IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Mudry v. Minhas, |
| 2010 BCSC 637 |
Date: 20100505
Docket:
07-4684
Registry: Victoria
Between:
Amanda Mudry
Plaintiff
And
Kirpaljit Kaur Minhas and Amarjit S. Minhas
Defendants
Before: The Honourable Mr. Justice Kelleher
Reasons for Judgment
Counsel for the Plaintiff: | K.D. |
Counsel for the Defendant: | M.J.C. |
Place and Date of Trial: | Victoria, March |
Place and Date of Judgment: | Victoria, May |
[1]
This is an action for damages arising from a
motor vehicle accident. It is brought under Rule 68. The plaintiff alleges
the defendants were at fault and that she suffered injuries as a result.
[2]
The defendants position is that they should not
be found at fault for the accident. In the alternative, they argue that there
was contributory negligence on the part of the plaintiff.
[3]
The defendants say that if any blame attaches to
them, the evidence does not establish that the plaintiff suffered damages as a
result of the collision. In the alternative, any injuries suffered were minor.
The
Accident
[4]
The collision occurred in the early afternoon of
December 30, 2005. It was raining lightly at the time.
[5]
The plaintiff testified that she was driving
west on Fourth Street in Nanaimo. She had left her home and was proceeding to
visit a friend. That portion of Fourth Street where the accident occurred is
on an incline. The plaintiff was driving uphill.
[6]
In front of her was the vehicle owned by the
defendant Kirpaljit Kaur Minhas and driven by the defendant Amarjit S. Minhas.
The defendants vehicle was travelling in the same direction. Ms. Mudrys
evidence is that after that vehicle passed Chesterley, the driver signalled a
right turn and pulled off on to the right shoulder of Fourth Street. She testified
that the vehicle was nearly entirely off the road, on the shoulder. As she
recalled it, the drivers side wheels were on the roadway and the rest of the
car was off the road.
[7]
According to the plaintiff, Mr. Minhas then
pulled into the westbound lane without signalling. He attempted to perform a
U-turn.
[8]
The plaintiff geared down and hit her brakes.
She turned slightly to the left in an attempt to avoid the vehicle but struck
the vehicle with her passenger side front bumper.
[9]
There was not extensive damage to either
vehicle. Both were drivable. The police were not called and did not attend.
[10]
The plaintiff had no recollection of and was
unable to describe the force of the impact in what was essentially a side-swipe
collision.
[11]
The defendant engaged an engineer, Jonathan
Gough, P. Eng., who was qualified as an expert in motor vehicle accident
reconstruction.
[12]
Mr. Gough examined the photographs of the damaged
vehicles and the repair estimate. His analysis led him to conclude:
The disturbance
experienced by the occupants of the Mudry vehicle would have consisted of
jostling in their seats. The accelerations that the vehicles would have
experienced would not have been significantly different from those which could
occur as a result of aggressive driving manoeuvres.
[13]
The defendant has a very different account of
the accident. Mr. Minhas testified that he was driving west on Fourth Street,
returning home from shopping. He realized that he had forgotten something. He
therefore decided to return from whence he came. He decided to turn left, or
south, into the parking area of a fire hall. That way, he could return east on
Fourth Street.
[14]
Mr. Minhas testified that he signalled and
brought his vehicle to a stop, waiting for the eastbound lane to clear. As he
was waiting, his vehicle was struck by the plaintiff.
[15]
Larry Lucas was several hundred metres down the
street when the accident occurred. He testified that he is not sure whether he
saw the accident or simply heard the collision. He proceeded to the area of
the collision and ensured that everyone was all right. His evidence as to the
events leading to the accident is not helpful.
[16]
I conclude that the accident occurred in the
manner described by the plaintiff. I come to that conclusion for two reasons.
First, Mr. Minhass evidence is inconsistent. In a statement to the Insurance
Corporation of British Columbia, the defendant stated that he had not started
his turn when he was hit from behind by another vehicle. At the trial, the
defendant testified that he was likely on an angle across the westbound lane
when the collision occurred. That would explain the fact that the damage was
to the side of his vehicle. That is an important inconsistency and affects his
credibility. Second, and related to this, is the objective evidence of the
damage to the vehicles. The fact the damage to the defendants vehicle was to
the left rear by the tire-well and the plaintiffs vehicle was damaged in the
passenger side right front bumper, are far more consistent with the plaintiffs
version of what occurred. Finally, it is noteworthy that in the statement the
defendant made to ICBC, he claimed that he was struck from behind.
[17]
I conclude that the defendants were 100% at
fault for the accident.
The
Plaintiffs Background
[18]
Ms. Mudry grew up on a horse-breeding ranch
outside Saskatoon. After completing high school, she applied for and was
admitted to the Arts One program at Malaspina College (now Vancouver
Island University). She moved to Nanaimo in the fall of 2002 to attend this
school.
[19]
Ms. Mudry appears to have been a successful,
enthusiastic, and active student. The Arts One program focuses on First
Nations topics. She was an active student in this program.
[20]
In the summer of 2003, she worked for
Saskatchewan Government Insurance. Then in her second year she was again
active, representing aboriginal students in the student union, and taking part
in fund raising. She obtained good marks in her courses.
[21]
In the fall of 2005, she was in her fourth
year. In mid-December, a long relationship came to an end, and Ms. Mudry began
to live on her own. At the end of December she returned to Nanaimo from
Saskatoon where she had spent the Christmas vacation. Her plan was to graduate
and apply to law school. The accident happened shortly after her flight
arrived in Nanaimo.
The
Plaintiffs Condition
[22]
While the plaintiff had a clear recollection of
the events leading up to and including the collision, she has no recollection
of what happened when the vehicles collided. There is no evidence, for
example, that she struck her head or injured her neck. No ambulance was
called. As will be seen, the plaintiff did not seek medical help for an
extensive period of time. After the accident, Ms. Mudry visited a
friend. She testified that she then returned to her home, and friends came over.
She felt nauseous and began vomiting.
[23]
The plaintiffs evidence is that in the period
following the accident, she experienced horrible headaches. She was
sensitive to noise and light.
[24]
The plaintiffs friend, Ashley Heyland,
corroborated her evidence that she was not well. Ms. Heyland said that she
knew Ms. Mudry was upset by the accident, but did not think at the time that
the illness was related to the accident.
[25]
The plaintiff testified that she mainly stayed
home from school for the first two weeks of January. She said that she
attended once or twice but was not able to attend on a regular basis.
[26]
Melissa Matheson is a close friend of the
plaintiff. She saw her a week after the accident, and testified that the
plaintiff was constantly complaining of headaches.
[27]
The plaintiffs vehicle belonged to her mother
and was registered in Saskatchewan. On January 11, 2006, 12 days
after the accident, she met with Barrie Page. Mr. Page is an adjuster who
was investigating the accident on behalf of Saskatchewan Government Insurance.
He interviewed her and prepared a detailed written statement. The statement
included this: The police were not called. I was not injured.
[28]
Mr. Pages evidence is that he drafts the
statement in his own handwriting and has the client review it. He then later
sends it to the client for signature.
[29]
Ms. Mudry was shown this statement in
cross-examination. Her reaction was that the statement was sloppy and
inaccurate. She pointed to the misspelling of her middle name. She testified
that when Mr. Page asked her if she were injured, she would have said
yes. But she later agreed the statement to the adjuster was what she would
have said to him. That is because it was not until February or March that
she linked her symptoms to the accident.
[30]
On January 24, 2006, the plaintiff noticed
blood in her vomit. She attended at the emergency ward of Nanaimo Regional
General Hospital. The hospital records record her presenting complaints.
Dr. Orla MacSweeney, the emergency physician who saw her that night, testified
that her notes made at the time say that the plaintiffs complaints were:
Nausea and
vomiting for three weeks. States has been vomiting dark red blood for two days.
Complains of back pain and rib pain for two weeks. States fever and rigors.
[31]
Dr. MacSweeney treated Ms. Mudry. She testified
that Ms. Mudry made no complaint of headache, migraine, head pain, neck
pain or shoulder pain. No mention was made of a motor vehicle accident.
[32]
Ms. Mudry testified she received intravenous
therapy to rehydrate her. Tests for mononucleosis proved negative. After this
visit, Ms. Mudry testified, her pain and headaches persisted. She saw her
family physician for the first time on February 17. He gave her some
medication for migraine. She saw him again on February 21. He suggested
perhaps her wisdom teeth were the source of her difficulties. Ms. Mudry
made an appointment with an oral surgeon on February 19, and had her wisdom
teeth extracted on February 24. This did not stop the headaches.
[33]
When the plaintiff saw her family doctor,
Dr. Rogers, on February 17, 49 days had passed since the
accident. She complained of headaches or migraines for at least the last
three weeks. It had been just over three weeks since her visit to the
emergency department where there had been no complaints of headache.
[34]
Allison Anderson is a faculty member at
Vancouver Island University. She said that Ms. Mudry was a first class
student and as well played a leadership role in organizing events in the years
preceding the accident. In the months following the accident, on the other
hand, the plaintiffs work deteriorated. She did not seem the same person.
[35]
The plaintiffs evidence is that her
difficulties have persisted. Her graduation was delayed for several months
because she had to drop some courses. Then in late 2006, she began working in
Old Crow, Yukon. In early 2007, she moved to Whitehorse, and in June of that
year began working at the Council of Yukon First Nations as an administrative
assistant. She remained there until January 2009, when she obtained a
position with the Yukon government. Ms. Mudry currently lives and works
in Whitehorse.
Causation
[36]
The key question in this case is whether the
symptoms experienced by the plaintiff were caused by the motor vehicle
accident.
[37]
Dr. James Filbey, a physiatrist, examined the
plaintiff at her counsels request. He wrote a report dated March 17, 2008.
His diagnoses were as follows:
Amanda Mudry
presents with a complex migraine headache diagnoses [sic] with secondary
myofascial/muscular pain. The pattern is one of hemisensory dysfunction on the
right. An MRI scan of the brain is pending.
[38]
Dr. Filbey said this with respect to the cause
of her symptoms:
There is no
indication that she had suffered such headaches prior to the accident. It
appears as though the MVA is responsible/causative of her ongoing symptoms.
[39]
Dr. Filbey provided an updated report in January
2010. The wording regarding causation is almost the same:
There is no
indication that she had suffered such headaches prior to the MVA. It appears
as though the MVA is responsible/causative of her ongoing symptoms (headaches
and muscular pains).
[40]
Dr. Filbeys choice of words indicates that his
conclusion is somewhat tentative. He confirmed in cross-examination that this
was the case:
Q Sir, Ive – Ive read – I am
just editorializing. Ive read tens – not hundreds – but tens – probably in
excess of 50 of reports that youve – that youve authored in personal injury
litigation. And in your report the language you use with respect to causation
of this womans complaints are, Im going to suggest to you, um, youre
stretching to find a cause. Did you have that in your – did you have that
feeling in your gut when you were preparing these reports?
A So I – yah. Because I
think, you know, if I could look at my wording here again. So in the first one
– where are we? I agree. I put under discussion on page 4 in the first
exhibit – I put there is no indication that she had suffered headaches prior to
the MVA. I put it appears as though the MVA is responsible/causative of her
symptoms.
Q Thats not as definitive as
usual is it?
A. Absolutely.
No. Absolutely.
[41]
Dr. Filbey went on to say:
A …I will often use
different wording than that. And in this case, um, I would say that it is
definitely possible in this instance that there are other things that could be
associated with her headaches. Um, I would say my opinion though is that its
more likely than not that it is related to the car accident. Um, but whereas
my wording in other reports would be more concrete, if you will.
Q. Yes.
A. What
I am saying there is that I would put that at a very high more likely than not;
75, 80, 90 percent. Okay. In this case, Im putting this right at the 51
percent level.
[42]
Dr. Filbeys opinion, then, is that his level of
confidence in his conclusion is at the very minimum. He thought it barely more
likely than not that the accident caused the injury. And, in forming that
opinion, he was not aware that the plaintiff had told the adjuster 12 days
after the accident that she had not been injured in the accident.
Dr. Filbey was not aware that the plaintiff did not complain of headaches
when she attended at Nanaimo Regional Hospital on January 26, or that that was
the first time she sought medical attention after the accident or that she did
not mention the motor vehicle accident in that visit.
[43]
In assessing causation, an accurate medical and
factual history is critical. The absence of an accurate history means that an
expert opinion will be of limited assistance: Butterfield v. Choufour,
2005 BCSC 179 at para. 18.
[44]
My conclusion is that there is nothing more than
a general temporal link between some of the plaintiffs complaints and the
accident. There is less of a temporal link if one has regard to the fact that
she did not report headaches when she attended at Nanaimo Regional Hospital and
that she did not in her visit to her physician in February say that headaches
started any sooner than three weeks earlier.
[45]
In White v. Stonestreet, 2006 BCSC 801, Ehrcke
J. discussed the possible fallacy in drawing an inference from a temporal link:
[74] The inference from a temporal
sequence to a causal connection, however, is not always reliable. In
fact, this form of reasoning so often results in false conclusions that
logicians have given it a Latin name. It is sometimes referred to as the
fallacy of post hoc ergo propter hoc: after this therefore
because of this.
[75] In
searching for causes, a temporal connection is sometimes the only thing to go
on. But if a mere temporal connection is going to form the basis for a
conclusion about the cause of an event, then it is important to examine that
temporal connection carefully. Just how close are the events in
time? Were there other events happening around the same time, or even
closer in time, that would provide an alternate, and more accurate, explanation
of the true cause?
[46]
The test for causation was described by Major J.
in Athey v. Leonati, [1996] 3 S.C.R. 458:
13. Causation is established where the
plaintiff proves to the civil standard on a balance of probabilities that the
defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2
S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R.
1008 (H.L.).
14. The general, but not conclusive,
test for causation is the "but for" test, which requires the
plaintiff to show that the injury would not have occurred but for the
negligence of the defendant: Horsley v. MacLaren, [1972]
S.C.R. 441.
15. The "but for" test is
unworkable in some circumstances, so the courts have recognized that causation
is established where the defendant’s negligence "materially contributed"
to the occurrence of the injury: Myers v. Peel County Board of Education;
[1981] 2
S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All
E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing
factor is material if it falls outside the de minimis range: Bonnington
Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30
B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2
S.C.R. 979.
16. In Snell v. Farrell, supra,
this Court recently confirmed that the plaintiff must prove that the
defendant’s tortious conduct caused or contributed to the plaintiff’s injury.
The causation test is not to be applied too rigidly. Causation need not be
determined by scientific precision; as Lord Salmon stated in Alphacell Ltd.
v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka
J. at p. 328, it is "essentially a practical question of fact which can
best be answered by ordinary common sense". Although the burden of proof
remains with the plaintiff, in some circumstances an inference of causation may
be drawn from the evidence without positive scientific proof.
17. It is
not now necessary, nor has it ever been, for the plaintiff to establish that
the defendant’s negligence was the sole cause of the injury. There will
frequently be a myriad of other background events which were necessary
preconditions to the injury occurring. To borrow an example from Professor
Fleming (The Law of Torts (8th ed. 1992) at p. 193), a "fire
ignited in a wastepaper basket is . . . caused not only by the dropping of a
lighted match, but also by the presence of combustible material and oxygen, a
failure of the cleaner to empty the basket and so forth". As long as a defendant
is part of the cause of an injury, the defendant is liable, even though
his act alone was not enough to create the injury. There is no basis for a
reduction of liability because of the existence of other preconditions:
defendants remain liable for all injuries caused or contributed to by their
negligence.
[47]
McLachlin C.J.C. noted in Resurfice Corp. v.
Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333:
23. The
but for test recognizes that compensation for negligent conduct should only
be made where a substantial connection between the injury and the defendants
conduct is present. It ensures that a defendant will not be held liable for
the plaintiffs injuries when they may very well be due to factors unconnected
to the defendant and not the fault of anyone: Snell v. Farrell at p. 327
per Sopinka J.
[48]
The plaintiff did not recall hitting or twisting
her head or neck at the time of impact. She cannot recall whether her body
moved on impact. The damage to the vehicles involved in the accident was
minor, and no emergency services were required. Twelve days after the
accident, the plaintiff herself held the opinion that she had suffered no
injuries as a result of the collision.
[49]
Causation does not need to be established with
scientific precision. While the plaintiff does not have to show that the motor
vehicle accident was the only cause, she does bear the burden of establishing
on the balance of probabilities that it was a cause of her loss.
[50]
The evidence considered as a whole does not
establish any causal connection between the motor vehicle accident and the
plaintiffs symptoms. The plaintiffs action is therefore dismissed.
Mr.
Justice Kelleher