The process they use in answering the question is as important as the answer itself. In his report, Dr. McLure described the plaintiff as A. . .pleasant and cooperative throughout the entire assessment. Although Mr. Beaton appeared to engage in all tasks to the best of his ability, his reports, and apparent physical manifestations of chronic pain seemed to significantly impact on his ability to maintain any degree of physical comfort. @ [75] Dr. McLure felt the plaintiff’s test results suggest a diagnosis of dysthymia, secondary to chronic pain syndrome. He described dysthymia as low grade depression and the symptoms have to be present for at least two years and for most of the day and on more days than not. It results in reduced self esteem, a sense of hopelessness, a shift in appetite and a compromise in interpersonal relationships. It is differentiated from major depressions, as a major depression is presented more acutely and comes and goes, whereas dysthymia is more chronic. There was no evidence consistent with a traumatic brain injury. Significant personality change or loss of resourcefulness and drive when added to the test results speak more to dysthymia and chronic pain than to traumatic brain injury. When he was asked to discuss dysthymia versus malingering and other causes, Dr. McLure pointed out the five basic points underlying his diagnosis: 1) The results of the memory tests converged to being below average, that is they are somewhere between impaired and where he should be. The plaintiff has a consistent borderline level of functioning. He should have done better, but there was no inconsistency among the memory tests and no impairment which we can assume might be present if he was malingering. This is consistent with a chronic

Page: 17 pain profile, but it is not enough on its own to diagnose chronic pain or dysthymia. The plaintiff’s attention test range was from average to below average and it should be higher. The only area where there was divergence among the tests, showing a lack of consistency, was the test dealing with the frontal brain area. This is unusual and speaks to an inability to problem solve, which speaks to ability to attend well, which speaks to various functions of planning, thinking and problem solving. 2) The plaintiff is unable to problem solve consistently. It does not make sense to be able to do some things and not others, except in relation to chronic pain. The research shows that with the frontal lobe compromise in chronic pain you have a lower degree of functioning and inconsistency in functioning tests which measure this area. The chronic pain compromises the ability to pay attention and organize thinking and planning which is done by the frontal lobe of the brain. 3) The third area is the personality assessment inventory and the Beck assessment inventory. The personality assessment inventory shows elevated somatization, that is the body’s response to stress. Stress can be connected to ulcers and heart disease and the plaintiff reports things consistent with bodily concern and the impact it has on his psychology. His depression level is quite high. Finally, he converts some psychological distress in his physical problems. These were the three areas which were elevated in the personality assessment inventory test. In the Beck depression inventory his score was 16 which shows mild/moderate depression. This is consistent with dysthymia and also consistent with chronic pain. The average personality scores for people with chronic pain on the Beck test is 15.8. 4) There are no consistencies with a malingering profile. Dr. McLure defined malingering in the psychological sense as exaggerating symptoms, but there was no evidence of that in this particular case as there are no inconsistencies across the tests. 5) Dr. McLure saw similar discomfort in the plaintiff’s physical presentation for five to six sessions. It adds subjective legitimacy to the test results. Dr. McLure concluded by saying that for the plaintiff to present this profile across this range of testing, he would need a great degree of knowledge of the tests and of neuro psychology and he is simply not smart enough to pull this off as a scam. He has a low average IQ. Dr. McLure has spent a lot of time with sociopaths in his clinical training, and in his opinion, the plaintiff Ajust isn’t capable of this kind of stunt @. [76] On cross-examination, Dr. McLure admitted that he did not receive a history of depression prior to 1992, nor did he receive a history of low self esteem, head trauma, alcoholism, memory difficulties, depth perception problems, drug abuse, numbness in hands or ulcers. He knew that the plaintiff had bowel surgery but does not know the extent of it. Dr. McLure did not think that dysthymia could be accounted for by the plaintiff’s

Page: 18 bowel surgery. Based on the general consistency of the cognitive tests he did not think he was looking at different results from Dr. Krane’s test. The results do not show a sufficient impairment to say there is a neuro cognitive impairment. Dr. McLure felt that the plaintiff’s problem solving, memory and common sense reasoning loss result from distractibility. Given that they are so consistent it fits the profile of distractibility, relative to all other things in his test results. [77] When asked how he reconciled complaints of physical and mental problems with tests or observations which show a different result, Dr. McLure replied that he accepts the patient’s statements that he is in pain, or if he looks uncomfortable he’ll ask if he wants to take a break. A person may not think he is doing well because of his perception of how he’s behaving. However, on objective testing he may actually be doing better than he thinks he is. This plaintiff reported that his memory is horrible, but the tests showed that although he was not where he should be in terms of memory, it was not horrible. This is his perception of himself. While the plaintiff consistently performs at a level below where he should be, he is not at the impaired level. [78] Dr. McLure admitted that the objective testing does not show the timing at which the plaintiff started to not function as well as he should in these areas. Personality tests ask questions about the time and sequence of symptoms and the memory test verifies he does have problems in this area, but the time line originates from the plaintiff. He has to rely on the plaintiff’s history partially to give a sense of when these problems started and the tests validate or invalidate the problem. He couldn’t say when exactly the problem started from the tests themselves. He also felt that a good general practitioner would pick up attention deficits. [79] When questioned about the effects of past alcohol or drug abuse in relation to test scores, Dr. McLure said that if you actively use, or abuse, alcohol or drugs there will be impaired functioning in the front of the brain. If past alcohol and drug abuse either stopped or slowed down the damage remains, if the brain has been damaged. There is no guarantee that alcohol or drug abuse will damage the brain, but it can’t ruled out either. However, he did not think that the plaintiff had Korsikoff’s Syndrome, or anything similar. Dr. McLure was asked whether the lack of convergence shown up in the tests could be symptomatic of other causes and he said possibly, but if the plaintiff had toxicity of the brain from alcohol or drug abuse you would see other areas of the brain had been compromised as well, not just the frontal part, and there was no evidence of this. [80] Dr. McLure did not agree that alcoholism is always known to be associated with lower scores on the Wisconsin card sorting index in frontal lobe functioning. The plaintiff’s WCSI was below average in ability to do the test because of perseveration, but he did not have a below average test. Alcoholism can impair the frontal lobe, but the plaintiff was not impaired in the Wisconsin card sorting test.

Page: 19 [81] With regard to Dr. Krane’s report, Dr. McLure disagreed that her conclusion that the plaintiff had chronic pain disorder was based on this history and the examination and not on the tests per sé. Her report indicates that Dr. Krane is relying on the results of the frontal lobe tests to form her conclusion. [82] The Trails B Test was important in the plaintiff’s profile. This is a test where you draw a line from numbers in order of sequence, and then from numbers to letters in order of sequence. The plaintiff completed the test without incident, but the time it took him to do it was significant and he did make one mistake on the second part of the test. It took him some time to find the mistake and to correct it. He lost his Afocus@ and this is indicative of preoccupation rather than loss of attention. Dr. McLure concluded one can’t just look at test results alone to decide whether there is impairment or not. You have to look at how he achieved the results. [83] In summary, Dr. McLure says that the plaintiff does not have a traumatic brain injury. There are deficiencies in his profile, but they are not severe enough to be impairments. Dr. Yabsley [84] Dr. Reginald Yabsley, an orthopedic surgeon gave evidence for the defendant. He had examined the plaintiff on two occasions. First in February, 1994 and secondly on September 4, 1996. He also reviewed x-rays, previous medical reports by other physicians and therapists and took a history from the plaintiff. [85] In the report written after his second examination of the plaintiff, Dr. Yabsley gave his impression as follows, which he adopted at trial: IMPRESSION: It is not possible for me to validate Mr. Beaton’s complaints or difficulties on the occasion of his two examinations by me. However, in considering his history and the findings on physical examination together with a review of the x-rays and all of the other reports that are available, I do feel confident in stating that there is and has not been shown to be any evidence of neurological or significant musculoskeletal injury or consequences from his accident. Mr. Beaton continues to have complaints which one cannot verify and which are those of pain and dysfunction and disability. To my mind, there would appear to be positive findings of nonorganic illness, and certainly in examining his neck on both occasions, there is evidence of marked inhibition and of variability in findings by different observers. There is, therefore, no evidence of physical trauma at this time. His problems are subjective and I think largely functional. I do not feel that there is any indication to investigate or treat this man in a conventional medical sense-such cases seem to involve multifactorial components forming the basis of the

Page: 20 clinical picture, and I believe in this case the actual medical aspects are not of great significance.

[86] He also stated at trial that there is no new evidence of residual trauma or long term effects from the accident, such as arthritis. [87] Dr. Yabsley referred to trigger points as areas of tenderness which arise in nontraumatic myofascial situations or non-traumatic fibro myalgia situations. These areas of tenderness are sufficiently distinct to warrant being called trigger points, in that they are in some way unique. Trigger points have never been proven to tangibly exist. The patient will complain of tenderness in given areas, and there are people who believe that these areas are distinct in distribution, distinct in numbers. However, he felt they are really no different from any other tender point. They just exist and are non-specific. For a tender area to be a Atrigger point @, one has to be able to illicit just enough pressure that would fall short of creating pain in a normal person, but would create a painful point in somebody like the plaintiff. Dr. Yabsley pointed out that the idea of trigger points as a scientific concept is not proven yet. However, he agreed that orthopedic surgeons generally would be aware of the concept of trigger points. [88] With regard to the range found by different doctors in the plaintiff’s range of motion in his neck, Dr. Yabsley pointed out there are no absolutes in this kind of problem and where the difficulties are largely subjective then one commonly finds a variable range according to whatever effort the examiner might use, what effort the patient may put into moving the part himself, and it contrasts generally with, for example, a restricted range of motion that one might see in an arthritic case. In an arthritic case there is consistency because it is based on a physical problem, but in these functional or subjective syndromes it is not the same. There generally tends to be a variability for a number of reasons, but finding a variable pattern tends to confirm that it is not organic. It was difficult to assign disability in the absence of organic findings because so much falls back upon the patient’s perceptions and the patient’s own views and responses and the doctor has to assess the patient totally. [89] In terms of assessing the amount of intentional manipulation or how depression would effect functional ability, Dr. Yabsley said that the description of the pain has to be appropriate for the problem and the patient’s response to the pain has to be appropriate: what does he do for it; what does he not do because of it; what does he do to lessen it; does he take any pain medication, if he does, what does it do; does he limp or use a cane? The physician has to look at the big picture and see if the description fits. [90] When examining a patient, the physician must assure himself, as best he can, that it is not unsafe for the patient to undertake physical activity. If the patient is motivated and committed and will dedicate himself to exercise and activity and use, then it is the road to recovery. However, if the patient will not choose that course the outcome if obvious. They will continue to complain of pain and defend their reasons for not being able to move

Page: 21 forward because the pain restricts them. These people do not get better until they become active and functional. The goals imposed in terms of exercise should be modest and reasonable and designed to be appropriate for a particular patient. If a patient is not attempting to meet the goals you have to wonder about other factors, the psycho-social ones, which are important as well. [91] Chronic pain as a concept is not helpful because it could be the basis of malignancy or it could be the basis of no definable reason. Generally, in a case of rear end collisions leading to a physical examination where there are allegations of chronic pain, there are no physical abnormalities found. Dr. Yabsley purposely does not check passive range of motion but he does check motion palpation on the segments of the spine. In his opinion, you cannot clinically estimate the individual’s segmental contribution to the range of motions on a clinical physical examination. Some reports will sometimes say there was a slightly decreased motion at C5/6, or a slightly increased motion at C6/7 and the reporter draws conclusions from a physical exam. In Dr. Yabsley’s opinion, you can’t get that kind of information from a physical examination. It is hard enough where you can use pencil and protractors. He recorded regional ranges, such as cervical spine, and if there is any abnormal contribution in a given part he records that. The plaintiff described a feeling of tenderness. This is a general test of general areas to see if there is tenderness or not and it is a subjective test where the patient responds by telling you or reacting. Dr. Yabsley said the theories of disease between chiropractors and medical doctors are different and chiropractors often record physical findings that are at variance with traditional methodology. [92] When questioned about whether a myofascial trigger point will give a physical explanation of why people continue to have pain problems, Dr. Yabsley said the acceptance of the concept of what a trigger point is is far from universally agreed upon. Dr. Yabsley did not say he did not agree with trigger points, he pointed out that there is no common definition of what a trigger point is. He recorded the plaintiff’s tender areas, and felt it is understanding what they are that is at the core of the issue. With regard to the plaintiff, Dr. Yabsley did not understand why he would have ongoing pain. The injuries have healed, the bony or soft tissue or joint problems have all healed to the best of science to demonstrate. Sometimes the best thing one can say is that there is no obvious reason for it and some people invoke things like concept of myofascial pain or fibro myalgia trigger points, but these are speculative things that have never been proven. Perhaps they will be, but not yet. [93] Dr. Yabsley agreed that in cases of chronic pain the opinion of a psychologist or psychiatrist is very important. However, one must also look at the result of the physical exam as well, particularly if there are no abnormal findings. Depression is a major contribution in many cases to chronic pain syndrome because the depression is manifested in bodily symptoms. He also agreed that ongoing pain can lead to depression.

Page: 22 Assessment [94] The medical evidence discloses that the plaintiff suffered a moderate severe hyperextension injury. This was Dr. Kass’ diagnosis one year post-accident and he expected the plaintiff to recover within two years. The plaintiff says he has not recovered and still suffers pain in his neck and back. The recent medical evidence discloses limited physical findings, and in Dr. Yabsley’s opinion no physical findings, to support the plaintiff’s claim of continuous pain. However, both Dr. McLure’s and Dr. Krane‘s examinations and test results show symptoms consistent with chronic pain syndrome and Dr. McLure has diagnosed depression secondary to chronic pain. [95] In his letter of April 14, 1994, to Dr. Molyneaux, Dr. MacLean described the plaintiff as Afully disabled@. In a letter to Dr. Molyneaux on January 31, 1996, Dr. MacLean did not repeat this opinion. He merely reiterated what the plaintiff told him A. . .that he was no better than when I had seen him in April, 1993. @ He referred to the plaintiff as being quite stressed over the litigation and recommended that he be started on antidepressants. At trial, Dr. MacLean felt that tricyclite anti-depressants might help the plaintiff and that he should also try some more gentle physiotherapy. [96] Dr. Yabsley last saw the plaintiff in September, 1996, for the second time. Under the heading, Impressions, in his letter of September 4, 1996, he states, A. . . I do feel confident in stating that there is and has not been shown to be any evidence of neurological or significant musculoskeletal injury or consequences from this accident @. He concluded by stating he felt the plaintiff’s problems are subjective and largely functional. [97] Dr. MacLean in his testimony stated that the lack of physical findings is not the issue in chronic pain syndrome and disagreed with Dr. Yabsley on this point. However, Dr. Yabsley did state there were positive findings of nonorganic illness. Dr. Yabsley’s position was not that the plaintiff did not have functional difficulties, but that there were no physical findings to support his complaints by September, 1996. [98] Dr. Adams felt that physical evidence could be found to support the plaintiff’s complaints by examining isolated joints in the spine. Dr. Yabsley disagreed that valid conclusions can be draw from this type of examination. Dr. MacLean also testified that the only objective physical findings with the plaintiff @ . . . are tenderness and some restriction of movement which is quite variable @. He also stated he felt most doctors do not estimate ranges of motion. On this point, I accept the evidence of Dr. Yabsley over that of Dr. Adams, as Dr. Yabsley has by far more experience in orthopedic medicine. Dr. Adams states that the plaintiff will continue to need chiropractic treatment once a week. However, this is only a maintenance treatment and would not do anything to alleviate his depression as diagnosed by Dr. McLure. [99]

Dr. McLure states in his report that Aalthough some of these (functional) problems

Page: 23 may be related to the physical trauma of the accident, the entire profile is more suggestive of repercussions associated with dysthymia (depression) and Chronic Pain Syndrome @. This is not entirely at odds with Dr. Yabsley’s comments at page 7 of his report of September 4, 1996 when he said A. . .His problems are subjective and I think largely functional@. At trial, Dr. MacLean also felt the plaintiff suffers from chronic pain syndrome. Considering all of the evidence, I find that the plaintiff suffered a moderate severe hyperextension injury which subsequently led to his present condition of dysthymia and chronic pain syndrome. Causation: [100] In Athey v. Leonati (1996), 3 S.C.R. 458, the Supreme Court of Canada discussed the issue of liability for loss where it is created by tortious and non-tortious causes. [101] The Court set out the general principles to be followed in determining causation as follows: Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: . .. The general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: . . . The ‘but for’ test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence Amaterially contributed @ to the occurrence of the injury: . . . A contributing factor is material if it falls outside the de minimis range: . . . In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision;. . . it is ‘essentially a practical question of fact which can best be answered by ordinary common sense’. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. . . . As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

Page: 24 [102] The Court discussed pre-existing conditions at page 473: The so-called ‘crumbling skull’ rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s ‘original position’. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: . . . Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: . . . This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[103] In this case, the plaintiff suffered a moderate severe hyperextension injury, which has developed into chronic pain and depression creating functional impairments. While the depression and chronic pain are secondary to the plaintiff’s physical injury and, as Dr. MacLean pointed out, A his complaints arose after the accident as part of chronic pain syndrome, so he tied it to the accident @, there is no medical evidence to suggest he would have developed chronic pain and/or depression in the absence of this collision. Accordingly, I find that the plaintiff’s depression and chronic pain arose as a result of this collision. Degree of Disability: [104] This raises the question of the degree to which the plaintiff has been disabled postaccident. The plaintiff was able to work as a fisherman prior to the 1992 accident. He could operate a small potato-growing operation and build small boats. He also used to buy, sell and trade items C buy something cheaply, fix it up and resell it. He felt he did pretty well because he could do all his own work. He fixed car and truck engines and repaired boats. He had some residual effects from the 1986 accident, but for all practical purposes he had recovered and could earn a living in a field he enjoyed. Since the accident in 1992, the plaintiff says he is unable to return to fishing because it is very hard manual work and he cannot stand or hold his head up for any length of time. [105] In June, 1993, the plaintiff and his wife opened a garage called B&B Repairs and has sold used cars out of it. The plaintiff regarded the B&B garage as an investment for himself and income for his wife. He put money into the garage, and gave his wife a lot of advice, helping her buy the tools. He negotiated the agreement to buy the building, purchased a tow truck and hired the mechanics. He admits he was the person with the mechanical and business experience. He set up the electricity and phone and his wife arranged for Worker’s Compensation. He made the arrangements with most of the

Page: 25 suppliers. At the garage he picked up parts for the mechanic and towed vehicles. He also paid bills at the end of the month and sold some cars off the lot. He could not do much mechanical work because he could not use his hands over his head. He also arranged for credit or payment for customers, dealt with complaints about the mechanic, paid the supplier and picked up parts. For all practical purposes, he operated the business. The plaintiff’s tools were stolen in 1996 and were not insured, so he closed B&B Repairs in August, 1997. The plaintiff testified the garage did not work out because he could not concentrate on the details and he could not deal with the public. The unaudited financial statements filed for B&B Repairs indicate the business suffered a loss. However, the plaintiff, or Mrs. Beaton, took a draw of $29,000 in the first year of business and over $8,500 in the second year. In addition, there is evidence that the plaintiff operated somewhat on a cash basis, so the records may not be complete. At least one portion of the ledger does not coincide with the oral evidence. Dr. Molyneaux testified that he purchased three vehicles from the plaintiff ranging in price of $800 to $2,000. The ledger entry for B&B sales showed only one entry for Dr. Molyneaux at $100. While the business remained open until August, 1997, there were no financial reports filed for 1996, nor was Mrs. Beaton’s income tax return filed, although the business was registered in her name. Given these discrepancies, I am not convinced that the garage business was as much a financial failure as the plaintiff indicates. [106] Since the accident, the plaintiff purchased a mobile home which he has used on weekends and taken to New Brunswick and Nova Scotia on three occasions. The plaintiff also had a race car, which was looked after by someone else, and the plaintiff went to about three-quarters of the car races. He made a special chair to sit in. He drove the tow truck for B&B Repairs, as well as his own vehicle. He describes himself as a fast driver, but says he stays around the speed limit. The plaintiff and his wife also owned two rental properties from which they receive income, although this is not shown on their income tax returns. [107] The defendant contended that the plaintiff is not as injured as he claims to be, as he learned the language and symptoms of injury from his 1986 accident. It claims the defendant is malingering, i.e. fabricating his symptoms. While there are similarities in the symptoms arising from the two accidents and the plaintiff’s reaction to his physical injury, the tests performed by Dr. McLure do not indicate malingering. However, the plaintiff is repeating a pattern of failing to follow medical advice. In 1988, Dr. Muzumdar recommended that the plaintiff go to the Back Education Class. There is no evidence this was done. Dr. Kass recommended a supervised exercise program and this was not followed. In 1995, Dr. Krane recommended a chronic pain clinic and there is also no indication this was followed up. The plaintiff continues to be treated by Dr. Adams who provides temporary relief only. Dr. McLure made a series of recommendations in his report dated May 22, 1997: I would strongly recommend that Mr. Beaton be presented with an overall perspective on some of the major goals on a self-management training program

Page: 26 for chronic pain. Major goals include the following: 1. Improve ability to divert attention away from pain sensations through activities and mental techniques. 2. Improve overall physical condition through physical reconditioning exercises. 3. Learn how to increase and better modulate daily physical activities. 4. Learn ways to cope more effectively with episodes of intense pain without having to rely on narcotic analgesics. 5. Learn how to manage and cope with episodes of depression. 6. Learn how to manage anger better and to behave more assertively. 7. Learn how to cope more effectively with tension, anxiety, stressful life demands, and interpersonal conflict.

[108] There is no evidence the plaintiff has followed this course or any other plan other than continued chiropractic treatment and taking noni juice. Previously Dr. MacLean had recommended that the plaintiff be given antidepressants. The plaintiff took them for a brief period and threw them out because he says they aggravated his bowel problem. This may be so, but Dr. Rosenberg’s letter of July 15, 1997, to defence counsel indicates that there are other antidepressant drugs available which could be tried without adverse effects on his bowel. While these drugs may not treat chronic pain disorder, as Dr. MacLean suggests, they can be used to treat the plaintiff’s depression. [109] Prior to the 1992 accident, the plaintiff exhibited a significant degree of resourcefulness in working at a variety of jobs. He has also exhibited similar resourcefulness since the accident in taking on B&B Repairs and acquiring a second rental property. [110] Videotape surveillance was taken by Paul Saulnier at the defendant’s request in July, 1994. It shows the plaintiff walking outside his garage area, lifting and putting a relatively large object into a truck, bending, jogging and moving his arms while talking. These activities do not coincide with the plaintiff’s description of his physical limitations. Mr. Saulnier also testified he observed the plaintiff through binoculars during the same period and he did not appear to have any difficulty getting in and out of his vehicles. [111] Dr. McLure’s evidence as to disability was the strongest at trial and he stated that

Page: 27 while the plaintiff’s test performance was below the expected level given his IQ and education, the test results did not amount to impairment. Dr. McLure was not asked for a future prognosis. Dr. MacLean had said in his 1994 report that the plaintiff was Afully disabled@. This diagnosis was not repeated at trial, nor was Dr. MacLean asked about any permanent disability or future diagnosis. I find that Dr. MacLean’s opinion in 1994 is now out of date, particularly given the plaintiff’s own evidence that he is much improved over two to three years ago. Considering all of the evidence, I find that the plaintiff was unable to earn income at his pretrial level up to the date of trial because of injuries arising from the collision. However, he has not proven that he is permanently disabled. Future Loss [112] Prior to the accident, the plaintiff made his living from activities requiring physical strength and agility. Since the 1992 accident he says he has been unable to do so. However, he did operate a garage and used car business, drove a tow truck and drove a vehicle on a regular basis. In Cairns v. Harris (1994), 1 P.E.I.R. 53 (P.E.I.S.C.A.D.) the appeal division of this Court adopted the position of Mr. Justice Doherty in assessing future pecuniary loss in Graham v. Rourke (1990), 74 D.L.R. (4th) 1, where he said at p. 12. A trial judge who is called upon to assess future pecuniary loss is of necessity engaged in a somewhat speculative exercise: Andrews v. Grand & Toy Alberta Ltd. (1978), 83 DLR (3d) 452 at pp. 467-8, [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577. The ultimate questions to be determined - will the plaintiff suffer future loss and, if so, how much? - cannot be proved or disproved in the sense that facts relating to events which have occurred can be proved or disproved. A plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities that her future earning capacity will be lost or diminished or that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation: Schrump v. Koot (1977), 82 DLR (3d) 553 at pp. 556-9, 18 O.R. (2d) 337, 4 C.C.L.T. 74 (C.A.) . . .

[113] The real and substantial risk test involves two steps: (1) the threshold must be satisfied: the likelihood of a future event happening must not be too small or insubstantial; and (2) the claim must be supported by proper evidence. Englehart, K., Proof of Future Events: In Support of the ‘Simple Probability’ Burden of Proof (1987) 8 Advocates’ Quarterly, 163. [114] At the time of trial the plaintiff’s earning capacity has been reduced. The question is by how much and for how long? The evidence from Dr. McLure and Dr. MacLean is that he should be treated for depression and chronic pain. This could require some time, and would result in a reduced income during this period. There will also be some costs associated with following the regime recommended by Dr. McLure. Unfortunately, as neither Dr. McLure nor Dr. MacLean was questioned as to a future prognosis for the

Page: 28 plaintiff, I am placed in a very difficult position in terms of assessing the degree of risk of future income loss. [115] In White v. Slawter (1996), 149 N.S.R. (2d) 321 (N.S.C.A.) (leave to appeal denied, January 30, 1997) the Nova Scotia Court of Appeal discussed the calculation of future loss of income in chronic pain cases at paragraph 129: [129] It is common practice in assessing general damages for lost future income in chronic pain cases to make a global award without attempting to link it directly to an arithmetical calculation of annual income times the number of years until the conventional retirement age of sixty-five.

In the five years prior to the collision, the plaintiff’s average income as calculated from his tax returns was $14,265, from fishing and unemployment insurance. This is not the A$20,000 net@ which the plaintiff testified he would be satisfied with, but the plaintiff is entitled to be put in the same position he was in at the time of the collision, not in a better position. [116] Given the paucity of evidence as to his future prospects, a global approach must be taken as there is little prospect of arriving at any realistic assessment through a standard arithmetic calculation. At the time of trial the plaintiff could not return to fishing, in part because he had transferred his licenses although there was no legal requirement to do so. He did not look into the prospects of retraining. Plaintiff’s counsel argues retraining is not realistic because the plaintiff only has Grade 8 education. I do not agree. The plaintiff has already taken upgrading. He has a mechanic’s course and a 40-ton Aticket@ to operate boats up to 40 tons. This indicates to me that he can be trained when he is interested. He also has some experience in sales. [117] I must also consider the risk that the plaintiff will not benefit from treatment as recommended by Dr. MacLean and Dr. McLure and that he may always suffer some residual effects of chronic pain. Bearing in mind these factors, and attempting to strike a fair balance between the plaintiff’s future requirements and the appellant’s responsibility to compensate. I would therefore assess his damages for loss of future income and medical costs at $45,000. Damages: [118] In Cairns v. Harris, supra, Chief Justice Carruthers, in the Appeal Division of this Court, discussed the difficulties of assessing non-pecuniary damages in personal injury cases. Pain and suffering, loss of amenities and reduced life expectancy are intangibles. They are not something that can be easily valued. (p. 66)

Page: 29 He adopted the position of Chief Justice Dickson in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 when Chief Justice Dickson concluded that the functional approach provides the most rational justification for non-pecuniary loss compensation. [119] Chief Justice Carruthers continued at p. 66: The Supreme Court of Canada revisited the issue in Lindal vs. Lindal, [1981] 2 S.C.R. 629, where it states that the functional approach is the proper approach to be applied in assessing non-pecuniary damages. It attempts to assess the compensation required to provide the injured party with reasonable solace for his or her misfortune. The amount of award should not just depend upon the seriousness of the injury, but upon its ability to improve the condition of the victim considering his or her situation.

[120] In Penso vs. Solowan and Public Trustee, [1982] 4 W.W.R. 385, Mr. Justice Anderson of the British Columbia Court of Appeal discussed the functional approach at p. 397: . . . in order to achieve uniformity and predictability, first the facts should be analysed so as to determine the appropriate conventional award. This analysis will require comparison with awards made in previous cases for similar injuries. In making such a comparison, an allowance should be made for inflation having regard to the dates of previous award. After making such a comparison, the appropriate conventional award should be adjusted to meet the specific circumstances of the individual case, including ‘need for solace’ of the particular plaintiff. . . . I summarize my remarks with respect to the ‘functional’ approach as applied to other than very severe cases as follows: (1) Evidence as to the need for particular kinds of ‘solace’ and the cost of meeting such need will, as a general rule, become irrelevant. (2) Awards should be conventional, adjusted to meet the specific circumstances of the individual case. Adjustments under this head, having regard to the ‘need for solace’ of a particular plaintiff, should be made on a subjective basis.

[121] Some of the awards in this jurisdiction in which parties have suffered from chronic pain and myofascial pain syndrome are $40,000 in Dennis v. Gallant (1991), 1 P.E.I.R. B4, where the plaintiff suffered an injury to spinal muscles and ligaments in the neck area which had developed into a chronic pain syndrome; $45,000 in general damages in Gunn v. Larter (1992), 2 P.E.I.R. D-5 where the plaintiff, who had a pre-existing osteoarthritic condition, suffered from a soft tissue induced injury to the lumbrosacryl spine area; $25,000 in Cairns v. Harris, supra to a seventy-five year old male plaintiff for a moderately severe and persistent mechanical neck pain with co-existing myofascial pain

Page: 30 syndrome and aggravation of a degenerative cervical disk disease. The female plaintiff in Cairns v. Harris, who was classified as moderately disabled, received $40,000 for pain and suffering from myofascial pain syndrome which had advanced into the early stage of chronic pain syndrome; $30,000 was awarded for pain and suffering and loss of housekeeping capacity for mild soft tissue whiplash injury involving the spine and some pain in the neck, shoulder and lower back, in Terris v. Crossman and Crossman (1995), 1 P.E.I.R. 362. [122] In Nova Scotia in Smith v. Stubbert (1992), 117 N.S.R. (2d) 118, Justice Chipman discussed the assessment of non-pecuniary damages in cases involving whiplash injuries which lead to chronic pain syndrome. See p. 127: I have considered a number of recent cases involving damage awards for injuries not unlike those sustained by the respondent. Most are cases dealing with that small percentage of people who do not recover from soft tissue injuries of the neck but suffer long-term discomfort which almost invariably brings on emotional problems. Some of the cases dealt with other injuries in addition, and others dealt with injuries of a different nature but having the common feature of long-term chronic pain. No two cases are alike and even similar injuries will impact differently on different people. In the cases reviewed, the symptoms persisted and usually many doctors were involved in the treatment and/or assessment of the injury. Each case was decided by a different court at a different time and a precise range of awards cannot, with precision, be laid down. In broad terms the range for non-pecuniary damage awards for such persistently troubling, but not totally disabling, injury is from $18,000 to $40,000. . . .

[123] Justice Chipman then referred to Andrews v. Grand & Toy (Alberta) Ltd. supra, and quoted from Justice Jones in Joudrey vs. Dhalla (1985), 66 N.S.R. (2d) 245 when he said at page 249: The Supreme Court of Canada has made clear that we should not permit the kind of extravagant awards given in the United States.

[124] In Valencourt v. Husain (1994), 132 N.S.R. (2d) 291, a thirty-one year old woman with a moderate to severe whiplash, complained of continual pain and was unable to continue her regular employment but made no effort in the next five years to obtain alternate employment. She was not totally disabled and was able to work, although performance and some function would be impaired. The Court awarded her $50,000 general damages for non-pecuniary loss, including an amount for loss of future earning capacity. [125] In Kelly v. Hadley (1995), 138 N.S.R. (2d) 272, a twenty-three year old woman suffered with a close to severe whiplash, continued to suffer neck and shoulder pain and had some restriction in movement. Stress aggravated her recovery. Her general damages

Page: 31 were assessed at $36,500. [126] In White v. Slawter, supra, the Nova Scotia Court of Appeal dealt in some detail with calculation of general damages for persons with chronic pain syndrome. The Court stated at paragraph 84: [84] It appears from the evidence that for the purpose of determining damages, chronic pain syndrome consists of three elements: 1. Physical injuries suffered in a tortious accident which do not account for the degree of disability complained of by the plaintiff and, indeed, which may have wholly healed without continuing disabling effect. 2. Continuing physical discomfort from causes secondary to the original injury, which may include cramping, atrophy, shortening or other stresses in the affected muscles and tendons resulting from activity during and following the healing process. 3. A psychological overlay, in which depression and anxiety may be factors, resulting in exaggerated symptoms of pain or other sensations such as numbness which may be wholly psychosomatic in origin. ... [86] The rule that the defendant must take the plaintiff as he finds him. . . is not as broad as it may first appear in the context of chronic pain syndrome. It relates to the time of the accident, not to the later period when secondary effects develop and it admits of only two broad categories of plaintiff: one who is capable of making rational choices, or one who is not. . . . The presumption is that the plaintiff will behave like Aa reasonable and prudent man @ with respect to his injuries: . . . That is, he will not knowingly make them worse, and he will take all reasonable steps to make them better. A defendant is not required to foresee that the plaintiff will not behave rationally unless the plaintiff can show that he was not a rational person at the time of the accident. The presumption is rebutted if the plaintiff at the time of the accident is suffering from a psychological infirmity that deprives him of the capacity to make rational choices. . . In that case, he is excused from behaving rationally, that is, he can be excused from his duty to mitigate, and the defendant must bear the consequences. [87] Otherwise, in chronic pain syndrome cases, the plaintiff’s failure to mitigate his damages by following the recommendations of doctors and other professionals as to medication, physiotherapy, surgery, exercise, and return to work will relieve the defendant of the duty to compensate. Doctors alone cannot ensure successful recovery within parameters dictated by the severity of

Page: 32 the original injuries without the participation of the patient. . . ... [88] If the plaintiff diligently attempts to mitigate his damages and no improvement results, he will then be entitled to recover damages in full measure for the disabilities that continue from secondary causes related to the initial injuries, even in the event of full recovery from the initial injuries. If, however, there is medical evidence that a substantial improvement could have been expected in the plaintiff’s condition if he had followed medical advice, and he failed to follow it, then he will be deprived of damages resulting from his own failure. This will be taken into account in the assessment of damages even if there is only a likelihood falling well short of certainty that the recommended treatment will be successful. See Janiak. [89] The activities --- work and/or exercise --- required to keep soft tissue injuries from developing into chronic pain syndrome are likely to be painful. This is recognized by the medical profession and summed up by saying that the activities Ahurt but do no harm @. A diligent plaintiff deserves to be compensated by increased damages for pain and suffering for what he must endure on the road to recovery, but he is not entitled to refuse the necessary discomfort and claim compensation from the defendant for the resulting disability. The governing concept is reasonableness: a reasonable person must be expected to endure a reasonable degree of pain in an effort to avoid longterm disability. . . .

[127] The defendant states that the plaintiff has failed to mitigate his damages by failing to take the necessary therapy to relieve his pain. The plaintiff did not engage in a supervised exercise program, as recommended by Dr. Kass. He certainly has not followed the advice of Dr. MacLean regarding taking anti-depressants. As Dr. MacLean pointed out, AUnfortunately he has little faith in conventional medical therapy and chooses alternative health care in chiropractors which indeed has been the most helpful modality in his treatment.@ (Letter of Dr. MacLean, April 14, 1994). Nor has the plaintiff followed the program outlined in Dr. McLure’s letter of May, 1997. He has engaged in exercises recommended by his chiropractor and walks and uses a Tens machine. However, in the absence of direct medical evidence that if the plaintiff had followed the recommendations of Dr. Kass, Dr. MacLean and Dr. McLure he would have had substantial improvement, I cannot find a failure to mitigate. [128] In this case the plaintiff has suffered pain for approximately five years postaccident and continues to do so to varying degrees. His injuries have had a negative impact on his relationship with his wife and his child, and he cannot participate in activities with his child which he otherwise would do. It has also had a somewhat restricted effect on his social activities, although he is able to participate in enjoyment of his mobile home and car racing. Considering these factors, and the case law for similar injuries, I award the plaintiff the sum of $40,000 in general damages, less $10,000 advanced by the defendant.

Page: 33 Special Damages: [129] The plaintiff claims lost income for the period since the accident to date of trial. His counsel has calculated his average annual income from fishing and unemployment for the five years prior to the accident at $14,265. As I have found the plaintiff could not return to fishing or similar employment for this period, he is awarded damages for lost income at the rate of $14,265.00 at the agreed multiplier of 6.48, less the amounts received from Section B payments ($13,060), U.I. ($8,064 and $119.00 in 1993) for a total award of $71,194.20 for past lost income. [130] The plaintiff is also awarded $5,571.90 for outstanding medical expenses as calculated at Tab 8 of Exhibit P-4, reduced by the sum of $360.00, representing the reference to the trips to St. John which were not taken. [131] In conclusion, the plaintiff is awarded damages as follows: General Damages Past Lost Income Special Damages Future Loss

$40,000.00 71,194.20 5,211.90 45,000.00

C

Less $10,000 advanced

Interest: [132] At the close of argument, counsel raised the issue of how interest should be calculated. However, they did not present any material to support their respective positions. They also did not speak to costs. I am reserving on the issues of interest

Page: 34 and costs and the parties may speak to these issues once they have filed material supporting their respective positions and have obtained a hearing date.

____________________________ Matheson J. July 14, 1998