IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100107

Docket:
M109358

Registry: New Westminster

Between:

Ravinder Basi

Plaintiff

And

Baljinder Buttar

Surdell Kennedy Taxi Ltd.

Manjit Sarai and

Insurance Corporation of British
Columbia

Defendants

Before: The Honourable Mr. Justice N. Brown

Reasons for Judgment

I.                
the plaintiff’s background

[1]            
The plaintiff is a 36-year-old Surrey, B.C. resident.
She claims damages for soft tissue injuries that she says she suffered because
of a January 11, 2007 motor vehicle accident at the Surrey intersection of 96th
Avenue and 132nd Street.

[2]            
The plaintiff lives with her father, mother, and
brother. At the time of the accident, she worked as a personal banking
representative 37.5 hours per week. She also held a second job with a community
resource centre (the “CRS”), working with troubled youth 23 hours a week, three
days a week, totalling around 60 hours per week. She earned approximately
$34,500 at the bank and $23,800 per annum at the CRS. The plaintiff says her
pre-accident health and fitness was good before the accident, although she
suffered headaches a couple times a week related to a problem behind her right
eye. She said also that she had previously experienced some back pain with
sciatica treated successfully quite a few years before the accident, but did not
experience pain in the neck or mid back, and did not require any medications.

II.              
The Accident

[3]            
The plaintiff says she had the right of way when
the defendant Mr. Sarai turned left in front of her just as she was just about
to enter the intersection. In reaction, she braked and turned turn to the left
to avoid a collision with Mr. Sarai. She says she just missed Mr. Sarai’s van,
but still lost control of the car and slid into Mr. Buttar’s car. Witness Mr.
Lavergne, who had stopped his car at red light for north bound traffic on 132nd
Street, supports the plaintiff’s version of events.

[4]            
However, the defendants say that the evidence
shows that Mr. Sarai made a safe turn: he had sufficient time and space to
clear the intersection safely; and once he had commenced the turn, he, not the
plaintiff, owned the right of way. Both Mr. Sarai and the other defendant, taxi
driver Mr. Buttar, argue that the cause of the accident was the plaintiff’s allegedly
excessive speed and over-reaction to Mr. Sarai’s left turn as she approached
the intersection. As for Mr. Buttar’s location, he was stopped in the eastbound
left turn bay, where he remained when the plaintiff lost control of her vehicle.

[5]            
Alternatively, the defendants submit that even
if I find the plaintiff owned he right of way, she should still be faulted for
driving too fast for the slippery road conditions.

[6]            
The parties during the trial agreed that the
action against Mr. Buttar ought to be dismissed since he was blameless. The
only outstanding issue in relation to Mr. Buttar is whether the plaintiff ought
to pay his costs, or whether I should make a Bullock order that requires Mr. Saria
to pay the costs that the plaintiff would otherwise have to pay to Mr. Buttar.

A.             
Plaintiff’s Evidence

[7]            
The accident happened at about 9:45 a.m. The
plaintiff was driving in her Acura westbound on 96th Avenue towards the
intersection of 132nd Street and heading to work, about 10 minutes away. Both
defendant vehicles, Mr. Sarai’s white van and Mr. Buttar’s taxi, faced in a
westbound direction. Both intended to turn left, with Mr. Sarai ahead of Mr.
Buttar, who was still stopped in the left turn bay.

[8]            
 96th Avenue is a major Surrey thoroughfare. At its
intersection with 132nd Street, 96th Avenue has two westbound lanes and two
eastbound lanes, each with a left turn lane.

[9]            
The plaintiff says the weather was cloudy, with
the sun peeping through. It snowed the day before and there were some patches
of snow on the ground. She had been driving for 20 years and had accumulated
some experience driving in the snow at home and from drives to and from
Whistler. She had also driven in Toronto in the snow. She said that she was
conscious of the need to drive carefully and to focus her attention, especially
given the driving conditions.

[10]        
As she was approaching the intersection, the
plaintiff assumed that she could travel safely through the intersection because
she saw another eastbound vehicle in the curb lane travelling about three or
four lengths ahead of her pass through the intersection. Further, she insisted
that the light was green facing her at all times. About eight to 10 car lengths
from the intersection, the plaintiff saw the white van belonging to the
defendant Mr. Sarai. She denied she was speeding, but did not know her exact
speed. The speed limit in that area is 50 km/h. She said that her speed was
constant. She intended to go straight through the intersection. At about two
car lengths from the intersection, the white van suddenly turned in front of
her, and at about a distance of half a car length from it, she began to tap her
brakes. I find it difficult to understand how in that short a distance she
could have had sufficient time to get her foot on the brake and find time to
tap the brakes, let alone see any braking effect. In any event, at that point, the
plaintiff says Mr. Sarai’s white van was positioned in the middle of the
intersection, in about the middle of her lane. The plaintiff says that she
nearly missed the white van but could not control her car; she tried to turn to
the left and slid into Mr. Buttar’s taxi, still stopped in the left turn bay
after the white van had cleared the intersection.

[11]        
 The collision between the plaintiff’s vehicle
and Mr. Buttar’s taxi was a partial head on collision with $6,000 damage
sustained to the plaintiff’s Acura. Mr. Sarai’s white van was not directly
involved in the collision; it cleared the intersection without any contact with
the plaintiff’s Acura.

[12]        
At impact, the plaintiff says she was thrust
forward, her hands crushed against the steering wheel and then she was thrown
back into her seat. She testified that she had bruises from her car strap. She
said that her head snapped forward and back like a “bungee cord”, and the back
of her head hit the headrest hard. After the collision, she said she felt in
shock and sat in the car for a few moments. People came to the car to see if
she was okay.

[13]        
At the scene, she spoke to Mr. Lavergne, who
said he had witnessed the accident. He testified at trial. The plaintiff also
spoke to Mr. Sarai, the driver of the white van, telling him he had caused the
accident, but he denied the accusation.

B.             
 Evidence of Mr. Lavergne, Mr. Buttar and Mr. Sarai

1.              
Mr. Lavergne

[14]        
The plaintiff called Mr. Lavergne, a mechanic.
He faced north on 132nd Street and enjoyed a good view of the intersection and
the accident. He corroborated the plaintiff’s evidence. He saw the white van
trying to turn left and the plaintiff’s red Acura approaching from the west on
a solid green light; he was sure they were going to collide when the white van
moved “quite slowly” into the intersection at a time when the plaintiff’s car
was no more than three to three and a half car lengths from it. He said the
plaintiff appeared to apply her brakes to the maximum and he could see the Acura’s
wheels spinning. He felt there was nothing the plaintiff could do to avoid the
collision. He wasn’t sure what colour the light was after the plaintiff
collided with Mr. Buttar.

[15]        
After Mr. Sarai’s white van proceeded unscathed
through the intersection, and proceeded south, Mr. Lavergne in pursuit, until Mr.
Sarai turned off onto a side street of 132nd Avenue. When Mr. Lavergne spoke to
him, Mr. Sarai denied any knowledge of the accident, but he agreed to return to
the scene and the parties exchanged information there.

[16]        
When cross-examined about the plaintiff’s speed,
Mr. Lavergne agreed the roads were icy with snow. He agreed that most cars
travelled 60 to 70 km/h along 96th Avenue, but said the cars were not going
that speed that day; then he resiled from his testimony about speeds on 96th
Avenue, demurring that he doesn’t pay attention to the speeds on 96th Avenue. He
minimized the plaintiff’s westbound speed, saying he believed she was
travelling quite slowly. He said the light was green for the plaintiff.

[17]        
As for the distance separating the plaintiff and
Mr. Sarai when he started to turn, Mr. Lavergne acknowledged that he could not
remember if the plaintiff was as much as 10 car lengths from the intersection
when the van began to turn. He also agreed that if the van had proceeded more
quickly, it would have cleared the intersection in time for the plaintiff to
travel straight through.

[18]        
Counsel for the defendant submitted that Mr.
Lavergne was strongly biased in favour of the plaintiff. I agree with him that
Mr. Lavergne at times left the impression of a partisan—for example, he agreed
on cross-examination that he wanted the plaintiff to win the case—and he
equivocated to some extent; however, I still found him to be a credible witness
with no ulterior motives that would lead him to give false evidence. Overall,
he left a good impression as a witness, and he was in a position to see what he
said he saw. His actions in pursuing Mr. Sarai after Mr. Sarai had cleared the
intersection confirms the integrity of his first impressions that the accident
was Mr. Sarai’s fault and that he should not have left the scene. However, I
agree that Mr. Lavergne’s assessments of the plaintiff’s speed and braking
attempts were not wholly reliable.

2.              
Mr. Buttar

[19]        
Mr. Buttar’s evidence confirmed that he was
parked two to three feet behind the van, a position that I find impeded his
view to the west and the traffic lights to a significant extent as the
plaintiff approached the intersection. Because I find that his view of the
plaintiff’s oncoming vehicle was impeded and because he advised ICBC soon after
the accident that he wasn’t paying much attention because he didn’t expect to
get through on that set of lights, the reliability of his evidence about the
colour of the lights and the separating times and distances is questionable. He
said that the traffic light had turned to yellow as the plaintiff approached at
an estimated 60 to 65 km/h. This estimate represented a change from his ICBC
statement estimate of 100 km/h. However, he was consistent in saying that the
plaintiff was “coming fast, got nervous when the light changed, and applied her
brakes and slipped” and that she was “no less than 60 feet from the
intersection when the white van commenced its turn”.

[20]        
Mr. Buttar denied he was looking down when the
plaintiff was coming towards him, as the plaintiff claimed in her testimony, saying
she had noticed this as she slid towards Mr. Buttar. Plaintiff’s counsel put Mr.
Buttar’s ICBC statement to him and his statement that he wasn’t paying
attention to the lights. However, at trial Mr. Buttar insisted he could see the
plaintiff’s car approaching and that the van did not block his view because it
had already commenced its turn. He explained his inflated estimate of the
plaintiff’s speed in his ICBC statement by explaining that this is “what it
felt like” and he stood by his estimate of the plaintiff’s speed of 60 to 65 km/h.
I conclude that Mr. Buttar gathered most of his sensory impressions from the
impact at itself, which was a fairly significant one.

[21]        
I accept his description of the poor condition
of the road surface, with impacted snow and some iciness caused by freezing
overnight temperatures.

[22]        
On the whole, however, I find that Mr. Buttar
was not paying much attention to the lights or oncoming traffic and was not in
as good a position as Mr. Lavergne to judge the relevant distances and timeline
of the accident.

3.              
Mr. Sarai

[23]        
Mr. Sarai testified that the plaintiff’s car was
about nine car lengths away from the intersection when he commenced his turn.
In the process of making his left turn, the light turned yellow. He said that
he had his left turn signal on. He agreed on cross-examination that the
plaintiff was traveling in a controlled and safe manner and said that he saw no
indication of excessive speed, although he could not say what her speed was. He
denied that, after he had cleared the intersection, he was aware of the
collision.

III.            
RELEVANT law

[24]        
Accidents such as this are a common occurrence.
Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the Act]
imposes duties both on the driver proceeding through the intersection (the
“through driver”) and on the driver intending to turn left. The driver turning
left must yield to the through driver where the through driver is in the
intersection or constitutes an immediate hazard to the driver turning left. If
the through driver does not constitute an immediate hazard, that is, if it is
safe to turn left, then the through driver must yield the right of way to the driver
turning left provided that the driver turning left has signalled his intention
to turn left per s. 172 of the Act.

[25]        
The main question in this case is whether the
plaintiff’s vehicle constituted an immediate hazard to Mr. Sarai when he
started his turn, or whether the plaintiff’s car was far enough away from the
intersection so that Mr. Sarai could safely turn left. If the former, the
defendant should have yielded; if the latter, the plaintiff should have
yielded. However, even if one of the parties has the right of way, that does
not discharge them from a duty to exercise reasonable care in the
circumstances.

[26]        
Mr. Sarai managed to clear the intersection in sufficient
time to avoid a collision; however I accept the evidence of the plaintiff and
Mr. Lavergne that the plaintiff’s car and Mr. Sarai’s van nearly collided. And
while, as stated, I have some reservations about Mr. Laverne’s impartiality, I
have no reason to conclude that he fabricated his evidence about how close the
plaintiff was to the intersection when Mr. Sarai made his turn. I find that the
plaintiff was too close to the intersection for Mr. Sarai to safely complete
his turn and that he should have yielded to the plaintiff in accordance with s.
174 of the Act.

[27]        
While counsel for the defendant urged me to find
that the plaintiff was driving too fast for the slippery road conditions, the
fact remains that Mr. Sarai himself confirmed that the plaintiff was driving
her vehicle in a controlled and safe fashion as she approached the
intersection. Of course, he also testified, in effect, that she did not
constitute an immediate hazard to him as she approached, so this evidence about
the plaintiff’s safe driving is also somewhat consistent with his position that
he could turn safely. 

[28]        
The strongest argument in favour of the
defendant comes from the fact that the plaintiff could not control her car and
Mr. Lavergne’s evidence that Mr. Sarai made his turn slowly—had he moved more
quickly, the plaintiff could have travelled straight through the intersection.
This could suggest that the plaintiff may have been driving too fast or
over-reacted.

[29]        
However, I am more persuaded by the evidence
that Mr. Sarai started his turn when the plaintiff was too close to the
intersection. She attempted to brake and turn to the left to avoid a collision
with Mr. Sarai’s van. She lost control because of the slippery road conditions.
I cannot conclude on the balance of probabilities that she drove too fast for
the conditions. The only evidence of that comes from Mr. Buttar, who I find had
limited opportunity to observe. I prefer the evidence of the plaintiff, Mr.
Lavergne and Mr. Sarai in this regard. Therefore, I find the defendant Mr.
Sarai 100% responsible for the accident for failing to yield to the plaintiff’s
approaching vehicle, which constituted an immediate hazard as he commenced his
left turn.

IV.           
injuries

[30]        
After the accident, the plaintiff attended work
but worked for only a half day because of excessive pain. She felt herself
gradually stiffening. She attended a walk-in clinic a few hours later, and the
next day saw her family physician, Dr. Claire.

[31]        
The plaintiff testified that for the first six
months she suffered constant pain in the neck and between the shoulder blades. The
pain in her neck radiated into the back of her head, causing headaches and
vomiting, which in turn aggravated the neck pain. The pain between her shoulder
blades radiated to her mid and low back. She rated that as eight out of 10 in
terms of pain. She rated her neck pain and headaches as 10 out of 10, which I
took to mean excruciating pain.

[32]        
Dr. Claire prescribed medication to reduce her
pain and inflammation. Because the plaintiff found it hard to sleep, Dr. Claire
also prescribed some sleep aides. He also referred the plaintiff for massage
and/or physiotherapy. The plaintiff preferred massage therapy but also received
chiropractic treatments from Dr. Khehra.

[33]        
Dr. Khehra and the plaintiff’s massage therapist
gave the plaintiff exercises that she has performed daily and whenever she
feels pain. She continued with the exercises after she stopped chiropractic
treatments in 2007.

[34]        
The plaintiff attempted to return to work on a
gradual basis in February 2007, but found the pain was too much. She returned
to work on a full time basis with the bank on March 19, 2007. Her return to
work at CRS was somewhat more delayed but she has long since returned to work
there as well. The plaintiff has paid $2,279 in subrogation benefits, which
represent 75% of her lost wages from CRS.

[35]        
The plaintiff did not suffer any loss of wages
from her work as a personal banking representative because the bank covered all
her wage losses with no subrogation claim.

[36]        
Returning to the progress of the plaintiff’s
injuries, after the first six months of her injuries, she found that the pain
was still there and was somewhat exacerbated by some activities and the cold. She
said her neck pain was still at a level of seven out of 10, with the pain
between her shoulder blades at a constant level of six out of 10, still
radiating into her lower back. Overall, she said that she had good days and bad
days, but still felt considerable pain. She continued to follow treatment
recommendations, and to those added “hot yoga treatment”; she also hired a
personal trainer, mostly to ensure that she was doing the exercises properly
and to strengthen her core muscles. She discontinued her personal training
sessions in January 2008 after the trainer left for Ontario. However, In
January 2009, she joined a gym and claims the cost of the gym membership.

[37]        
By late 2008, the plaintiff says that she was
70% recovered. She testified, however, that she continues to suffer setbacks,
which she describes as being “almost to the severity of the accident”, giving
the example of dancing at a wedding and finding herself hardly able to move the
following day.

[38]        
As far as the current effect of the injuries is concerned,
she continues to have trouble at work when she puts banking documents away.
Some of these documents are fairly heavy and putting them away requires
overhead motions which she finds difficult, so sometimes has have someone else
do that for her. She finds standing and sitting with customers for extended periods
difficult, but stretching alleviates the pain.

[39]        
As far as household activities are concerned,
she advances a claim for considerable interference with her homemaking capacity
following the accident. She testified that she used to spend one day of the
week on homemaking activities, with two to three hours of continuous vacuuming in
the 6,000 square foot house she shares with her mother, father and brother. She
says that she has since returned to some vacuuming but not to the same extent,
and her mother has assumed greater responsibility.

[40]        
She finds washing her delicate and colourful work
clothes very hard because she has to bend over to do this by hand in the
bathtub, and experiences a great deal of pain in her shoulders and neck. She
returned to cleaning the bathroom in late 2007, however, is still not able to
do this to the same extent as before. That task has also fallen to her mother. Grocery
shopping is difficult and she has not returned to bulk purchasing because she
finds it too heavy. Her father now does this.

[41]        
With respect to recreation, she describes
herself as an avid skier and says that she and her family enjoyed annual ski
trips to Whistler with relatives from England. She would usually ski with her
relatives during these week-long trips, but has been unable to since the
accident, at least not to that extent or to the same level as before. In 2007,
during this annual family vacation, she couldn’t ski because she was in too
much pain and, in her words, “it ruined the vacation”. In 2008, she returned to
skiing but could not ski for a full day as a result of increased pain. She is
still able to ski for only 10 or 15 minutes at a time.

[42]        
Prior to the accident, the plaintiff enjoyed
playing tennis on Sundays but has not been able to return to that, although she
did try once in 2008 and found it too painful.

[43]        
She also used to enjoy running outdoors, but she
has been unable to run since the accident because she has found it too painful.
In 2009, she started running on a treadmill in the gym. She finds that this irritates
her lower back and neck. Since the accident, she has gained 10 to 15 pounds.

[44]        
Her social life has also been negatively
affected. She said that pre-accident she was very active, post-accident much
less so. Even watching movies is very difficult as sitting increases her pain.

[45]        
At this point, the plaintiff says she has good
and bad days with her neck pain, which still produces the same pattern of
headaches stemming from the base of her skull radiating up her neck. She takes
Advil for her headaches, which occur about three to four days per week. The
headaches gradually worsen until she feels like vomiting and needs to take
Advil to prevent this. She complains of constant pain between her shoulder
blades, at a level six out of 10 still radiating to the mid and lower back. Nonetheless,
despite these descriptions, she admits to a recovery of up to 70% now.

A.             
Pre-accident Complaints

[46]        
On cross-examination, counsel referred the
plaintiff to the clinical records of Dr. Khehra. They indicate that the
plaintiff attended approximately 19 chiropractic treatments with Dr. Khehra
prior to the accident. Her initial visit on November 12, 2003 dealt mostly with
lower right back pain, but also addressed complaints of neck pain and headaches
occurring at the same time. Dr. Khehra noted at that date that the plaintiff’s
neck pain, when at its worst, ranged to nine out of 10,  and averaged two to three
out of 10 when taking medication. The neck pain lasts up to two to eight days,
according to the notation. The plaintiff was unable to recall difficulty with her
neck and back at that time.

[47]        
Overall, Dr. Khehra’s records reveal a pattern
of treatment for the plaintiff’s neck, mid back and lower back pain, primarily
complaints relating to the lower back—although the report makes specific
references to pain in the neck and mid back, most notably July 19, 2006, where
the notation indicates that the plaintiff’s neck was very sore and stiff. However,
the July 26, 2006 note indicates that the plaintiff was much improved after the
previous adjustment, and that she was discharged because she required no
further treatment at that time. In fact, she received no further treatment from
Dr. Khehra after her appointment on July 26, 2006 until the date of the
accident.

[48]        
I found the plaintiff evasive when cross-examined
about her prior treatments. In examination for discovery, she admitted to
having chiropractic treatments only once or twice previously, which is of
course difficult to reconcile with the 19 treatments recorded in her clinical
report with Dr. Khehra. She explained that she was referring only to the year before
the accident; however, the question directed her attention to previous years
and did not restrict the time to the year before the accident. At question 353
of the examination for discovery, the plaintiff specifically denied any
problems before the accident in her upper back and shoulders blades. Again, she
stated that she interpreted this as relating only to the previous year of 2006,
although she also appears to have received treatment in both of those areas
during that time. She did acknowledge that she saw another chiropractor before Dr.
Khehra while attending high school. Those records are not available.

[49]        
In his February 20, 2009 chiropractic report,
Dr. Khehra says only this about the plaintiff’s previous conditions:

[The plaintiff] gives
a history of prior good health. She reports no pain prior to [the motor vehicle
accident]. Prior to current injury, [the plaintiff] was last treated July 2006
for mild cervical strain and released from care with the conditions resolved. All
current conditions I feel are related to her [motor vehicle accident].

[50]        
I find Dr. Khehra’s report to be somewhat
incomplete in not fully addressing the effect of the plaintiff’s previous
injuries on her post-accident state, particularly given her lengthy record of
chiropractic treatments prior to the accident. Dr. Khehra makes no mention of
the types of complaints the plaintiff suffered from prior to the accident, nor
the sheer number of chiropractic treatments she received. Likewise, with
respect to the plaintiff’s literal interpretation of defence counsel’s questions
regarding her pre-accident treatments, I find that the plaintiff did minimize
the level of her pre-accident complaints. While it is true that the records
refer little to pain in the neck and mid back and that the focus is more on the
lower back, it is also clear that the plaintiff received treatment in the neck,
mid back as well as the lower back prior to the accident. However, my overall
impression of the plaintiff remains favourable.  I find that she was
essentially asymptomatic at the time of the accident and did not intend to deliberately
mislead about her previous history. 

[51]        
In sum on this issue, given the indicators that
she was discharged from Dr. Khehra’s care on the apparent understanding that
her condition had resolved, the plaintiff can legitimately claim, at least on
the basis of that record, that she was not experiencing any pain at the time of
the accident. However, this stands within the context of a history of spinal
pain affecting some of the same areas as those which were injured in the motor
vehicle accident.

B.             
Medical Reports and Prognosis

[52]        
As noted earlier, the plaintiff saw her family
physician, Dr. Claire, after the accident. At page 2 of her April 28, 2008
report, Dr. Claire states that, while the plaintiff had reached a plateau of
recovery, he believed the plaintiff would recover fully, however he also noted that
his comment was somewhat premature at that time:

Ms. Basi was last seen on March 18,2008. She
was working fulltime. Her main area of residual pain was in the back especially
between the shoulder blades. She had reached a  plateau in her recovery over
the past few months. She was more careful during physical activity to avoid pain
flare ups. She was seeing a personal trainer and trying to strengthen those
areas and improve her physical conditioning. She was able to do heavier
housework but in a limited fashion instead of all at one time. She was
prescribed some Naprosyn for episodic use, and advised to continue with the
exercise and conditioning with her personal trainer.

…

I do not believe
Ms. Basi requires any special investigation. Ms. Basi has some residual pain
and limitation to heavy and vigorous activity. I think she would be best
managed by an exercise program to regain her strength and endurance.I believe
she would benefit from an exercise program. She has already initiated something
on her own and it may be easier to continue and expand this if necessary rather
than investing in a completely new program. I am of the opinion she should make
a complete recovery but this is a premature comment. She may still require some
analgesics for episodic pain.

[53]        
Dr. Khehra, at p. 4 of his February 20, 2009
report, also states that he believed that the plaintiff would eventually make
full recovery:

Prospective future treatment and condition.

At this time, future chiropractic treatment
and/or massage therapy are likely to deal with any flare-ups or bouts of
increased pain in cervical/thoracic spine and/or lumbar spine. A regular
exercise routine will likely be necessary to maintain and increase muscle
strength to prevent further pain and flare-ups. Although [Ms. Basi] has not
fully recovered at this time I anticipate, in the long term, [Ms. Basi] will
make a full recovery.

Permanent disability.

I do not
anticipate any permanent disability as a result of the MVA.

[54]        
Based on the plaintiff’s testimony and the medical
evidence before me, I find that the plaintiff has nearly made a full recovery
from the effects of the accident and will fully recover if she follows the
medical advice of Dr. Claire and Dr. Khehra. She has long since returned to her
work on a full time basis. She can improve further with appropriate exercise,
and it appears that she should be more aggressive in that regard.

C.             
Diminished Housekeeping Capacity

[55]        
 The plaintiff and her mother testified that
since the accident, her family members, especially the plaintiff’s mother, have
carried out more of the housework that the plaintiff used to do because of the
plaintiff’s accident-related incapacities.

[56]        
Counsel for the plaintiff submits that I should
assess the plaintiff’s loss of homemaking capacity on a replacement cost
approach. Defence counsel submits that neither the witness evidence nor the
medical evidence support a separate award for loss of homemaking capacity.

[57]        
If the plaintiff proves a loss of homemaking
capacity on the balance of probabilities, compensation falls under a separate
head of damages: Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 58
B.C.A.C. 1 [Kroeker].

[58]        
As the Court of Appeal noted in McTavish v. MacGillvary, 2000
BCCA 164, 74 B.C.L.R. (3d) 281, the plaintiff can
recover for loss of homemaking
capacity even though she has incurred no expense to hire replacement services. Furthermore, housekeeping services can be provided
gratuitously by a family member; however, the loss remains the plaintiff’s, not
the family members who provide the service:

[63]      …it
is now well established that a plaintiff whose ability to perform housekeeping
services is diminished in part or in whole ought to be compensated for that
loss. It is equally well established that the loss of housekeeping capacity is
the plaintiff’s and not that of her family. When family members have
gratuitously done the work the plaintiff can no longer do and the tasks they
perform have a market value, that value provides a tangible indication of the
loss the plaintiff has suffered and enables the court to assign a specific
economic value in monetary terms to the loss. This does not mean the loss is
that of the family members or that they are to be compensated. Their provision
of services evidences the plaintiff’s loss of capacity and provides a basis for
valuing that loss. The loss remains the plaintiff’s loss of economic capacity.

[59]        
Damages can be awarded under a segregated heading of non pecuniary
damages or as part of special damages, depending on the facts: Kroeker.

[60]        
The plaintiff’s mother testified that the family
lives in the 6,000 square foot home with all the adult children living at home
until they are married in accordance with Sikh custom. She said that the
plaintiff does housekeeping out of love and affection.

[61]        
Plaintiff’s counsel advanced a claim for damages
in the amount of $19,680 based on the assumptions that:

a)   
pre-accident, the plaintiff averaged 11.75 hours
per week of housework as follows: vacuuming and dusting once a week for five to
six hours; washing her clothes once a week for one hour; cleaning the bathrooms
and toilets daily for a total of two hours per week; grocery shopping once a
month for five to six hours; and washing pots and pans daily for 15 to 20
minutes;

b)   
post-accident, the plaintiff averaged 1.5 hours
per week of housework, for a difference of 10.25 hours of housework she was not
able to complete post-accident;

c)    
in the 128 weeks since the accident, the
plaintiff’s mother has taken over 10.25 hours of household chores that the
plaintiff used to do, for a total of 1312 hours of household work;

d)   
thus yielding, at $15 per hour, a value of $19,680.

[62]        
Based on these figures and the assumption that
the plaintiff performed housekeeping for 11 to 12 hours per week, the plaintiff
would see little time left over for engaging in her various recreational and
social activities in the limited hours remaining after working more than 60
hours per week. Twelve hours of housekeeping represents the equivalent of a
further full day and a half of full time work every week. There is an air of
unreality surrounding these figures, and I am not persuaded that the
plaintiff’s figures provide a reasonable basis for assessing damages. Ms.
Basi’s mother, considering how hard the plaintiff was working outside the home,
acknowledged that 12 hours weekly of housekeeping was too much for the
plaintiff.

[63]        
Further, the medical evidence does not lend sufficient
support to a finding that the plaintiff’s injuries have disabled her from
housekeeping to the extent claimed in the assumed figures, especially within
the last two years.

[64]        
I have not completely disregarded the
plaintiff’s calculation, but the hours claimed for replacement services should
be reasonable and supported by the medical evidence.  I am not satisfied on the
balance of probabilities that the plaintiff performed between 11 and 12 hours
of housekeeping prior to the accident as set out in counsel’s calculations. I
am also not persuaded on a balance of probabilities that the accident has
incapacitated the plaintiff to the extent represented in the plaintiff’s
calculations, especially not throughout the full 128 weeks since the accident.
Neither does the evidence persuade me that the plaintiff’s injuries will
incapacitate her homemaking activities in the future, except to a minor degree
into the very near future. 

[65]        
I accept that the plaintiff had to cut back on
her housekeeping  tasks after the accident to a considerable extent especially
in the first six months, and that her mother has had to assume a good portion
of those tasks; I also accept that the plaintiff carried out housekeeping with
difficulty at times, as noted by Dr. Claire. I find an award of $7,000 for loss
of homemaking capacity is fair and reasonable, and this will form a separate
head of damages under the heading of non-pecuniary damages.

D.             
Loss of Income

[66]        
The parties agree that the plaintiff’s wage loss
claim of $3,857 is reasonable. As far as loss of future earning capacity, the
medical evidence does not justify such an award. The plaintiff is very close to
making a full recovery from the effects of this accident and, according to
accepted evidence, will make a full recovery from her injuries, and I am not
persuaded of a diminishment of her earning capacity on any of the accepted
bases: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, 35 A.C.W.S.
(2d) 96 (C.A.). The plaintiff has long since returned to the
same employment on a full time basis and has continued in it since.

E.             
Non Pecuniary Damages

[67]        
This is a moderate soft tissue injury with
symptoms prolonged beyond the usual period expected possibly on account of the
plaintiff’s clinical history of complaints in the same areas as noted before
the accident. However, she was asymptomatic pre-accident, except for occasional
headaches. She has steadily improved since the accident. She returned to her to
job at the bank by March 19, 2007, a little over two months after the accident,
and to the CRS not long after that. She has returned
to full time work, with her work hours totalling over 60 hours per week. Recreational
activities such as skiing and running have been negatively impacted, and her
homemaking capacity has been diminished. She has made a near full recovery from
her injuries, and the accepted medical evidence indicates the plaintiff will see
a full recovery in the future, though she may suffer minor flare-ups.

[68]        
The plaintiff relies on: Tong v. Sidhu,
2009 BCSC 305, [2009] B.C.J. No. 429 (QL) ($30,000); Montes v. Lee,
2007 BCSC 1238, [2007] B.C.J. No. 1811 (QL) ($30,000); Laroche v. MacPhail,
2007 BCSC 1451, 162 A.C.W.S. (3d) 763 ($30,000); Bjarnason v. Park,
2009 BCSC 48, [2009] B.C.J. No. 75 (QL) ($35,000).

[69]        
The defendant relies on: Cox v. Bounthavilay,
2007 BCSC 1199, 160 A.C.W.S. (3d) 796 ($20,000); Bohnke v. Vendervelt,
2006 BCSC 75, [2006] B.C.J. No. 122 (QL) ($20,000); Densch v. Kirkpatrick,
2007 BCSC 277, 155 A.C.W.S. (3d) 1126 ($20,000).

[70]        
The cases cited by counsel encompass the appropriate
range of damages for a case of this kind, but of course, each case involves its
own factors, and therefore requires an individual assessment.

[71]        
Based on all the evidence before me, I award $30,000
to the plaintiff for non-pecuniary damages, in addition to a $7,000 award for diminishment
of homemaking capacity.

F.             
Special Damages

[72]        
I award $2,126.68 to the plaintiff, which
encompasses all the items claimed less the cost of the gym membership which I
am not satisfied should be the responsibility of the defendant in this case.

G.            
Damages Summary

[73]        
Based on the foregoing, I award a total of $42,983.68
to the plaintiff in damages incurred as a result of the motor vehicle accident.

H.             
Costs

[74]        
The plaintiff is entitled to costs under Rule 66,
Rules of Court. The defendant Mr. Sarai shall bear Mr. Buttar’s costs up
to and including the examinations for discovery. The plaintiff shall bear Mr.
Buttar’s costs after the examinations for discovery to the conclusion of the
trial, with the plaintiff bearing one half of those costs.

“N. Brown
J.”