IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100121

Docket:
M092964

Registry: Vancouver

Between:

Ravinder Mavi

Plaintiff

And

Jacob Stephen Booth

Defendant

Before: The Honourable Mr. Justice Walker

Oral Reasons for Judgment

Introductory
remarks

[1]            
THE COURT:    The plaintiff, Ravinder Mavi,
seeks recovery of damages against the defendant, Jacob Stephen Booth, arising
from a motor vehicle accident that occurred on June 26, 2006 in Langley,
British Columbia.

 [2]     The accident occurred when Mr.
Mavi was driving home from work in his mother’s 1990 Honda Accord.  He had been
driving at approximately 10 kilometres per hour on the Fraser Highway in
stop-and-go traffic.  When Mr. Mavi stopped in a line of traffic approximately 100
metres from the intersection of Bradner Road, he was struck from behind by a
1991 half-ton Chevrolet pickup truck driven by Mr. Booth.  That vehicle
had a steel front bumper.

[3]      Liability was denied on behalf
of Mr. Booth until the morning of the first day of trial.  A formal admission
of liability was made on his behalf at that time, leaving the issues of
causation and the extent of injuries, if any, suffered by Mr. Mavi outstanding.

[4]      The position advanced at trial
on behalf of Mr. Booth is that Mr. Mavi did not suffer any injuries in the
rear-end collision since it was a low-velocity impact.  No medical evidence was
tendered on behalf of Mr. Booth.

[5]      Born on December 8, 1984, Mr.
Mavi is currently 25 years old.  He was working at Lami Glass at the time of the
accident.

[6]      Mr. Mavi’s evidence is that he
suffered from neck and back pain following the accident, which he says has
improved to approximately 80% of his pre-accident level.

The
Accident

[7]      Mr. Mavi described being
pushed forward against his lap-and-shoulder seatbelt (which he was wearing) and
that then his body reverted back again.  His body did not strike anything in
the vehicle.  His vehicle was pushed forward, but not enough to come into contact
with the vehicle in front of him.  He recalls hearing a “screech” before the
collision occurred.  He described his head jerking forward after his vehicle
was struck.  He and Mr. Booth exchanged information.

[8]      Sometime later, at a point in
time not made clear, Mr. Mavi said he found the left side of the bumper to be a
little bit loose.  Mr. Booth’s pickup truck struck the middle to right side of the
rear of Mr. Mavi’s vehicle.

[9]      No evidence was tendered concerning
the speed of Mr. Booth’s vehicle.  Mr. Mavi’s vehicle had a plastic
bumper. 

[10]    According to Paul Pass, an
estimator who is employed by ICBC and who examined Mr.  Mavi’s vehicle
following the accident, the rear bumper of Mr. Mavi’s vehicle is made of
urethane – it is malleable as opposed to being a hard rubber bumper.  Mr. Pass
identified the photographs in evidence of the vehicle driven by Mr. Mavi and
pointed to scuffing on the rear of its bumper.  He said he did not see any
other damage to the vehicle, nor did Mr. Mavi point any out.  Mr. Pass
authorized the bumper to be replaced, as it was, in his view, more economical
to do so than to have it repaired.  Mr. Pass did not notice if the left side of
the rear bumper was loose.  He relied on his standard practice to walk around
the vehicle and to rely on the claimant to identify damage.

[11]    Mr. Mavi says he noticed the
left side of the bumper where it connects to the body of the vehicle to be
loose.  He noticed this after the accident.  According to Mr. Pass, a
strip of foam sits behind the rear bumper cover and in front of the rebar that
is attached to the body of the vehicle.  Mr. Pass could not say if the foam was
damaged or impacted from the collision in any way since he did not remove the
bumper cover when he examined Mr. Mavi’s vehicle.

[10]    Mr. Pass’s assumption that
there was no damage to the foam because the auto body shop carrying out the
repairs did not call him to seek approval to replace the foam does not prove on
a balance of probabilities that the foam was not damaged.  Mr. Pass’s evidence
on this point is entirely speculative.  No evidence was called from the body
shop that effected the repairs.  Thus, there is no direct proof on the point or
any evidence from which I can infer that there was no damage to the foam, since
there was no evidence tendered at all as to the standard practice of the auto
body shop to always seek approval when further damage, beyond that which is
initially authorized, is found.

[11]    According
to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the
question of whether someone in Mr. Mavi’s position suffered an injury from a
low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence
was:

A:         I see people who have car
accidents like this and they’re not the driver and they walk away from that or
they have relatively little symptoms.  I see people who have relatively little car
damage.  You have to look not so much at the car but the change in velocity of
the car.  So you could have very little damage because there was no absorption
of power to the car but the car was accelerated forward.  And I don’t know
that.  What I’m saying is that there’s not a direct correlation between car
damage and injury to the living organ in the car.  It depends on the change in
velocity.

Q:        The change in velocity is the
more important factor to look at?

A:         For
the occupant, yes.  The change in velocity…

[12]    No evidence was called on
behalf of Mr. Booth to rebut Dr. Hirsch’s opinion, nor was any evidence called
on Mr. Booth’s behalf concerning the change in velocity involved to Mr. Mavi’s
vehicle in this rear-end collision.  Instead, liability was denied to Mr. Mavi
at the outset shortly after the accident occurred, on the basis that it
involved a low-velocity impact, and even though no effort was made to remove
the rear bumper cover to determine if there was any damage to or impact upon
the foam.

[13]    In addition to it being
unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be
consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s
general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both
Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject
motor vehicle accident. 

[14]    There is no rule of law or
legal principle that a victim of a low-velocity rear-end impact does not suffer
an injury compensable in law.  In each case, it is a question of fact. 

[15]    I accept the opinions of Drs.
Hirsch and Beytell that Mr. Mavi suffered injuries in the motor vehicle
accident based upon their examinations of their patient and also in part upon
Mr. Mavi’s subjective accounts provided in his evidence.  For reasons I will
discuss below, I also accept Mr. Mavi’s evidence that he was injured in the
accident and suffered symptoms (relating to those injuries).  I find that Mr.
Mavi was injured in the motor vehicle accident, and the question I must now
determine is the extent of those injuries.

[16]    Whether the left side of the
rear bumper came loose as a result of the accident is, in the circumstances,
not relevant to the issue of causation.  Mr. Mavi’s evidence is that he
noticed it loose at some point after the collision.  He does not point to nor was
any evidence tendered on his behalf to show that the impact caused it to come
loose.

Mr.
Mavi’s injuries and symptoms

[17]    Mr. Mavi lived at home when the
accident occurred.  He had been working at Lami Glass in Langley for a week or
two, lifting and stacking heavy glass panes weighing approximately 20 pounds
each during a daily eight-hour shift.  After the accident, his employer moved
him to lighter office duties and then, to provide consulting regarding
occupational health and safety once his employer realized Mr. Mavi had
some training in that field.  In fact, Mr. Mavi had work experience providing
occupational workplace safety consulting for other employers:  Pacific Pallets,
VAE Nortrak Ltd., Golden Valley Foods and Allied Windows.

[18]    Mr. Mavi is currently studying
in Edmonton to obtain a diploma in occupational health, having previously
obtained a certificate.

[19]    Mr. Mavi missed one day of work
due to the accident and no wage loss claim is being advanced (past or future). 
The claim he is advancing is for non-pecuniary damages, special damages, and
the cost of future care.

[20]    Prior to the motor vehicle
accident, Mr. Mavi worked out at a local gym on a regular basis, approximately
four to five times per week.  He also participated in boxing (including
sparring), two to three times per week, and played basketball two to three
times per week. 

[21]    Mr. Mavi became quite interested in
weight training and lifting through the encouragement of his brother-in-law
Charan Rai, who is, and was at the time of the accident, an occupational
therapist who operates his own consulting company (and has for approximately
nine years).

[22]    Mr. Rai has known Mr. Mavi for
about six years.  For approximately three months prior to the accident, Mr. Rai
saw Mr. Mavi at the gym often.  Mr. Rai worked out seven days per week – he generally
saw Mr. Mavi at the gym about five days per week in the afternoons.  According
to Mr. Rai, he was lifting 60-pound dumbbells at the time when he first saw Mr.
Mavi, and Mr. Mavi’s abilities improved so that just prior to the accident, Mr.
Mavi’s lifting capacity was slightly less than Mr. Rai’s.  In other words,
it was slightly less than 60 pounds on the dumbbells.

[23]    Mr. Rai also observed Mr.
Mavi’s tolerances, describing them to be unlimited – there were no barriers or
defects, no observable pain that would stop Mr. Mavi from his workout.  Mr.
Mavi’s ability to lift heavier weights improved so that his tolerance was very
close to Mr. Rai’s when the accident occurred.  According to Mr. Rai, that
changed after the motor vehicle accident.  Mr. Mavi, he observed, could not
lift as heavy a weight and used a machine system called a Smith machine for
leverage.  Even so, Mr. Mavi complained of neck pain when he used that
machine.  As a result, Mr. Mavi decided to work on his legs as opposed to his
neck and trapezius muscles.  He went to the gym following the accident, usually
at the same frequency as he did prior to the motor vehicle accident.

[24]    Mr. Rai and Mr. Mavi also drove
on a couple of road trips together before the accident occurred, one to
Kamloops and another to Edmonton.  Mr. Mavi drove because Mr. Rai does not
particularly like long-distance driving.  This changed following the accident
since Mr. Mavi complained of pain when driving long distances.  Ultimately, Mr.
Rai said, he recommended that Mr. Mavi see a physiotherapist to look after his
symptoms.

[25]    I accept Mr. Rai’s evidence,
which was not challenged.  Moreover, Mr. Rai presented as a truthful,
careful and candid witness.

[26]    Mr. Mavi enjoyed lifting
weights at the gym, boxing, sparring, punching the boxing bag, and playing
basketball before the accident.  He described his “sparring” as light sparring
with an opponent, where he wore head gear, a mouthpiece, and gloves.

[27]    In terms of his injuries and
symptoms from the accident, Mr. Mavi described a very sore back and numbness
and tingling in his left arm.  They improved during the first year following
the accident, by the end of which, he said, he had achieved 80% improvement in
his symptoms; from that point on, his symptoms and his restrictions have
levelled off.

[28]    Mr. Mavi stayed home from work
one day, the day after the accident, and then returned the following day.  Mr.
Mavi’s doctor recommended physiotherapy, which he followed between July and
October of 2007 until, as he understood it, the benefits were no longer covered
by Mr. Booth’s insurer.  He attended physiotherapy approximately 17 times.  He
did not continue with it since he could not afford it.

[29]    Mr. Mavi said that the
physiotherapy helped decrease his back pain.  According to Mr. Mavi, he was
affected “a lot” with pain in the first few months following the motor vehicle
accident.  He could not lift as much weight as he did previously (down to about
20 to 25 pounds with fewer repetitions).  He used weight machines more than
free weights, and he could not spar at all.  He found his back to be sore after
he exercised, although he said some of the core strength exercises he carried
out helped him. 

[30]    Mr. Mavi also performed lighter
duties at Lami Glass, since he found he could not lift glass throughout the
day. 

[31]    He described the location of
the neck and back pain he suffered within the year following the motor vehicle
accident as “feeling” as if they “are together”, located in the lower part of
his neck and in the upper part of his back. 

[32]    Mr. Mavi said he still suffers
symptoms and restrictions from the motor vehicle accident.  For example, if he
is sitting for long periods of time at school, then he needs to stretch.  He
needs to be careful lifting.  He cannot perform certain exercises at the gym that
he used to.  He does not like to spar.  He has difficulty performing certain
household chores such as vacuuming and washing the dishes, as they can cause
back pain.  He admitted, very candidly, that due to his exercise regime, he is
now able, post-accident, to bench press 180 pounds.  The occurrence and level
of pain, he said, depends on the nature of the activity he is performing. 
Mr. Mavi still experiences back and neck pain three to four times per week
in a typical one-week period.  He describes it as “a pinching pain like someone
poking you with needles”.  “It’s a very uncomfortable feeling,” he said. 
Currently, he treats the pain by stretching, going to the gym to work out,
performing core exercises and lifting weights.

[33]    He found working at a retail
job at the Buffalo clothing store (after the accident) caused back pain after
folding clothes for a few hours or standing for about eight hours.  Other than
what he has described, he likes to think he can perform most of his
pre-accident activities.

[34]    Mr. Mavi has not enrolled in
pilates or tai chi classes, which Dr. Hirsch recommended.  He has not had the
time while studying and attending classes in Edmonton, since those classes
usually run from 8:00 a.m. to 4:30 p.m. daily, five days per week, with study
time needed in addition.

[35]    Mr. Mavi was involved in four
prior motor vehicle accidents : 1997, September and October 2004, and March
2006.

[36]    He suffered a fractured
clavicle and fractures to a few ribs in the 1997 motor vehicle accident.  He
told me the clavicle on the left side still feels weak. 

[37]    He suffered a knee injury, torn
cartilage, and possibly a back injury in the October 2004 accident.  He says
the back pain resolved before the subject motor vehicle accident with the help
of physiotherapy.  His knee injury still bothers him if he runs or sits in the
back seat of a car. 

[38]    Mr. Mavi could not recall if he
suffered any injuries in the motor vehicle accident that occurred in September 2004. 
He said that he did not suffer any injury in the motor vehicle accident in March
2006.  With the exception of his clavicle and knee problems, he claims to have
been asymptomatic prior to the subject motor vehicle accident.

[39]    Mr. Mavi’s claim that he
suffered injuries from the motor vehicle accident is supported by Drs. Beytell
and Hirsch.

[40]    Let me turn to Dr. Beytell’s
evidence.

[41]    Dr. Beytell first saw Mr. Mavi
on September 27, 2007.  Mr. Mavi had attended upon a different general
practitioner at a walk-in clinic for his pain symptoms arising from the motor
vehicle accident.  He eventually met Dr. Beytell at that clinic (at a
subsequent visit) and liked him so much that from there, Mr. Mavi decided to
move to Dr. Beytell’s practice as a new patient.

[42]    During that initial visit on
September 27, Dr. Beytell found, on examination, tenderness along the shoulder,
neck, and upper back.  Dr. Beytell’s note of the consultation refers, in part,
to “upper mid-back”.  There are also references to upper back and mid-back in
Dr. Beytell’s two reports that were tendered in evidence.

[43]    In his report dated January 15,
2008, he states, in part, that Mr. Mavi “complained of a pins-and-needles
sensation in the left arm and back ache in the mid- back”. 

[44]    In his report dated June 10,
2009, Dr. Beytell refers to complaints of back pain made by Mr. Mavi on
different dates – on one date the pain is in his mid-back, and on another, it in
his upper back. 

[45]    In his oral testimony, Dr.
Beytell explained that by “mid-back” he meant an area from the chest line up to
the neck.  Much was made about this point during the cross-examination of Dr.
Beytell and of Mr. Mavi to suggest an inconsistency in the location of pain
complaints made by Mr. Mavi, and to suggest a lack of credibility on Mr. Mavi’s
part.  I reject any such assertion.  I accept the evidence given by Dr. Beytell
to explain the location of the pain described by Mr. Mavi.  Mr. Mavi was also
consistent in his description of the location of his pain symptoms. 

[46]    I reject any suggestion that
Mr. Mavi lacked credibility, even though he conceded in cross-examination that
he must have told Dr. Beytell his pain was in his mid-back as opposed to his
upper back and neck.  Mr. Mavi gave that evidence when confronted with Dr.
Beytell’s reports.  Mr. Mavi’s evidence was, in effect, an assumption based
upon the choice of words used by Dr. Beytell, a choice of words that Dr.
Beytell later clarified (to mean a large area from the chest line up to neck,
which includes the mid- and upper-back).

[47]    Dr. Beytell checked for pain
behaviour when carrying out his assessments of Mr. Mavi on the initial and
subsequent visits.  He did not find any indication of fabricated or exaggerated
complaints. 

[48]    Dr. Beytell found tenderness on
Mr. Mavi’s visit of October 25, 2007, located in the paraspinal and trapezius
muscles.  The paraspinal muscles run from below the neck, on either side, and
between the shoulder blades.  Mr. Mavi reported his pain to be a lot less at
that time. 

[49]    Tenderness was still present on
the next visit, on November 23, 2007, and on subsequent consultations through
to 2009.  For example, on examination, Dr. Beytell found tenderness of the
trapezius and paraspinal muscles on August 27, 2009.

[50]    In Dr. Beytell’s opinion, Mr.
Mavi suffered soft tissue injuries with no spinal injury.  He found Mr. Mavi to
have full range of motion throughout and no neurological abnormalities. 
Although he initially opined in his report of January 15, 2008, that “it
is certainly possible that [Mr. Mavi’s] back pain was due to the MVA”, he later
clarified and opined that Mr. Mavi’s soft tissue injuries were caused by the
motor vehicle accident.  He also opined that he did not perceive that Mr. Mavi
would suffer any permanent disability as a result of the accident, especially
since his pain is now intermittent, and only bothers him after carrying out
activities that reinjure his back.  Dr. Beytell has recommended that Mr. Mavi
attend massage therapy as needed.

[51]    I now turn to Dr. Hirsch.

[52]    By
agreement, Dr. Hirsch was qualified as an expert in the field of physiatry,
physical medicine, and rehabilitation. 

[53]    Dr.
Hirsch examined Mr. Mavi on June 8, 2009 for an independent medical
examination.  In his opinion, Mr. Mavi suffered soft tissue injuries to his
neck and back as a result of the accident.  At the time of his report, which is
dated June 8, 2009, Mr. Mavi had, in his opinion, achieved partial
symptomatic recovery to approximately 80% of his pre-accident level and 100% of
his pre-accident functional level. 

[54]    Dr.
Hirsch examined Mr. Mavi and found localized tenderness in the paracervical
region as well as in the right upper trapezius and levator scapulae muscles. 
Otherwise, there were no other symptoms.  Range of motion was, as he expected,
full.  Dr. Hirsch also tested Mr. Mavi for pain behaviour, which is designed to
check for feigned pain symptoms.  Those tests were negative.  For example, he
tested Mr. Mavi for superficial tenderness and elicited no response. 
Tenderness with superficial pressure would mean a feigned pain response. 
According to Dr. Hirsch, there should not be a pain response with
extremely light touch.  Superficial tenderness suggests a non-organic sign. 

[55]    Dr.
Hirsch also explained that full range of motion is not inconsistent with
Mr. Mavi’s complaints, and that he would expect it in this case. 

[56]    Based
on his examination of Mr. Mavi as well as Mr. Mavi’s clinical records (in
evidence), Dr. Hirsch opined, in part: 

Today’s examination of the right shoulder
girdle revealed a well-healed mid-shaft clavicular fracture.  There was no
clinical evidence of impairment of the right sternoclavicular or right acromioclavicular
joints.  There was no clinical evidence of right shoulder joint intrinsic
abnormality.  In particularly, there was no evidence of frozen shoulder,
shoulder instability, rotator cuff tendinopathy, labral tear or a SLAP lesion.

Mr. Mavi reportedly has been experiencing
recalcitrant intermittent right medial knee pain for more than four years. 
Today’s examination of the right knee revealed localized tenderness of the
medial plica.  Clinically, there was no evidence of ligamentous deficiency or
meniscal tear.

Regarding the reported intermittent painful
right knee condition, I recommend conservative management.  This should consist
of quadriceps and hamstring muscle strengthening exercises.  Mr. Mavi may
benefit from wearing foot orthotics to decrease the strain on the inner aspect
of his right knee.

It is my opinion that Mr. Mavi’s ongoing
mild right medial knee and right collar bone symptoms are entirely unrelated to
the subject motor vehicle accident. 

Mr. Mavi reported that, as a result of the
October 2004 motor vehicle accident, he experienced neck pain, which completely
resolved within approximately one year.  He reportedly responded favourably to
chiropractic treatments as well as carrying out an exercise program according
to the instructions of his former chiropractor.

…

According to today’s obtained history and
review of the forwarded clinical records, it is my opinion that the neck
injuries Mr. Mavi allegedly suffered in the October 2004 motor vehicle accident
had no bearing on Mr. Mavi’s post June 2007 motor vehicle accident clinical
course. 

…

Based on today’s obtained history and review
of the forwarded clinical documents, Mr. Mavi sustained relatively minor
injuries to his neck and upper back in the subject motor vehicle accident. 
These injuries were probably limited to soft tissue structures such as muscles
and tendons attaching to the lower cervical spine and upper back. 

There is no historical or clinical evidence
that Mr. Mavi incurred more significant structural damage to his neck or upper
back such as a fracture, disc protrusion/herniation or ligamentous injuries
resulting in segmental instability.  There is furthermore no evidence that Mr.
Mavi sustained a traumatic brain injury, injury to his spinal cord or to any of
his cervical, thoracic or lumbosacral nerve roots in the June 2007 motor
vehicle accident.

Mr. Mavi reportedly missed one day from work
as a result of this motor vehicle accident.  He reported that for a few months,
he was restricted in his social and sporting recreational activities.  It is
reasonable to assume that his temporary partial social and recreational
disability was probably causally related to the injuries he sustained to his
neck and upper back in the June 2007 motor vehicle accident.

According to today’s assessment, Mr. Mavi
has made a good recovery.  His neck and truncal mobility and alignment were
normal.  There was no objective clinical evidence of neurologic deficit or
nerve root irritation.  The findings on examination included mild localized
tenderness in the neck and upper back as delineated below.  No exaggerated
illness behaviour was observed.

It is my opinion that Mr. Mavi’s residual
posterior lower cervical and upper back symptoms are primarily if not
exclusively muscular in origin.  There is no clinical evidence of an underlying
sinister process to account for the reported lingering neck and upper back
symptoms.  Furthermore, there is no clinical evidence of an underlying
structural abnormality of his neck or upper back.

In regard to future management, Mr. Mavi
should carry out a stretching exercise program regularly.  Furthermore, he
should perform postural exercises and upper body strengthening exercises with a
focus on repetition versus resistance. 

Mr. Mavi should consider participation in tai
chi, yoga or Pilates exercises. 

According to today’s assessment, no imaging
studies of the neck or back are warranted.  I do not recommend passive
treatments such as physical modalities, chiropractic spinal adjustments or
massage.

Following the
implementation of the aforementioned recommendations and with the passage of
time, I would expect Mr. Mavi to make a very good or complete recovery.  It is
possible that he will be left with intermittent mild discomfort, stiffness or
pain in his neck or upper back.  Such symptoms may be periodically distracting but
would not be expected to negatively impact on his day-to-day activities. 

I would not
anticipate any long-term exacerbation of symptoms or loss of function beyond
that already experienced.  Furthermore, I do not expect Mr. Mavi to
develop any long-term progressive conditions such as degenerative arthritis in
his neck or back referable to the June 2007 accident. 

I do not foresee
the need for homemaker assistance, special equipment, surgical treatment or
provision of child care pertaining to the subject motor vehicle accident.

[57]    In his viva voce
testimony, Dr. Hirsch added that while he expects a full recovery, it is
possible Mr. Mavi may be left with intermittent pain and discomfort.  It is
also possible, he said, that he may continue to improve to his pre-accident
state.

[58]    Dr. Hirsch also ruled out any
involvement of the prior motor vehicle accidents in the symptoms complained of
by Mr. Mavi and the tenderness Dr. Hirsch found on examination.  Dr. Hirsch
formed that opinion based on his review of the clinical records and, I infer,
his acceptance of the veracity of the history provided by Mr. Mavi and
from his own examination.

[59]    I reject the submission that
the evidence provided by Mr. Mavi and Drs. Beytell and Hirsch demonstrate
that Mr. Mavi was exaggerating his symptoms or failing to provide an honest
account of his injuries and symptoms from the prior motor vehicle accidents or
a boxing incident (that I will describe in a moment).

[60]    For example, a note in a
clinical record dated April 9, 2007 made by a general practitioner at a walk-in
clinic, which predates the motor vehicle accident, reads, in part:  "Neck
hurts.  Sore throat."  Dr. Hirsch explained that the sore neck related to
a throat infection, based upon the medication prescribed –  Amoxil.  Dr. Hirsch
opined that if the sore neck was related to a soft tissue or neck complaint unrelated
to the infection, a different note would have been made and different
medication prescribed.  Mr. Mavi also said his sore neck was related to
his sore throat.

[61]    Counsel for Mr. Booth also suggested
to the medical doctors that a black eye sustained by Mr. Mavi, post-accident,
in July 2008 while engaged in light boxing would account for some of Mr. Mavi’s
complaints.  Mr. Mavi said he suffered the black eye while engaged in some
light boxing without gloves.  He said he moved in such a way so as to
unexpectedly make contact with the other boxer.  He said he was "pretty
sure" his neck did not flex back at all and says he did not suffer a neck
injury when he came in contact with the fist of the other boxer.  Some months
later, in December 2008, the orbit of his eye was still discoloured.  Mr. Mavi
was referred to a specialist, a CT scan was ordered, and nothing of
significance was found save a sinus infection.

[62]    I accept Dr. Hirsch’s opinion
that the injury to the eye could have occurred with little or no neck
movement.  According to Dr. Hirsch, the trauma was in the eye with no evidence of
involvement to the neck.  Dr. Hirsch has seen patients with facial trauma with
no neck complaints or injury.  In Mr. Mavi’s case, Dr. Hirsch said the
possibility of a neck injury, let alone neck flexion or extension, depends upon
what precisely occurred.

[63]    It was also suggested to Dr.
Hirsch, in cross-examination, that Mr. Mavi’s failure to attend upon Dr. Beytell
between April 2008 and March 2009 to complain of neck or back pain meant that
Mr. Mavi was not symptomatic.  Dr. Hirsch did not agree, and instead suggested
Mr. Mavi had plateaued and was following an exercise regime during that time.

[64]    I accept Mr. Mavi’s evidence
concerning his neck and back symptoms.  I found his account to be credible.  I
reject the submission that some of the inconsistencies between his evidence at
trial and his examination for discovery show him to be untruthful or lacking in
credibility.  I accept the explanations he provided in relation to those
inconsistencies, and accept that all of his evidence at trial reflected the
soft-spoken personality and nature of a 25-year-old young man attempting to
provide an honest account of events that occurred since 1997, a period of
approximately 13 years.

Quantum
of Damages

Non-pecuniary
Damages

[65]    I have
reviewed and considered the cases submitted to me by counsel for both parties. 
I have considered the factors set out by Madam Justice Kirkpatrick in the Court
of Appeal’s decision in Stapley v. Hejslet, 2006 BCCA 34, leave to
appeal to S.C.C. ref’d, [2006] S.C.C.A. No. 100, where she said, at para. 46: 

The inexhaustive list of common factors
cited in Boyd that influence an award of non-pecuniary damages
includes: 

(a)        age of the plaintiff; 

(b)        nature of the injury; 

(c)        severity and duration of pain; 

(d)        disability; 

(e)        emotional suffering; and

(f)         loss or impairment of life; 

I would add the following factors, although
they may arguably be subsumed in the above list: 

(g)        impairment of family, marital and
social relationships;

(h)        impairment of physical and mental
abilities;

(i)         loss of lifestyle; and.

(j)         the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL),
2005 BCCA 54.

[66]    In my view, the cases most
closely resembling Mr. Mavi’s circumstances are: Jackmann v. All Season
Labour Supplies Ltd., 2006 BCSC 2053; Myers v. Leng, 2006 BCSC 1582;
and Golam v. Fortier, 2005 BCSC 598 (which is cited in Myers).

[67]    In Jackman, the
plaintiff was injured in a low-impact rear-end collision, with combined damage
to the vehicles being less than $600.  As a result, the plaintiff sustained
soft tissue injuries to her lower back.  The pain was exacerbated by her work,
which required heavy lifting and frequent bending.  The court found the plaintiff’s
injuries to have cleared up within a few months of trial, which was three-years
post-accident, and awarded $40,000 in non-pecuniary damages.  The
inflation-adjusted value for the award meant the award was increased to
$41,721.61.

[68]    In his
reasons for judgment, Mr. Justice Smith said, at para. 17: 

I find that the
plaintiff’s injuries are more serious than the injuries of the plaintiffs in
the last two cases.  In Beick [v. Webb, 2003 BCSC
1251], Mr. Justice Masuhara rejected most of what he found to be an
exaggerated claim, but awarded $30,000 for what he found to be a whiplash
injury that resolved within a year.  If a plaintiff who presents an exaggerated
claim is awarded $30,000 for what is found to be a one-year whiplash, a
plaintiff who forthrightly admits to that sort of injury with some greater
persistence of minor symptoms should be entitled to no less.

[69]    In Myers
v. Leng, the plaintiff suffered injuries in a motor vehicle accident where
a motorcycle’s front tire collided with the back of his vehicle.  The plaintiff
did not immediately feel pain, however within days he attended a physician’s
office where he was diagnosed with neck and shoulder symptoms and reduced
flexion.  Medication and physiotherapy were prescribed.  For the following six months
the pain remained constant, and began to improve after that time.  By one year
post-accident the plaintiff had recovered to the point where the pain was
sporadic, but still present.  At trial, the plaintiff continued to suffer sharp
pains in his neck and shoulder, especially with more strenuous physical tasks. 
Non-pecuniary damages were assessed at $25,000.

[70]    In reference to the plaintiff’s sporadic doctor’s visits, Madam
Justice Gropper said, at para. 50: 

I am not
troubled by the gap in the plaintiff seeking treatment.  His decision not to
continue to see a doctor about his neck and back complaints was clearly based
on a reasonable conclusion that the doctors could only provide temporary relief
from the pain by prescribing medication and physiotherapy.  The plaintiff did
not consider either to be helpful.  It is a sensible and practical approach to
medical treatment.  If continuous medical treatment can cure you, or make you
feel better, then it is worthwhile to attend on a regular basis.  If it cannot,
there really is no point in taking the doctor’s time.  The purpose of a seeing
a doctor is not to create a chronicle of complaints for the purpose of proving
that you have ongoing pain from an injury arising from a motor-vehicle
accident.  Rather than detract from the accuracy of the plaintiff’s complaint,
I consider the plaintiff’s course of conduct, in not seeing the doctor on a
continuous basis, to enhance his evidence.

[71]    I take the same view in this case.

[72]    In Golam v. Fortier, the
court awarded $25,000 for non-pecuniary damages for mild to moderate soft
tissue injury where the plaintiff was able to continue with his daily
activities with ongoing pain.  The plaintiff suffered from the injuries from
the date of the accident until trial, which was a period of two years, and the
judge found that he would continue to do so, although there was no permanent
disability and the pain would eventually resolve.

[73]    Mr. Mavi’s injuries were not as
extensive as Ms. Jackman’s.  Mr. Mavi’s age and injuries place the quantum for
non-pecuniary damages closer to that awarded to Mr. Golam and Mr. Myers.  I
accept that if Mr. Mavi had tried to return to his job lifting heavy glass, he
would be in the same situation as Mr. Myers. Taking into account Mr. Mavi’s age
and the fact that Golam and Myers were handed down in 2005 and
2006, and taking into account the necessity for an upward adjustment for
inflation, I assess non-pecuniary damages at $27,500.

[74]    I wish to comment upon a
submission raised by the defence in argument on behalf of Mr. Booth with
respect to the duration of Mr. Mavi’s injuries.

[75]    In
his report dated June 10, 2009, Dr. Beytell said in part: 

Since August 7,
2008 Mr. Mavi has had no symptoms/complaints with regard to his motor vehicle
accident of June 26, 2007.

[76]    It was argued on behalf of Mr.
Booth that I should accept as a fact that Mr. Mavi had no symptoms from
that point onward, i.e., from August 7, 2008 forward; then, having
accepted that fact, I should, essentially, disregard Dr. Hirsch’s report
as it has no bearing on the case since Dr. Hirsch saw Mr. Mavi after that
date. 

[77]    The
following extract from the deposition transcript of Dr. Hirsch was
referred to me by counsel for Mr. Booth.  It starts at p. 17, L. 23 and
continues to p. 18, L. 4: 

Q         And if there were no
complaints, we assume there were no complaints between August of ‘08 and June
of ‘09 when you see him, there are no complaints during those ten months, it
would be very difficult to relate his complaints, when you see him to the June
‘07 accident?  You’d accept that? 

A          You mean recorded
complaints?  That a doctor sees him and says, do you have any neck pain, upper
back pain, and he would deny that?  Or because it is simply not recorded? 

Q         Let’s work with “no
complaints”. 

A          That is – this is
different.  If somebody doesn’t complain…I have chronic low back pain.  I
don’t complain to anybody anymore.  Nobody listens to me.

Q         Okay. 

A          What I’m saying is you may
have no complaints, but you can have the symptoms. 

Q         Let’s leave out the word
"complaint," then.  If there were no symptoms during those ten months
–

A          If there were no symptoms,
then I would consider it unlikely. 

Q         And so I’m clear, you would
consider it unlikely that the complaints you saw – sorry, the complaints that
were reported to you –

A          – were causally related. 

Q         – were causally related to
the June ‘07 accident? 

A          Yes. 
Difficult.

[78]    I carefully watched and
listened to the questions being put to Dr. Beytell in cross-examination.  This
specific point, raised by counsel for Mr. Booth, was not put to Dr. Beytell,
nor was it put to Mr. Mavi. 

[79]    Counsel for Mr. Mavi submits
that the only proper context in which I may read Dr. Beytell’s comment in his
report is that first, it describes the fact that no complaints were made to him
by Mr. Mavi during that period of time and second, that Dr. Beytell did
not treat Mr. Mavi for his back injuries during that period.  In no way, it is
submitted, does the comment mean that Mr. Mavi did not suffer any symptoms. 

[80]    At its best for the defendant,
Dr. Beytell’s remark is susceptible to confusion.  In my opinion that confusion
is cleared up by a review of Dr. Beytell’s clinical records (which were in
evidence; only some records were put to him), which show no examination or
treatment of Mr. Mavi’s neck or back within that time period.  It would, in my
view, be, in the circumstances, an artifice, to accede to the Mr. Booth’s
submission, especially when the point was not put to the plaintiff or Dr.
Beytell in cross-examination.  Moreover, and as I said earlier, I accept the
credibility of Mr. Mavi’s account of his ongoing injuries and his
symptoms.

Special
Damages

[81]    The plaintiff seeks recovery of
$816.11.  A large component is a WestJet ticket purchased so that Mr. Mavi
could travel to Vancouver from Edmonton for the trial.  That amount is properly
included as a taxable disbursement, which means the award for special damages
is reduced by $314.30 to $501.81.

Cost of Care

[82]    The plaintiff seeks $1,000 for
costs of future care to pay for expenses such as yoga, tai chi, physiotherapy,
or massage therapy.

[83]    In view of Dr. Hirsch’s
recommendations and those made by Dr. Beytell, it may be that massage therapy,
or attending a yoga class or at tai chi, may be of some assistance, as it was
for Mr. Mavi in the past.  There is no evidence to support the specific sum of
$1,000.  In my view an award is warranted in this case.  In view of the lack of
specific evidence, I can only award the nominal sum of $500.

Failure
to Mitigate

[84]    Failure to mitigate was not
argued as a defence in this case.

Summary

[85]    Therefore, in summary, non-pecuniary
damages are assessed at $27,500, special damages at $501.81, and the cost of
future care at $500, for a total of $28,501.81.

[86]    Costs
will be the subject of further submissions.

“P. Walker J.”

__________________________________

The Honourable Mr. Justice Paul Walker