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J.S. c. Club de golf Hillsdale inc. |
2011 QCCS 7306 |
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JC 2373 |
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CANADA |
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PROVINCE OF QUEBEC |
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DISTRICT OF |
MONTREAL |
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No: |
500-17-040944-087 |
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DATE: |
December 5, 2011 |
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______________________________________________________________________ |
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IN THE PRESENCE OF: |
THE HONOURABLE |
LOUIS-PAUL CULLEN, J.S.C. |
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______________________________________________________________________ |
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J.S. |
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and |
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S. K. |
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Plaintiffs |
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v. |
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CLUB DE GOLF HILLSDALE INC. |
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Defendant |
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______________________________________________________________________ |
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JUDGMENT |
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[1] In 2005, J.S. was injured on a golf course owned and operated by Club de Golf Hillsdale Inc.
[2] He claims compensation in the amount of $980,062.53 and asks that his rights be reserved with respect to his unconsolidated urological condition.
[3] Mrs. K. claims $40,000.00 for the damages she allegedly suffered personally as a result of the injuries caused to her husband.
[4] Hillsdale no longer contests its fault. It admits that Mr. S. has suffered damages, including some permanent partial incapacity, but contends that the accident did not cause all of the damages for which he is claiming compensation. It also opposes the reserve of his rights as well as Mrs. K.'s claim.
[5] Mr. S.'s parents separated when he was an infant.
[6] At age 8, he started delivering newspapers to help his mother support his two older sisters and himself.
[7] In 1978, his mother married. He took an apartment and began supporting himself. He worked during daytime and took night classes at McGill University to achieve his career goal of owning a company.
[8] The plaintiffs married in 1985.
[9] Both worked. They employed full-time help for domestic chores.
[10] In 1997, having unsuccessfully tried to have children, they adopted a son, born in 1996.
[11] In April 2000, Mrs. K. was diagnosed with breast cancer. She underwent a double mastectomy and chemotherapy, followed by reconstructive surgery in Canada and abroad.
[12] She continued working,[1] except when this became physically impossible.
[13] That same year, the plaintiffs learned that their son was autistic.
[14] Mr. S. took up golf. He became passionate about the sport and rapidly improved.
[15] In 2001, Mrs. K. found another tumour and underwent radiotherapy.
[16] Mr. S. was supportive. Their physical relations continued. According to Mr. S., that relationship was "healthy" and "normal" and she "never refused sex from me or with me".
[17] In 2003, Mr. S.'s stepfather passed away. That year, Mr. S. opened a company of which he was the only shareholder.
[18] In 2004, Mr. S. found his mother in diabetic shock. She was hospitalized, diagnosed with Alzheimer's and placed in a specialised residence. Mr. S. regularly visited her and began to support her financially after his stepfather's estate was exhausted.
[19] By 2005, Mr. S. regularly did ten sets of 100 sit-ups and the same number of push-ups. He had played AA baseball and hockey in his youth, and had earned a black belt in karate. He still occasionally played hockey and softball.
[20] He golfed as often as he could while striving not to neglect his family and business. He would begin his golf season in the USA as early as March and extend it until snow was on the ground.
[21] By August 2005, at age 46, he typically played golf five to six times a week and worked 60 hours a week, including two evenings.
[22] The accident occurred on the morning of August 23, 2005.
[23] On the 8th hole of the Laurentian course at Hillsdale, Mr. S. hit his ball into a sand trap.
[24] As he approached, he saw groundskeepers aboard two tractors towing a cable. The nearest groundskeeper (Mr. Leduc) stopped his machine. The furthest groundskeeper (Ms Baron) continued to advance, gradually disappearing behind a hill, unaware of the impending risk to Mr. S..
[25] To reach his ball, Mr. S. pushed his rickshaw-type cart over the immobile cable. Before he had time to step over it, the cable suddenly pulled his feet into the air with such force that contusions appeared on the top of both feet three days later.[2]
[26] The only other eyewitness was Sébastien Leduc who operated one of the tractors. Mr. Leduc, then 17, severed his ties with Hillsdale five years ago. He impressed the Court with his credible efforts to provide the most accurate information possible.
[27] Mr. Leduc recalled that the cable suddenly became taut, rose no more than three feet, struck Mr. S. in the lower abdomen and threw him forward. Mr. S. fell head first over the cable to the ground where he writhed in agony. He did not strike his golf cart. The cable remained taut, approximately three feet in the air, one or two feet behind Mr. S.. Mr. Leduc was stunned.
[28] Mr. S. was more than stunned. His inconsistent attempts at describing what happened after the cable struck him intertwine impressions, retrospective deductions, and conjecture.
[29] In substance, Mr. S. told the Court that after being struck by the cable he instantly found himself in an inverted vertical position, his feet six and a half feet into the air (Mr. S. is five feet four inches tall) where he somersaulted, his back and buttocks hitting the ground first. He nonetheless continued tumbling until his feet struck the ground, twisting his left leg. At some point, the handle of his golf cart jammed him one inch below the belt.
[30] After the fall, Mr. S. laid on the ground in great, throbbing pain. He was convinced that his testicles had been entirely ripped away from his body and the pain was so great that he thought he would have a heart attack.
[31] Paramedics were called. They bundled him up to prevent any motion and strapped him to a gurney. He was taken by ambulance to the Saint-Eustache Hospital Center.
[32] He had never experienced such pain.
[33] The personnel at the Saint-Eustache Hospital Center spoke French. The emergency room doctor noted (in French) that Mr. S. had been thrown forward and somersaulted.[3] He also noted that Mr. S. was saying that he had been dropped from ten feet and commented that this was "mechanically impossible".[4] The doctor noted further that Mr. S. could not urinate, had pains "everywhere" and was "very theatrical". He thought that the story was "strange" and that it "did not correspond to the pain level".[5]
[34] Mr. S.'s experience at Saint-Eustache Hospital was dismal. He had to be catheterized to urinate. He was in great pain and the numerous tests that he underwent came back largely negative.
[35] During this hospitalization, the following diagnoses were made:
- Dorsolumbar sprain/abdominal pain by contusion (provisional diagnosis);
- Trauma with impact on testicles and probable stretching of abductors[6] (sic);
- Trauma with scrotal contusion;
- Contusion of the penis and scrotum;
- Scrotal contusion with persisting pain with secondary mobility trouble and loss of autonomy;
- Trauma with contusion and bilateral scrotal hydrocele.
[36] These diagnoses corroborate trauma to Mr. S.'s lower back, abdomen, thigh, penis, testicles and scrotum.
[37] Loss of mobility and pain when sitting down and getting up (which are mentioned in the hospital record)[7] also corroborate an undiagnosed labrum tear and partial tear of the femoral ligament, as will later be seen.
[38] Mr. S. was discharged five days after his admission.
[39] He was prescribed Diludid, a strong painkiller.
[40] Once home, he remained in pain. Defecating was painful. He experienced difficulty urinating and felt that he could not empty his bladder. Lying down and getting up from bed was an ordeal. He frequently got up at night to urinate. His left leg was extremely sensitive, so much so that he could not sleep with a blanket on his left side. He hardly slept.
[41] He could not lie down, sit or turn without help.
[42] He did not find Mrs. K. as accommodating to him as he had been to her.
[43] He became angry at her.
[44] He began spending nights on a sofa, in the basement.
[45] He experienced erectile and ejaculatory problems. This had never happened to him before.
[46] He rested best at work, sitting in his office, a pillow on his seat, another pillow on his desk where he laid his head.
[47] On September 19, 2005, more than three weeks after the accident, Dr. Zylbergold, his family physician, summarized his various symptoms:[8]
Mr. S. was catapulted into the air and thrown down heavily on the ground (…). He suffered severe bilateral hydroceles as well as severe scrotal edema. He also has various contusions to the abdomen, lower back and upper legs. He was in excruciating pain and was transported with difficulty to the Centre Hospitalier Saint-Eustache. There, he had to receive IM pain killers just to be able to do x-rays and ultra sounds and CT scans. (…) He was unable to urinate and required catheterization. The slightest of movements including sneezing and scratching his arms resulted in intense pain. He continues to experience throbbing right pubic pain and anterior anal pain. He is unable to lie down, sit up, or turn without help and with severe pains suprapublically and to both groins. He continues to have urinary frequency and is unable to fully empty his bladder. The force of his stream is diminished. Erections and ejaculations remain a problem. His pain medications knock him out. It is too early to comment if he will be left with any permanent disabilities or pain. There may be torn abdominal and groin muscles which are not aware of at present. For now, his pain nightmare continues.
[48] Dr. Zylbergold referred Mr. S. to Dr. Barry Gamberg, a sports medicine specialist.
[49] On November 17, 2005, while pointing out the difficulty of the case, Dr. Gamberg noted the following complaints that persisted almost three months after the accident, which included some relating to his hip:[9]
(…) He suffers from persistent pain and difficulty doing anything that requires abdominal contraction. He has difficulty sleeping because of the pain. He has pain when he urinates, frequency of urination and compromise of his sexual function.
On examination he has a protuberant abdomen. There is no testicular tenderness. Hip flexion and internal rotation is limited bilaterally. He is unable to initiate situp because of pain.
This is a difficult case as you know. (…)
[50] Dr. Gamberg diagnosed lower abdominal tear(s) and genito-urinary injuries. He referred Mr. S. to Dr. Yosh Taguchi, an urologist, and to Dr. Lianne Feldman, a general surgeon specializing in abdominal tears.
[51] On November 30, 2005, Mr. S. served on Hillsdale a letter of demand. No amount was claimed.
[52] Dr. Tagushi's follow-up is not in evidence, but Dr. Feldman requested an MRI of the pelvis and upper thighs.
[53] On June 2, 2006, Dr. Powell, a radiologist, did the MRI. He found indications of a partial tear of the left small adductor muscle and a small paralabral cyst "that may indicate an underlying tear in the labrum". He raised the usefulness of further evaluation with MR arthrography "if there is any suggestion of clinical symptoms which might be related to left hip labral tear".
[54] Despite Mr. S.'s documented hip symptoms, no immediate medical action was taken until 2008 in connection with this explicit advice. Physicians were focussing on Mr. S.'s spine as the apparent source of his symptoms.
[55] Meanwhile, from November 2005 to June 2006, Mr. S. was evaluated and followed by Dr. Tinco Tran, an orthopaedic specialist who requested "EMG - Electromyography and Nerve Conduction Studies".
[56] In July 2006, Mr. S. purchased an electric bed to facilitate getting in and out of bed. He resumed playing 18-hole rounds of golf, increasing his dosage of painkillers in order to play.
[57] The "EMG - Electromyography and Nerve Conduction Studies" were carried out on September 27, 2006.[10] Dr. S. Bekhor, a neurologist, reported to Dr. Tran possible radiculopathy L5-S1 and duly noted Mr. S.'s complaints relating to his left hip:
(…) Has been complaining from painful sensation from the low back also involving the left hip radiating to the groin. He had intermittent electric sensation also experienced recurrent symptoms of numbness and heaviness from both lower extremities, more to the left. (…)
[58] Dr. Tran prescribed Lyrica, a painkiller that greatly alleviated Mr. S.'s discomfort. Dr. Tran further referred Mr. S. to Dr. Richard Lambert, a physiatrist.
[59] On January 16, 2007,[11] Dr. Lambert, saw Mr. S. for lumbar injections. He noted that Mr. S. suffered "important" pain, mainly when reclining, and that he had difficulty moving, although he could play golf. Front bending of a leg would greatly increase his pain. Lumbar palpation produced little pain. Osteoarthrosis having been detected, Dr. Lambert performed facet blocks (L4-L5 and L5-S1).
[60] Mr. S.'s condition improved markedly. Within two to three weeks, however, his symptoms reappeared.
[61] On February 6, 2007, Mr. S. consulted Dr. Palayew, a pneumologist, who noted that he was complaining of "a choking sensation at night that awakens him approximately ½ hour after going to sleep. He snores loudly, has observed apneas and denies real excessive daytime sleepiness." Dr. Palayew arranged for a sleep study in the near future.
[62] On March 19, 2007, Dr. Zylbergold noted that Mr. S.'s "nightmare continues", summarizing his symptoms, condition and medications as follows:[12]
Mr. S. continues to feel numbness from his waist to his knees. More so on the left side. He often has to get up in the middle of the night to walk for 5 to 10 minutes to get his legs working. He could not sleep in a regular bed because he could not get up without much pain and the need for assistance. (…) He continues to have urinary frequency and the feeling of incomplete voiding. He has erectile dysfunction and much pain during sexual relations. He is unable to do much exercise since he cannot even do one sit-up, he cannot run, jog or even walk quickly without sever (sic) pain.
He has taken a variety of medications with little or no relief. These include Tylenol, Advil, Naproxen, Ativan, Flexeril, Lyrica, Pantoloc and Dilaudid. He has used a scrotum support and a black brace which is too uncomfortable to wear.
He is unable to enjoy sports or to partake in normal parental activities with his 10 year old autistic son.
(…) Also a sleep study is pending due to a significant sleep related breathing disorder. (…)
[63] On March 26, 2007, Mr. S. saw Dr. Lionel Béliveau, a psychiatrist, for an expert evaluation of the psychological damage suffered in relation to the accident.
[64] Dr. Béliveau noted that Mr. S. had been certain that he was going to die as a result of the accident, and that, more than one and a half years later, he remembered it daily, regularly experiencing anxious flashbacks, and having traumatic nightmares almost every night.[13] Dr. Béliveau also noted Mr. S.'s hypervigilence on a golf course, his incapacity to sleep more than three hours a night due to nightmares, his pains and his frequent need to urinate, as well as his incapacity to sleep one single night with his wife since the accident. Mr. S. told Dr. Béliveau that he tired more easily, was less productive, had difficulty focusing, experienced memory losses, and was more impatient and irritable. He felt guilty and useless, having sex with his wife was difficult because orgasm was very painful, he was occasionally discouraged and wished to die, although he had no intent to do anything to that end. Mr. S. further reported various anxieties. His medication included painkillers (Dilaudid and Advil).
[65] Dr. Béliveau considered that Mr. S. cooperated willingly without trying to dramatise or exaggerate his symptoms and problems. Cognitive impairment was not apparent, but Mr. S. did express sorrow, reduction of his self-esteem, uselessness, loss of capacity to experience positive emotions, discouragement and morbid ideas. In Dr. Béliveau's opinion, Mr. S. continued to present, in relation to the accident, after-effects of post-traumatic stress as well as an adjustment disorder with depressed mood. He concluded that Mr. S. was seriously affected in his social and professional functioning as well as in his personal daily activities. Dr. Béliveau therefore scored Mr. S. at 55-60 on Axis V[14] of the Multiaxial Assessment system in the DSM-IV,[15] where a score of 91-100 applies to superior functioning and an absence of any symptom, whereas a score of 55-60 indicates "moderate symptoms or moderate difficulty in social, occupational, or school functioning".[16] Dr. Béliveau considered that Mr. S.'s psychological condition was unconsolidated. He suggested psychotherapy and anti-depressive medication. He provisionally evaluated Mr. S.'s psychological impairment as "moderate" or class III of the American Medical Association ("AMA") scale, the equivalent to category of severity 3 and a permanent partial incapacity of 15 % in the Regulation respecting lump-sum compensation for non-pecuniary damage[17] pursuant to the Automobile Insurance Act (the "SAAQ" scales).[18]
[66] On May 15, 2007, Dr. Lambert again saw Mr. S..[19] His condition had considerably improved after left facet blocks in the lumbosacral region. Dr. Lambert suggested bilateral facet blocks at L4-L5 and L5-S1.
[67] The facet blocks having failed to remedy his symptoms, Mr. S. sought a second opinion from Dr. Mohan Radhakrishna, a physiatrist, regarding the future treatment proposed by Dr. Lambert. Dr. Radhakrishna disagreed with Dr. Lambert's proposed course of action and referred Mr. S. to Dr. Simon Tinawi, a physiatrist specializing in physical medicine and rehabilitation, to determine if anything more could be done for Mr S.'s lower back pain and to take charge of him in the pain program at the Constance-Lethbridge Rehabilitation Center.
[68] By the summer of 2007, with medication, Mr. S. played three to four 18-hole rounds of golf a week.
[69] On November 14, 2007, Dr. Palayew and Dr. Marc Baltzan delivered their report regarding the sleep study carried out on February 10, 2007.[20] They concluded that Mr. S. had "severe sleep related breathing disorder which can account for his excessive daytime sleepiness." Testing at home was required to determine if Mr. S. could tolerate a breathing machine "which can make a big difference in terms of his daytime functioning and performance."
[70] The plaintiffs served their "Introductory Motion of First Instance" on January 31, 2008. Mr. S. claimed $2,975,000.00, which included $350,000.00 for "pain, suffering, loss of enjoyment of life, including severe psychological damages and trauma", as well as experts' fees in the amount of $15,000.00. Mrs. K. claimed $275,000.00 including $25,000.00 for "emotional pain, anxiety and anguish" and $250,000.00 for "loss of servitium and consortium".
[71] On February 15, 2008, Dr. Tinawi examined Mr. S. for the first time.[21] Mr. S. was slightly overweight, extremely stiff (he could not perform a pelvic tilt), very de-conditioned and emotional. Dr. Tinawi noted important pain in the left groin, testicles and scrotum as well as important radiations to the inferior limbs, Mr. S. describing a diffuse numbness of the entire left limb. Mr. S. reported that the pain would occasionally make him lose balance and fall. His abdominal muscles were very weak.
[72] Having found "tenderness" between Mr. S.'s T12 and L1 vertebrae, Dr. Tinawi concluded that Mr. S.'s low back pain originated from the (higher) thoracolumbar junction, which is linked to the testicular, lower back, hip and buttock areas. Dr. Tinawi's clinical impression was that of a chronic pain syndrome resulting from three conditions: (1) a left dorsolumbar condition, (2) global de-conditioning with weakness of the abdominal muscles, and (3) a psychosomatic condition associated to a probable anxiodepressive syndrome. Dr. Tinawi suggested facet blocks of the dorsolumbar hinges in conjunction with treatment at the Constance-Lethbridge Rehabilitation Center ("CLRC") where emotional support would also be offered.
[73] While on Lyrica and before his first meeting at CLRC, Mr. S. seriously contemplated committing suicide by electrocution.[22]
[74] On March 4, 2008, he attended an information meeting at CLRC. He was given a set of goals toward self-activation before entering the chronic pain management program.[23]
[75] Mr. S.'s progress was evaluated on April 9, 2008. He was also instructed regarding proper postures, breathing and relaxation techniques as well as given a new set of goals.[24]
[76] At Hillsdale's request, Dr. André Canakis conducted an expertise of Mr. S. on April 28, 2008. Dr. Canakis practiced as an orthopaedic surgeon from 1964 to 1996 after which he has been working full-time as a medical expert. He belongs to several professional associations, but did not lecture at any university or publish. The Court acknowledged his expertise as an orthopaedic surgeon.
[77] Mr. S. gave Dr. Canakis the following description of his accident:
(TRANSLATION) On August 23 2005, while the patient says he was on a golf course to play, he would have fallen when knocked down by a cable pulled by all-terrain vehicles including one that would have moved without his knowledge. He says having been violently catapulted to the ground when the cable caught his legs at ankle height and, after several summersaults, would have landed a certain distance away.
[78] Dr. Canakis noted that Mr. S. had told the doctor who took his history on the day of the accident that he had been "thrown 10 feet into the air" which according to that doctor was "mechanically impossible", that the same doctor had written in the medical file that Mr. S. complained of pain "everywhere" and of pain "+++" and that he had also written that Mr. S. was "very theatrical".
[79] Mr S. reported many symptoms to Dr. Canakis: sleep limited to one hour at a time; continuous pain under the belt in the back, groin, scrotum, lower left leg (from thigh to feet) with cold sensation and numbness; sub-pubic skin hypersensitivity; occasional acute pains making him scream and fall; occasional acute pain in the left hip when getting up (although he could walk slowly long distances and make substantial efforts above the waist without problem); perineal and scrotal pains aggravated when coughing or sneezing; pain between scrotum and anus when defecating.
[80] During the examination, Mr. S. occasionally screamed in pain, seemingly in the throes of acute spasms that relaxed "a fraction of a second later". Dr. Canakis could not find the source of these acute pains, except the left groin. Dr. Canakis also had difficulty obtaining a coherent medical history. He noted that Mr. S. "is convinced that his case is unique and that it is the only one of its kind in medical history".
[81] Dr. Canakis was unimpressed.
[82] He concluded that Mr. S. did not exhibit any verifiable orthopaedic condition and thus opined that from a purely orthopaedic standpoint Mr. S. did not suffer from any partial incapacity whatsoever.
[83] That conclusion was wrong. At the time, in addition to bladder and urethra conditions that are not of orthopaedic concern, Mr. S. also suffered from a torn left labrum and a partially torn left femoral ligament.[25]
[84] On April 29, 2008, Mr. S. was administered the nerve blocks Dr. Tinawi had prescribed.[26] His condition improved substantially. Dorsolumbar pains almost disappeared and only testicular and left hip pains remained. This improvement did not last.[27]
[85] In May 2008, Mr. S. underwent several evaluations at CLRC: on May 13, by an ergotherapist and a physiotherapist; on May 16, by a kinesiologist; on May 29, by a specialised educator, a psychologist and a social worker.[28]
[86] On June 16, 2008, Mr. S. began CLRC's chronic pain management program. The first week, he attended the program on five consecutive days.[29]
[87] The interdisciplinary team had set the following goals for him: (1) to resume shopping, household repairs, gardening and pool maintenance; (2) to renew outdoor activities with his son; (3) to walk 60 minutes three times a week; (4) to resume training in the gym and playing basketball; (5) to lie down and get out of bed without electric assistance.
[88] These goals reflected the extent of Mr. S.'s partial incapacity almost three years after the accident.
[89] On June 27, 2008, Dr. Tinawi again examined Mr. S.. He was very much improved. His thoracolumbar junction was not painful. He was no longer experiencing "belt pain" in the lower back and, although his testicular and groin areas were still painful, the testicular pain had decreased to the point that he had stopped attending CLRC, stating that he did not need it. For the first time, Mr. S. told Dr. Tinawi of his hip problems. Dr. Tinawi asked for an MR-Arthrogram of the left hip.
[90] On June 27, 2008, Mr. S. was discharged from the pain management program. The interdisciplinary team did not comment unfavourably on his decision to terminate treatment. Its assessment of his progress conveys the impression that Mr. S. could resume many of his former activities by applying what he had been taught and by progressively improving his conditioning:
(TRANSLATION) With respect to the first goal, Mr. S. had the opportunity to learn appropriate postures and review the principles of protection of articulations when performing domestic tasks. The second goal was not evaluated. Mr. S. walked 30 consecutive minutes on four days in the week of June 16. As concerns sports, Monsieur received a stretching program that he can continue by himself and the kinesiologist will prepare a program for his gym in the community. He may resume basketball progressively if he desires. As to the last goal, Monsieur has shown at the Center a capacity to lie horizontally and to get up, as well as to turn over in bed without indicating pain and without electric assistance. Monsieur continues his work in his medical clinic. He still works 40 hours a week and says that he appreciates having more time for activities with his son. If he so desires, he could resume his schedule of 60 hours/week while applying the principles taught.
[91] CLRC's interdisciplinary assessment did not take into account Mr. S.'s still undiagnosed injuries.
[92] On August 20, 2008, an MR-Arthrography of his left hip revealed two tears in the acetabular labrum (the cartilaginous tissue increasing the contact surface between the femur and the acetabulum socket) one front, one rear, the latter tear being more significant. The presence of a "fairly large" paralabrum cyst originating from the posterior labrum tear was also noted.[30]
[93] On October 17 and November 6, 2008, neuropsychologist Micheline Fravreau, Ph. D., met Mr. S. at Hillsdale's request to determine if the accident had caused him permanent psychological injury and, in the affirmative, to evaluate its extent.
[94] It did not go well.
[95] At the outset of their first meeting, Dr. Favreau explained her role as an expert and assured Mr. S. that she was impartial. Mr. S. was unconvinced and told her so in no uncertain terms. She wanted to end the meeting. Mr. S. insisted that they continue. The ensuing climate was not conducive to a proper evaluation. As a result, Mr. S. did not disclose his ongoing urinary problems nor his pain during sex.
[96] When Dr. Favreau signed her report, she was unconcerned with Mr. S.'s ongoing urinary problems and painful sexual relations. She was also unaware that his left adductor muscle had been torn, and that his left femoral ligament was partially torn.
[97] Communication problems between Mr. S. and Dr. Favreau continued on November 6. Mr. S. told Dr. Favreau of the result of the MR-Arthrography of his left hip[31], but she discounted this information as unrelated to his symptoms, unreliable or unimportant, as she wrote the following in her report under the caption "(TRANSLATION) Summary and Clinical Opinion":
(TRANSLATION) (…) He reports having had to end the sports he practiced, decrease his working hours and deprive his son of the activities required for his progress. However, a multitude of subsequent examinations proved negative, except for possible anomalies to the left hip and minimal left L5-S1 radiculopathy.[32] (…) An orthopaedic expertise carried out in April 2008 allowed to eliminate an orthopaedic condition that could explain the symptoms and to observe that the expression of pain had a histrionic appearance.[33] (…)
(Emphasis added.)
[98] Dr. Favreau clearly accepted Dr. Canakis' erroneous conclusion and downplayed the gravity of Mr. S.'s left hip injuries.
[99] On November 6, Mr. S. refused to answer all 567 questions of a written questionnaire, leaving Dr. Favreau's office after having answered 231 questions. Dr. Favreau could not use the uncompleted test.
[100] Dr. Favreau evaluated Mr. S. on the basis that it had been medically demonstrated that he bore little if any continuing physical injury as a result of the accident. This flawed her perceptions of his statements and actions as well as her conclusions.
[101] In Dr. Favreau's view, Mr. S. "(TRANSLATION) tended to present an idealised picture of his accomplishments".[34] For instance:
- Dr. Favreau indicated that Mr. S. told her that he was driving a Mercedes-Benz at 19. She did not enquire if the car was new or used. Mr. S. testified that he only began driving a Mercedes-Benz a decade later.
- Without any basis for doing so, Dr. Favreau apparently doubted Mr. S.'s financial means and, in particular, his statement that these means were unaffected by his claim against Hillsdale.[35]
- Dr. Favreau summarized as follows Mr. S.'s description of his athletic accomplishments, work ethic, connections and sense of responsibility:
(TRANSLATION) [he] describes himself as having been a great athlete, having attained excellence in martial arts, baseball, hockey, boxing and exercising (i.e. 1,000 sit ups daily until the accident). He describes himself as having been a man who worked 60 hours a week.[36]
(…)
He frequently describes himself and, in some instances out of context, as self-taught, a millionaire who has realized and still realizes today far-ranging projects, enjoys privileged connections with rich and famous people, including the Hollywood community, a great athlete who achieved excellence in numerous sports (eg. martial arts, team sports, boxing, exercising) and discharges heavy responsibilities (i.e. his business, caring for his mother and son).[37]
Contrary to Dr. Favreau's view, nothing in these descriptions is "idealised". Except for boxing (which was not mentioned in evidence), it was proven and is uncontested that Mr. S. did possess all of these athletic abilities prior to the accident. He did work that hard.
[102] Dr. Favreau concluded that Mr. S. did not present symptoms of post-traumatic stress nor symptoms that would allow diagnosing a generalized anxiety disorder or a major depressive episode according to the DSM-IV.[38] Rather, in her view, Mr. S. suffered from a personality disorder with predominant narcissistic traits, constituting a "mild impairment" (severity grade 2) according to the AMA "Guides to the Evaluation of Permanent Impairment" entailing a 5 % permanent partial incapacity according to the SAAQ scales.[39]
[103] Dr. Favreau left the door open to revise her opinion and reduce Mr. S.'s psychological incapacity if his hip operation was successful. She did not address the opposite possibility.
[104] On October 24, 2008, Dr. M. Tanzer, an orthopaedist, requested that Mr. S. undergo a left hip examination after a xylocaine injection.
[105] On December 9, 2008, Dr. Tanzer noted that the xylocaine injection had completely relieved Mr. S.'s of his articular symptoms as well as 70 % of his generalized pains, but that it did not relieve him of groin pains.
[106] On January 22, 2009, Dr. Tanzer performed a left hip arthroscopy to repair the torn labrum. The procedure revealed "a long tear" of the labrum and a partially torn femoral ligament.[40] Mr. S. then weighted 167 lbs.[41]
[107] On January 26, 2009, Dr. Tanzer noted that Mr. S. was doing "exceptionally well" and that his hip pain was considerably improved, but that his leg pain continued.[42]
[108] Mr. S. began slow walking on a treadmill, discontinued much of his pain medication, and lost almost 20 pounds. He discarded the oxygen mask he had worn to combat sleep apnea.
[109] On April 14, 2009, Mr. S. told Dr. Tanzer that his (hip) pain had completely disappeared, but that the pain located in the middle of his groin was much greater.
[110] On May 11, 2009, Mr. S. announced to Mrs. K. that their marriage was over.
[111] A few days later, he met a former girlfriend.
[112] On May 29, 2009, Mr. S. told Dr. Tinawi that the hip operation had helped him. He reported pain in the low lumbar region, predominantly on the left side. He also described radiating pain in the front left thigh when repeating spinal movements or walking. He also reported numbness of the second to fourth toes in the left foot. On examination, perineal pain and adductor pain was important.
[113] On June 6, 2009, Mr. S. left Mrs. K. and all of his possessions behind, including his electric bed, and moved into a condominium.
[114] His girlfriend often slept over. Later that year, he proposed, and they planned to get married.
[115] Dr. Canakis examined Mr. S. a second time on June 22, 2009.[43] He also reviewed the interdisciplinary discharge paper from CLRC and excerpts from Mr. S.'s file at the Montreal General Hospital (August 20, 2008 to January 26, 2009).
[116] Mr. S.'s hip pains were practically gone. He no longer experienced sudden and acute pains that made him fall. He could walk for a long period of time and do some physical activities. He had lost almost 20 pounds.
[117] Perineal pain persisted, however, and made his life difficult to bear ("rend sa vie peu tolerable"). Lower lumbar pains (lumbo-sacroiliac region) also continued and the constant discomfort was "killing him". He was under the impression that his left leg was twisting. He could not sleep on his back and constantly awoke if he changed position while sleeping.
[118] Dr. Canakis found that Mr. S. described his condition much more coherently than during his first examination. Physical examination nonetheless yielded little. All was apparently normal, with minor exceptions: Mr. S. took particular care when removing his underwear, showing some left groin sensitivity when standing up from a crouched position as well as some groin, perineal and back pains during certain movements. In connection with back pains, Mr. S. informed Dr. Canakis that he had recently suffered from a left kidney stone. Pressure between the anus and testicles provoked extreme pain.
[119] Mr. S. reported loss of sensitivity in the front left leg and along the outside of the left foot, but Dr. Canakis could not confirm this objectively.
[120] Dr. Canakis concluded that as a result of the accident, Mr. S. had suffered from (i) a torn left labrum and related kyst as well as from a partially torn left femoral ligament, and (ii) trauma to the tendon of the left minor adductor and that both conditions were cured.
[121] Dr. Canakis considered Mr. S.'s esthetic prejudice as "minimal". He did not find any incapacity in respect to the lumbar spine and deferred to an urologist with respect to perineal pain as this lay outside of his discipline.
[122] Dr. Canakis evaluated Mr. S.'s partial permanent incapacity at 2%.
[123] On September 11, 2009, Mr. S. was despondent. He reported to Dr. Tinawi urinary symptoms, thoracic and lumbar pains, feeling electric chocks and experiencing convulsive movements that woke him up at night. On examination, there was pain at the insertion of the left adductor muscles. Dr. Tinawi referred Mr. S. to Dr. Corcos, an urologist, and requested a scan of the adductors.[44]
[124] In October 2009, Mr. S. returned to Mrs. K..
[125] He told Dr. Tinawi that he didn't want to live. Dr. Tinawi referred him to the emergency room. Mr. S. was immediately admitted to the psychiatric ward.
[126] On November 30, 2009, Dr. Paris, a psychiatrist, and Dr. M.T. Nguyen, specialising in family medicine, both saw Mr. S.. He reported that he was "feeling overwhelmed and very conflicted in the last few months" (D-5). He added that he had "had a difficult marriage and had separated during the spring of 2009", that he had subsequently fallen in love with a former girlfriend, that they had "stayed together for a period of 5-6 months", that he had "proposed", and that "they were planning to get married". He harboured feelings of guilt and did not want to abandon his family. He had returned to live with Mrs. K. and their son the month before. Although he loved his wife and son and knew that they loved him, he could not feel their love. He did not know if his son noticed his presence. He felt guilty for having broken the heart of the woman with whom he was in love. He was "sad and conflicted", but he denied "any suicidal thoughts, intent or plan".
[127] Under the caption "Diagnosis", Dr. Paris and Dr. Nguyen indicated the following:
Axis I - Nil
Axis II - Narcissistic traits
Axis III - Chronic back pain, neuropathic pain and urological dysfunction subsequent to a multi trauma accident in 2005.
Axis IV - The patient is in an unhappy marriage and he is in love with another woman. He also has an (sic) 13 year old son with autism.
Axis V - GAF 50-60
[128] Dr. Paris and Dr. Nguyen did not consider that Mr. S. was currently suffering from a "major depressive episode". They nonetheless considered that he might benefit from antidepressants and strongly recommended that he see a psychologist.
[129] By November 2009, Mr. S. had decided to reunite with his girlfriend.
[130] In January 2010, he left Mrs. K. permanently.
[131] On February 13, 2010, Mr. S. saw Dr. Serge Carrier, an urologist. A cystoscopy was scheduled for March 25, 2010 and an urodynamic study was planned for April 10, 2010. A narrowing of the bulbar urethra was discovered.[45]
[132] On February 17, 2010, Mr. S. saw Dr. Martin Lamontagne, a physiatrist.
[133] On March 7, 2010, Dr. Tinawi conducted an expertise to determine the diagnoses relating to the accident and to evaluate Mr. S.'s permanent injuries. Dr. Tinawi is a physiatrist with orthopaedic training, a member of various professional associations, has been a university lecturer since 1989, heads the orthopaedic program at CLRC and has been an examiner for the Royal College of Physicians and Surgeons of Canada. A clinician active with several institutions, he is also involved in research, has published several articles and has given conferences. The Court acknowledged Dr. Tinawi's expertise as a physiatrist and a specialist in physical medicine and rehabilitation.
[134] Dr. Tinawi concluded that Mr. S.'s uro-genital system had been injured as a result of the accident, there being evidence of a muscular tear, local injury to the scrotum and testicles as well as trauma to the bladder. Mr. S.'s symptoms were constant, continued and well objectified. Dr. Tinawi found coherence between his symptoms, the investigations and treatments administered. The accident explained Mr. S.'s injuries: (1) partial tear and/or inflammation of the left adductor muscle, (2) torn left labrum and femoral ligament, (3) the left dorsolumbar junction. Dr. Tinawi added that a urological injury was also probable as well as a psychosomatic problem, noting that these did not lie within his field of medical expertise.
[135] Using the AMA Guides, Dr. Tinawi assessed Mr. S.'s permanent partial physical incapacities at 14 %:
(i) 4 % for left hip injuries, based on the incapacity that would result from the tear of two knee menisci;
(ii) 10 % for chronic pain syndrome by the pain evaluation method (whereas according to the peripheral nervous deficit method, Dr. Tinawi would evaluate this incapacity at 6 %).
[136] In addition, Dr. Tinawi noted that Mr. S.'s spine evaluation (thoracolumbar) remained to be completed. Mr. S. did not adduce any expert evidence in this latter respect.
[137] Mr. S. temporarily closed his company in March 2010.
[138] In August 2010, a laser uretrotomia was performed. Control examinations in October 2010 and February 2011 confirmed that Mr. S.'s narrowed urethra had been repaired. He nonetheless continued to urinate very often and with difficulty.
[139] In November 2010, an urodynamic test revealed that Mr. S.'s bladder was instable and that its capacity was reduced, as well as non-inhibited contractions. A neurogenic bladder diagnostic was suggested.
[140] On April 18, 2011, Dr. Pierre E. Bertrand, an urologist, saw Mr. S.. He noted that an important psychological impact persisted and poisoned Mr. S.'s life. Dr. Bertrand concluded that the accident had entailed the following urological impacts:
- An important contusion of the scrotum, causing great pain that lasted several weeks. Mr. S. still experienced pain in his left testicle.
- A contusion or possible rupture of the bulbar urethra which caused its narrowing was diagnosed and treated approximately five years after the accident.
- Bladder instability and reduction of bladder capacity, probably related to the urethral narrowing, entailing difficulty to urinate and chronic excessive urination frequency. Mr. S. urinated 18 times or more a day, which translated into a 5 % anatomo-physiological deficit.
[141] Hillsdale admits Dr. Bertrand's opinion and conclusions.
[142] Doctor Béliveau passed away on June 19, 2011.
[143] Dr. Edward D. Levinson was asked to determine if Mr. S. continued to suffer from psychological and emotional damage since Dr. Béliveau had seen him in April 2007 and, in the affirmative, to assess that disability.
[144] Dr. Levinson met Mr. S. on August 16 and 24, 2011, six years after the accident.
[145] Dr. Levinson is 86. He served as a navigator in the Royal Air Force from 1943 to 1946. He has practiced psychiatry since 1958. He has lectured and was an assistant professor at McGill. He has been a Follow of the American Psychiatric Association since 1970. He was the director of the department of psychiatry at the Jewish General Hospital from 1970 to 1989. The Court acknowledged Dr. Levinson's expertise in psychiatry.
[146] Dr. Levinson's clarity of thought and of expression were impressive. The Court was most impressed, however, by his acknowledgment of the limitations of his own verifications, his insistence to verify Mr. S.'s claimed golfing ability, and his forthrightness.
[147] Dr. Levinson acknowledged Mr. S.'s boastfulness. His profile of Mr. S. was quite at odds, however, with the profile drawn by Dr. Favreau. Where Dr. Favreau saw in Mr. S. a person idealizing his personal background, Dr. Levinson perceived a courageous and resilient individual who had proven his character by facing up to difficult circumstances.
[148] Dr. Levinson dismissed narcissistic personality traits as the source of Mr. S.'s complaints. Rather, he accepted that Mr. S., whom he had met twice, was credible for several reasons, including: (i) the demonstrated existence of pathologies as a source of his complaints of pain; (ii) his positive response to each intervention, (iii) evidence corroborating his athletic accomplishments, (iv) his insistence that the road to his business success had not been easy or without important setbacks.
[149] Dr. Levinson accepted Mr. S.'s statements that from April 2007 to 2008 his life was "marked by pain, insomnia, despair about the future and anger" and that his pain had since decreased "step-wise" as a result of several interventions. Nonetheless, Mr. S. still experienced nightmares, awoke to urinate three to four times a night, worried constantly about the future, had vivid flashbacks, and found himself angry with the professionals who had accused him of malingering. He was also angry at the delays until his hip surgery as well as embarrassed and ashamed daily by his persistent urinary problems. The perspective of having to live with a catheter was insulting.
[150] Mr. S. emphasised that his apparently positive daytime attitude disappeared at night. He dreaded nighttimes, when he was despairing and distraught. He frequently had suicidal thoughts. He carried on, one day at a time.
[151] Dr. Levinson conceded that Mr. S. had been partially treated since Dr. Béliveau's expertise, that his concentration had improved, and that he had had three more years to adapt to his condition. In addition, Mr. S.'s score on Axis V or "Global Assessment of Functioning" ("GAF") of the Multiaxial Assessment of the DSM-IV had markedly improved, from 55-60 to 75-85. Mr. S.'s impairment in this respect had become "slight ". Dr. Levinson conceded that on the scale Dr. Béliveau had used to quantify Mr. S.'s impairment,[46] the latter's current GAF score of 75-85 translated into an incapacity of 2 %, rather than 15 % based on the GAF score of 55-60 that Dr. Béliveau had determined in 2007.
[152] In Dr. Levinson's opinion, Dr. Béliveau's findings and conclusions nonetheless remained valid given that Mr. S. continued to suffer from a post-traumatic stress disorder ("PTSD"): re-imaging of the accident was strikingly present and he carried the accident with him in mind and body, as his pain and physical limitations constantly reminded him of the accident and stirred his anger.
[153] On October 19, 2011, Dr. J. Corcos, an urologist, confirmed that Mr. S. is on the waiting list for a stimulation test in preparation for the implantation of a neuromodulator.[47] By this device, Mr. S. hopes to be able to regain control of his bladder.
[154] Mr. S. is 52.
[155] Mrs. K. is 49. She and Mr. S. are seeking a divorce by consent. Their son is with Mrs. K. nine days out of 14. They have agreed on visitation rights and on financial issues.
[156] Mrs. K. described her relationship with Mr. S. before the accident in near idyllic terms. She had an "excellent life" with him, and he was an "excellent" father and son. They had their ups and downs together, but for the most part, everything was perfect. He was an "exemplary man".
[157] Mrs. K. never played golf with Mr. S.. Neither plaintiff indicated what other activities, if any, they enjoyed together before the accident.
[158] Prior to the accident, they occasionally slept in separate rooms. Mrs. K. would sleep on the sofa if Mr. S. was snoring.
[159] Mrs. K. summed up their physical relationship in two words: "fine" and "good". She denied that her double mastectomy and the removal of her ovaries following the recurrence of her cancer had affected their sexual relations. She stated that Mr. S. was very gentle and caring and that, as much as she felt embarrassed, he never made her feel that way.
[160] On the day of the accident, the paramedics called her at home. She ran into the hospital. She heard her husband screaming. It was excruciating to watch and listen to him. She stayed all day.
[161] When Mr. S. returned home, he was "a mess". He wasn't the same man emotionally. He was afraid to return to the golf course.
[162] He depended on "other people" to do basic little things for him.
[163] He was up at night all the time to urinate. He slept on a couch for months until he bought an electric bed. He was later diagnosed with sleep apnea and slept with a machine.
[164] Sex was non-existent. Several attempts were made over a few months. His pain in the groin and anal areas was overwhelming.
[165] Over time, he became despondent. He kept searching for the right doctor, someone who could help him. He took strong medication.
[166] Mrs. K. never discussed Mr. S.'s condition with any of his doctors.
[167] The January 2009 operation to his hip relieved him "a little bit", but "it never returned to what it was before". Mr. S. was embarrassed.
[168] Their separation occurred in May 2009. Mr. S. told her not to worry, that he would live up to his responsibilities. Mrs. K. did not indicate that she ever doubted this intent.
[169] Without emotion, Mrs K. explained that the divorce proceedings resulted from his wanting more from her than what she could give him in light of the needs of her son and of her own needs. Before the accident, Mr. S. was not as "needy" and dependent on her.
[170] Mrs. K. was clearly not centered on Mr. S.'s personal needs before or after the accident. For example, she neither knew when his mother had been diagnosed with Alzheimer's nor its impact on him. According to her, Mr. S. may have resumed playing golf three to four times a week, perhaps as soon as three or four months after the accident, but she was quite unsure.
[171] Mrs. K. remains concerned that Mr. S.'s partial incapacities may prevent him from meeting their son's future needs. She did not explain the basis for this subjective concern, given their financial arrangement and her trust in his sense of responsibility.
[172] Mr. S. claims the following:
(i) Loss of physical integrity (…) and pain, suffering, and loss of
enjoyment of life (…)………………………………………………………………$500,000.00
(ii) Special damages, including transportation, braces, medication, tests,
injections, electric hospital bed, etc……………………………………………….$10,062.53
(iii) Loss of opportunity and revenue…………………………………………$100,000.00
(iv) Future medical expenses, including medication and tests……………..$20,000.00
(v) Permanent partial incapacity……………………………………………..$350,000.00
TOTAL: $980,062.53
[173] Mrs. K. claims $20,000.00 for "emotional pain, anxiety and anguish" and an additional sum of $20,000.00 for "loss of servitium and consortium".
[174] Given the absence of contestation at trial regarding Hillsdale's fault, which is indisputable under the circumstances, this case principally raises the following issues:
1- What disbursements did the accident cause Mr. S. to incur?
2- Did the accident cause Mr. S. any loss of opportunity?
3- Did Mr. S. suffer pecuniary loss from the incapacities caused by the accident and will he suffer any such loss in the future?
4- What sum would adequately compensate Mr. S. for his non-pecuniary loss?
5- Should Mr. S.'s rights be reserved regarding his urological condition?
6- What sum would adequately compensate Mrs. K. for her non-pecuniary loss, if any?
[175] Mr. S. seeks to recover costs of medication ($1,631.13), sleep apnea equipement ($1,333.00), radiology ($650.00), medial imaging ($1,525.00), physiatry clinic ($490.00) and institute ($380.00), electric bed ($3,454.92), ambulance ($147.75), laboratory test ($20.00), urology ($50.00), St-Eustache Hospital ($12.00), television in St-Eustache Hospital Center ($25.02) and pharmacy ($48.21).
[176] Mr. S. mistakenly claims in triplicate his single ambulance transportation from Hillsdale to St-Eustache Hospital Center on the date of the accident.
[177] Hillsdale is not responsible for Mr. S.'s decision to rent a television during his hospitalization.
[178] Mr. S. did not experience sleep apnea prior to the accident. As a result of his injuries and medication, he put on weight. After the successful operation in January 2009, he lost weight and discontinued using an oxygen mask.
[179] On the basis of this presumptive evidence, the accident either caused or significantly contributed to sleep apnea. He is therefore entitled to compensation for the disbursements relating to this condition.
[180] For all of his proven past disbursements arising from the accident, Mr. S. is entitled to the sum of $9,742,01.
[181] As a result of the accident, Mr. S. consumes two tablets of pain medication (Naproxen) daily and increases this dosage to play golf. No evidence was led regarding the future cost of this medication. No award will be made in this connection.
[182] Mr. S. claims that he suffered losses of opportunity in 2007 and 2010.
[183] In 2007, a member of a leading accounting firm approached Mr. S. to spearhead the administration of a project in Los Angeles for the wife of a prominent movie director. Mr. S. turned him down: he did not like the project and did not want to leave the Montreal-based medical support on which he depended.
[184] Two months later, the same person offered Mr. S. work in Los Angeles on a house-lifting project. Mr. S.'s initial involvement would have been to create a business plan for potential investors. Profitability was at least two years away. Compensation was not even discussed.
[185] Working full-time in Los Angeles would have been difficult to reconcile with the attention and care Mr. S. gave his autistic son and ailing mother as well as the business requirements of his company.
[186] Mr. S. never seriously considered these projects, neither stirring any real enthusiasm in him.
[187] In early 2010, Mr. S. was in the throes of the permanent breakdown of his marriage and of his personal conflict over committing to another relationship. He was also experiencing considerable guilt over separating with his son.
[188] From February-March to October 2010, Mr. S. was so depressed that he closed his company. No evidence was presented of its profitability then, if any.
[189] It is difficult to link this business decision to an accident having occurred almost five years before.
[190] Overall, Mr. S. did not prove that the accident caused him any loss of opportunity.
[191] Mr. S. claims $350,000.00 for permanent partial incapacity.
[192] Permanent partial incapacity does not always cause an immediate loss of earnings. In such case, the Court will scrutinize whether the victim's incapacity will prejudice his or her future career or reduce its length. Where a negative impact to earning capacity is improbable, the victim's actual loss of bodily integrity will be compensated as a non-pecuniary loss.[48]
[193] Mr. S.'s continued limitations, pain and psychological impairment will substantially diminish his enjoyment of life and reduce the quantity and quality of his sleep.
[194] His productivity may be negatively impacted, but no evidence was led regarding the predictable course of his career had he not been injured in the accident.[49]
[195] The evidence is insufficient to support an award compensating future pecuniary loss resulting from permanent partial incapacity.
[196] Mr. S.'s loss of physical integrity will therefore form part of his compensation for non-pecuniary loss.
[197] The law and precedents provide some guidance regarding the assessment of non-pecuniary loss suffered by the victim of "bodily injury" (which includes physical and psychological suffering resulting from the loss of physical integrity):
- Non-pecuniary losses are assessed in one lump sum.[50]
- The indemnity is assessed at the date of the institution of the action; interest and legal indemnity accrue from that date.[51]
- The defendant's liability is not reduced by reason of the plaintiff's pre-existing vulnerability.[52]
- The Supreme Court of Canada has set an upper limit to all non-pecuniary losses of $100,000.00 in 1978 dollars, save in exceptional circumstances;[53] this limit must be adjusted for inflation[54] as of the date of institution of the action[55] (in the present case, January 31, 2008); on January 1, 2008, the limit was $311,630.00.
- The upper limit cannot be used as a yardstick to determine the award.[56]
- To achieve fairness and reasonableness, compensation for non-pecuniary loss must take into account the plaintiff's personal circumstances, including the objective severity of the injury, the plaintiff's age, the impact of the injury on his or her former lifestyle and the plaintiff's suffering.
- Although no two cases are identical, the Court should bear in mind that uniform treatment of victims requires avoiding excessive disparity of awards in similar cases.[57]
- Each case must be decided on its own facts.[58]
[198]
Under Quebec civil law, the victim of a civil
fault is entitled to full compensation for his or her damages (Art.
[199] Considering that monetary compensation cannot restore permanent bodily injury, full compensation ("restitutio in integrum") in such case is necessarily relative.
[200] Fair and reasonable compensation is the only practical measure of justice possible.[59]
[201] No mathematical formula exists to translate the human experience into a sum of money.
[202] Greater partial permanent incapacity tends to entail more substantial non-pecuniary loss, although the latter is not a simple derivative of the former.
[203] To determine the appropriate compensation due, one must exercise judicial discretion, in other words, apply judgment and insight in such a way that most reasonable and well informed persons would regard the award as being neither exaggeratedly parsimonious nor generous.[60]
[204] The accident caused a major tear of Mr. S.'s left labrum and a partial tear of his left femoral ligament that were only repaired in late January 2009, as well as a damaged urethra that required surgery in 2010. Fortunately, the acute pains and worst limitations relating to these traumas are gone.
[205] Mr. S.'s continuing partial permanent incapacity nonetheless totals 18 %: 3 % for hip injuries, 5 % for urinary injuries, 3 % for chronic pain syndrome and 7 % for psychological damage.
[206] Dr. Tinawi was visibly moved by his patient's plight and determined to help him by acting as an expert despite their patient-doctor relationship. Dr. Tinawi had only done this once before, pro bono, for another patient.
[207] Dr. Tinawi's objectivity as an expert in the present case was compromised by his role as Mr. S.'s treating physician. For example, the AMA Guides explicitly recommend adopting the higher rating of two "evaluation methods",[61] but Dr. Tinawi's transparent resolve of setting the maximum allowable incapacity within a range trivialized the purpose of having a range.
[208] Dr. Tinawi initially evaluated Mr. S.'s permanent partial incapacity relating to his left hip injuries at 4 % based on the incapacity that would result from the tear of two knee menisci, and the premise that a major labrum tear compromises femoral stability.
[209] At trial, Dr. Tianwi added a permanent partial incapacity of 3 % for the partially torn femoral ligament that he had overlooked, for a total of 7 %.
[210] Dr. Canakis disagreed with comparing a hip to a knee. He emphasized the additional complexity of the knee's articulations and the particular function of the femoral ligament, which is to carry blood to the femur rather than to stabilize it. He consistently downplayed the gravity of Mr. S.'s injuries and considered that all of Mr. S.'s hip injuries entailed incapacities of only 2 % (including 1 % for the partial tear of the femoral ligament).
[211] Despite the successful operation to his left hip, as a result of the accident, Mr. S. can no longer kick a soccer ball, play basketball or do anything requiring an accelerated pace of walking.
[212] The Court arbitrarily assesses Mr. S.'s partial permanent incapacity resulting from his left hip injuries at 3 %.
[213] To this day, more than six years after the accident, Mr. S. still experiences intense pain in the sacral region. Dr. Tinawi postulated damage to the S2-S3-S4 nerves. Whatever its cause, Mr. S.'s pain is real to him.
[214] Dr. Tinawi evaluated the permanent impairment relating to this chronic pain syndrome at 6 % by the peripheral nervous deficit method, but in light of Mr. S.'s pain, which he deemed to be "moderate", Dr. Tinawi evaluated this impairment at 10 %.
[215] Dr. Canakis did not evaluate any incapacity in this regard. His attempt to demonstrate that Mr. S.'s sacral nerves could not be involved was unconvincing, all the more in light of his acknowledgment that this matter was outside of his field of expertise.
[216] Considering Mr. S.'s extrovert expression of his pain and Dr. Tinawi's compromised objectivity, the Court finds that Mr. S.'s chronic pain syndrome entails a permanent partial incapacity of 3 %.
[217] Mr. S. must urinate almost every hour around the clock and cannot do so normally, as he must sit down to compensate an insufficient flow. His urinary condition is incompatible with normal sleep and complicates his social life.
[218] Dr. Bertrand's assessment of this permanent partial incapacity is admitted at 5 %.
[219] Dr. Levinson and Dr. Favreau fundamentally disagreed with respect to Mr. S.'s credibility.
[220] Dr. Levinson based his opinion on the belief that Mr. S. was truthful and open.
[221] On the other hand, Dr. Favreau's opinion was largely influenced by her incorrect perception that Mr. S. was unjustifiably boastful about his accomplishments. The poor professional rapport established between them[62] also compromised his cooperation, which negatively influenced her opinion of him.
[222] Dr. Levinson concluded that despite marked improvements since 2007, Mr. S. continued to experience PTSD, as he still exhibited most if not all of its symptoms, and that Dr. Béliveau's conclusions regarding Mr. S.'s impairment in this regard (15 %) remained valid.
[223] Dr. Levinson emphasized that expert evaluations are mere "snapshots" of a person's condition, whereas a person's history provides continuity, and that Mr. S.'s history showed that he underwent major mood and thought variations between medical examinations.
[224] Dr. Favreau disputed Dr. Levinson's diagnosis concerning PTSD on the basis that all diagnostic criteria must be present for this diagnosis to be made, but recognised Mr. S.'s considerable distress and permanent psychological impairment, which she assessed at 5 % on the basis of the SAAQ scales.
[225] Whether a medical diagnosis of PTSD is actually warranted or not is of secondary importance given that Mr. S. carries most of its distressing symptoms.
[226] Mr. S.'s current psychological impairment is greater than 2 %, as Dr. Favreau acknowledged, but significantly less than 15 %, given his marked improvement since 2007.
[227] Mr. S.'s dramatized descriptions of his subjective reality complicate its translation into objective terms.
[228] The Court arbitrates Mr. S.'s permanent psychological impairment at 7%.
[229] Following the accident at Hillsdale and five days of hospitalization, and until Dr. Tanzer's operation in 2009, Mr. S. experienced either continually or intermittently:
- pain and abnormally frequent night time urination that severely impaired his sleep;
- painful physical limitations preventing any physical training as well as any strenuous activity, occasionally causing him to fall ("It was like a jolt of lightning through my body"), and also preventing or restricting the practice of golf, his passion;
- embarrassment caused by abnormally frequent urination during the day and the necessity to sit down to urinate;
- reduced urinary flow caused by a compressed urethra;
- erectile dysfunction, ejaculatory pain, and painful sexual relations;
- side-effects from medication ("I was not in control of my brain"), including loss of alertness, depression, and suicidal ideas that he almost acted upon;
- the incredulity as well as the incapacity of physicians to diagnose and effectively address the physical causes of his injuries.
[230] As a result of the accident, Mr. S.'s limited range of movement, pains and perturbed sleeping patterns forced him to leave his wife's bedroom and to exile himself to the basement of their residence where he unsuccessfully tried to sleep on a sofa.
[231] He put on weight and began suffering from sleep apnea.
[232] He stopped having sex until his hip operation in late January 2009.
[233] He continues to feel that his left leg is twisting.
[234] Mr. S. was stripped of the physical abilities that had allowed him to assist those he most loved, cope with their difficult situations and derive from his life some measure of personal pleasure. Physical activity had always meant a great deal to him. At the time of the accident, golfing provided a much-needed respite from his obligations and difficult family situation. For a time, this respite was also taken away from him.
[235] To improve his condition, he submitted to facet blocks, to MRI's, and to surgery.
[236] The 2009 operation significantly reduced his incapacities. Afterwards, he could exercise physically within limits and have sex without pain. His condition improved so much that he rapidly shed a substantial amount of weight, ended his unhappy marriage, and planned life with a new companion.
[237] His embarrassing and annoying urinary issues continued to plague him, however, as well as perineal pain. His unresolved personal and familial concerns also took their toll. He continued to think about ending his own life.
[238] He had to undergo another procedure to improve urinary flow, following which he used a catheter and a bag for 33 days.
[239] To correct his bladder problems, Mr. S. is prepared to submit to the spinal implantation of a neuromodulator and, in the meanwhile, he lives with the fear of having to resort to a catheter in the future if that procedure should fail.
[240] Mr. S. suffered and continues to suffer from chronic and occasionally severe pain and mental distress.
[241] Hillsdale questions Mr. S.'s credibility and argues that his statements regarding his pain and limitations should not be taken at full face value.
[242] Mr. S.'s descriptions of reality as well as of his subjective experiences are indeed perplexing.
[243] His chronology is not always accurate, for example, as to his use and discontinuance of Lyrica.
[244] Mr. S.'s expression of his physical and moral pains seemed exaggerated to more than one physician and expert. His theatrical descriptions of the accident, some apparently improbable statements (for example, that he never slept more than five to ten minutes at a time during the first two years following the accident) and his inability to consistently articulate complaints in a cohesive manner (perhaps in some instances, paradoxically, because of his overly optimistic reaction to treatment) are puzzling.
[245] Mr. S.'s present appearance is that of a robustly healthy individual.
[246] During the trial, he wept on occasion, audibly reacting to particularly emotional matters. But he did not exhibit a single involuntary indicator of extreme physical stress (such as paleness, perspiration, wincing, trembling, etc.) that one would expect to be consistent with his level of pain, which he described as "agonizing".
[247] Physical and moral pains are inherently subjective experiences. The theatrical expression of pain and the absence of overt manifestation of pain do not necessarily disprove its existence. Rather, they caution against overestimation within a spectrum of more or less objectively comparable occurrences.
[248] On balance, Mr. S. is to be believed insofar as the core of his subjective reality is concerned, the medical evidence accumulated to this day having corroborated many of his past complaints. In setting the appropriate indemnity, however, his propensity to dramatize must be duly taken into account.
[249]
Hillsdale relies on Art.
1479. A person who is liable to reparation for an injury is not liable in respect of any aggravation of the injury that the victim could have avoided.
[250] Hillsdale adds that Mr. S. would have mitigated his damages had he been treated earlier for his hip injuries and had he seen a psychologist, as recommended by Dr. Béliveau, Dr. Paris and Dr. Nguyen, rather than abandon the program available at CLRC.
[251] Hillsdale did not demonstrate that this was not merely possible, but probable. It therefore failed to discharge its burden of proof in this respect:[63]
(a) The numerous physicians Mr. S. consulted could perhaps explain why he was not treated earlier for his hip injuries, but no evidence was presented on this issue at trial. There is no evidence whatsoever that Mr. S. delayed treatment of his hip injuries voluntarily. On the contrary, Mr. S. was clearly most anxious to be treated.
(b) None of the three doctors who recommended that Mr. S. consult a psychologist testified and no expert evidence was offered in support of the notion that Mr. S.'s distress would have probably been reduced had he consulted a psychologist.
[252] Mr. S. did not fail to mitigate his damages. He did not see how psychological consultations would be of benefit to him. From his perspective, the cause of his pain and limitations was organic. He accordingly spared no effort in seeking physical corrections to what he perceived as a predominantly physical condition.
[253] There is no reported precedent in the Province of Québec of a situation truly similar to that of Mr. S..
[254] A few precedents do present some similarities.
[255] The following list is not exhaustive, but merely indicative of some such cases:
(a)
In Veilleux v. Dumont ,
(b)
In Tremblay v. Quintard,
(c)
In Moumdjian v.
Aubin,
(d)
In M.S. v. Couture,
(e) In Paquet v. Longpré,
(f)
In Lussier v. Emond,
(g)
In Quintal v. Godin,
(h)
In Villeneuve v. L.F.,
(i)
In Gauthier v. Beaumont,
[256] The accident at Hillsdale caused serious injuries to Mr. S.'s spine, hip, bladder, testicles, groin and scrotum.
[257] Mr. S. experienced agonizing pain. His hospital record at St-Eustache Hospital and his incapacity to remember most of what happened there during his five-day hospitalization reflect the intensity and persistence of his pain.
[258] Mr. S.'s non-pecuniary loss was greater from 2005 to 2009.
[259] It remains significant.
[260] He was permanently deprived of most of his considerable athletic abilities. In addition, normal physical capacities and enjoyment of life were chronically reduced to the point that he actually considered committing suicide.
[261] Contrary to many victims of serious permanent partial incapacity, although Mr. S.'s physical integrity was substantially prejudiced, his injuries fortunately did not reduce his earning capacity. Moreover, his pain and limitations are hardly apparent, although during the trial he did excuse himself occasionally to urinate and sat down during his testimony, rather than continue standing for an extended period of time.
[262] Considering all of the above, as well as Mr. S.'s propensity to dramatize, the sum of $110,000.00 as of the date of introduction of the action constitutes fair and reasonable compensation for the non-pecuniary loss arising from the accident.
[263] Mr. S. did not quantify his claim until serving the motion introducing the action.
[264] Interest and additional indemnity will therefore accrue from that date.
[265] Mr. S. seeks for a period of three years from the judgment a reserve of his rights to claim additional damages and interest from Hillsdale.
[266] During the trial, his counsel clarified that he only seeks this with respect to the implant of a neuromodulator and its consequences.
[267]
Art.
[268] This reserve requires evidence of the possibility of an aggravation within three years of damages attributable to the defendant's fault.
[269] The parties have jointly accepted the opinion of Dr. Bertrand, an urologist, as to Mr. S.'s urological condition.
[270] There is no evidence that Mr. S.'s urological condition may spontaneously deteriorate in the foreseeable future, but Mr. S. plans to submit to the implant of a bladder neuromodulator in the hope of reducing the damage suffered from the accident.
[271] Mr. S. is on a waiting list for a test before this surgery.[64] If he is operated, one cannot assume that the procedure will entail no risk whatsoever to him, irrespective of any potential medical fault.
[272] A reserve is therefore justified relating to the implant of a neuromodulator and its consequences.
[273] Mrs. K. displayed little if any empathy for Mr. S. or emotion as she described the events after she was called to the hospital following the accident.
[274] Her concern was focussed on her husband's ability to continue to provide for the family. That concern and her momentary discomfort when he was loudly voicing his pain did not cause her any discernable injury warranting compensation. Indeed, the accident neither reduced her husband's earnings nor his earning capacity and he never retreated from his financial obligations to her and their son.
[275] Mrs. K. did not express any loss relating to Mr. S. leaving their bedroom to sleep in the basement.
[276] The accident essentially temporarily deprived her of his centering his attention on their son's needs and, to a much lesser extent, on her needs. No evidence was adduced of any actual damage in this respect.
[277] Mrs. K.'s claims will therefore be dismissed without costs, as they did not cause the defendant to incur any additional costs.
[278] Mr. S. is entitled to his costs, including full compensation for the fees he paid to Dr. Tinawi ($11,530,00), Dr. Levinson ($4,850.00), Dr. Béliveau ($1,709.25) and Dr. Bertrand ($1,000.00).
[279] These costs were useful to the determination of the award and their amount is reasonable.
FOR THESE REASONS, THE COURT:
RESERVES J.S.'s rights to claim additional damages from Club de Golf Hillsdale inc. relating to the implant of a neuromodulator and its consequences within three years of this judgement;
CONDEMNS Club de Golf Hillsdale inc. to pay J.S. the sum of $119,742.01 with interest and legal indemnity from the date of service of the action, and costs including experts' costs in the amount of $19,089.25.
DISMISSES S. K.'s action, without costs.
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__________________________________ LOUIS-PAUL CULLEN, J.S.C. |
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Me G. George Sand |
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Counsel for plaintiffs |
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Me Jean-Pierre Baldassare |
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BÉLANGER SAUVÉ, S.E.N.C.R.L. |
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Counsel for defendant |
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Dates of hearing: |
October 24 to 28, 31 and November 1, 2011 |
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[1] In late 2008, Mrs. Karpman worked as client service representative for a credit card company (D-8, p. 2).
[2] P-7, p. 8.
[3] P-6, p. 2 : "a été projeté vers l'avant et a roulé".
[4] Ibid.: "Dit avoir été jeté de 10 pieds dans les airs (ce qui est impossible mécaniquement)".
[5] Ibid., p. 3-4.
[6] It should read "adductors": P-7, p. 20-21.
[7] Ibid., p. 19-21.
[8] P-12A, p. 1.
[9] P-12B.
[10] P-12D.
[11] P-12E.
[12] P-12A.
[13] P-10.
[14] Axis V rates the Global Assessment of Functioning or "GAF".
[15] DSM-IV : "Diagnostic and Statistical Manual of Mental Disorders".
[16] D-6, p. 32.
[17] c. A-25, r. 10.
[18] R.S.Q., c. A-25.
[19] P-12E.
[20] P-12G.
[21] P-5.
[22] D-5, p. 2.
[23] D-1.
[24] Ibid.
[25] The MRI carried out in June 2006 had also revealed evidence of a partially torn left adductor minor muscle (which inserts in the region of the groin).
[26] D-1.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] P-12F.
[31] D-8, p. 13.
[32] Ibid., p. 15.
[33] Ibid., p. 15-16.
[34] Ibid., p. 3: "(…) sa propension à présenter un tableau idéalisé de ses antécédents (…)".
[35] Ibid., p. 11.
[36] Ibid., p. 4.
[37] Ibid., p.12.
[38] Ibid., p. 16.
[39] D-7.
[40] P-7, p. 14.
[41] Ibid., p. 9.
[42] Ibid., p. 1.
[43] D-4.
[44] P-4A.
[45] P-11, p. 2.
[46] D-7: Règlement sur l'indemnité forfaitaire pour préjudice non pécuniaire, p. 16.
[47] P-2.
[48] Maison Simons inc. v. Lizotte,
[49] Supra note 48 at para. 37.
[50] Brière v. Cyr,
[51] France Animation, s.a. v. Robinson,
[52] Liberté TM inc. v. Fortin, 2009 QCCA 477at paras. 27-28.
[53] Andrews v. Grand & Toy Alberta Ltd,
[54] Lyndal v. Lyndal,
[55] Godin, supra note 51 at para. 86.
[56] Cyr, supra note 50 at paras. 14-15.
[57] Stations de la vallée de Saint-Sauveur inc. v. M.A.,
[58] Cyr, supra note 50 at para. 21.
[59] Godin, supra note 51 at para. 25.
[60] Supra note 57 at paras. 79-83.
[61] P-4B, p. 527.
[62] Evidenced by Mr. S.'s failure to mention to her his significant and ongoing urinary problems, which explains perhaps why no particular accommodation was made in this respect when he was asked to complete a lengthy test at her office.
[63] Art.
[64] P-2.