IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100614

Docket: M120669

Registry:
New Westminster

Between:

Leena Chandra

Plaintiff

And

Xiao Chen

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
This is an action brought by the plaintiff for damages for personal
injuries suffered in a motor vehicle accident on August 12, 2007 at the
intersection of Salisbury Drive and Kingsway in Burnaby, British Columbia.

[2]            
The dynamics of the accident involved a collision in which a motor
vehicle driven by the defendant struck a vehicle driven by another person,
which in turn struck the plaintiff’s vehicle. Liability has been admitted by
the defendant.

[3]            
The plaintiff was treated on August 13, 2007 for complaints of pain on
the left shoulder, arm and lower back. Her pain increased when she turned her
neck. Her family physician Dr. Vinod Tawar noted “palpable tenderness on the
bilateral neck and shoulders (left more severe than right). In addition there
was tenderness in the lower back region bilaterally.  A range of motion study
demonstrated right lateral rotation of the neck being 30% of normal and hip
flexion 80%.” He diagnosed “musculo-ligamentous injury” and prescribed ice,
stretching exercises, chiropractic treatment and medication for pain relief.

[4]            
The plaintiff returned to her doctor on August 17, 2007 for “pain in the
left arm, bilateral para-cervical and lumbar regions”. She seemed to be
improving slowly through October, but on November 8, 2007, she presented with
increased severity of left-sided neck, shoulder, arm, and right knee pain. She said
she was having difficulty with heavy lifting at work. The doctor noted “there
was a palpable tenderness on the left neck, shoulder, and right knee. A range
of motion study of the neck and left arm was 50 – 60% of normal and right knee
flexion was 80% of normal”. He suggested physiotherapy and medication for the
pain.

[5]            
Dr. Tawar next saw the plaintiff on January 8, 2008. She had pain in the
left arm and knee. On January 23, 2008 she reported left shoulder pain
exacerbated by exertion at work. The plaintiff began to complain of right knee
pain on March 18, 2008, and again on April 24, 2008. She continued thereafter
to complain of pain in her knees and shoulder associated with heavy lifting at
work. She was encouraged to continue her ongoing treatments.

[6]            
On January 8, 2010 the plaintiff attended Dr. Pankaj Dhawan, a
specialist in physical medicine and rehabilitation. Dr. Dhawan made the
following observations:

9.   In this accident, she was rear-ended while being stopped
in traffic. Her head was turned up looking in the rear-view mirror. She was
tensed up anticipating an impact and she was hit by a van, which was in fact
rear-ended by a BMW. There was only a few hundred dollars worth of damage to the
rear end of her Mazda. She was not symptomatic at the time, but the next day
she went to her doctor with neck, left shoulder and low back pain. I agree with
Dr. Tawar, her family doctor’s assessment that she had soft tissue injuries. In
my opinion, she suffered cervical and lumbar sprain without any bony discogenic
or neurological injury, and these injuries are resolved by the time she sees
me. There is no evidence to suggest ongoing impairment. In the first few
months, these injuries resolved with passage of time, massage and chiropractic
care. However, she has continued to have lingering left shoulder symptoms of
pain and there are findings of left bicipital short and long head tendonitis,
which I feel is related to this accident. This impairment is still present.
Left anterior shoulder is tender. She has weakness on lifting in the left arm
at work and she has trouble doing heavy household chores, lifting and her
husband has to help her with that. This impairment is still unresolved, despite
taking physiotherapy, rehab program and kinesiology treatments. She will, in my
opinion, require local anesthetic and steroid injections to this area – one, at
the most two injections three months apart, will resolve this impairment and
she should recover completely. I do not believe there will be any permanent
sequelae like development of arthritis or need for surgery. She did not develop
any mood or sleep disorder. She has required painkillers and anti-inflammatory
medications off and on, but she only will require them till the shoulder
impairment is resolved. She does not require any further physio or rehab
program, or chiropractic care. She will be well advised to carry on exercising
on her own. She should be able to continue working at Superstore. No surgery
will be required for these impairments.

10.   She also had soft tissue
injury to the distal dorsal forearm, without evidence of any neurological or
bony injury. That area could be treated with a topical anti-inflammatory
application like Diclofenac and should resolve in a few weeks’ time. As a last
resort, a cortisone injection may be necessary. Then, it should resolve.

[7]            
The plaintiff came to Canada from Kenya at the age of 19. She has a
grade 12 education. She is 37 years old. She has worked at a Great Canadian Superstore
for 17 years and has attained a level where she has some supervisory
responsibilities. Between 1992 and 2006 she also worked for varying amounts of
time at a fast food restaurant.

[8]            
In the aftermath of the accident the plaintiff says she developed stiffness
and soreness which got worse overnight. She said her neck improved in the two
months after the accident.

[9]            
The plaintiff says she developed pain in the muscles in the upper half
of her left arm with swelling and numbness in her left hand. She says this went
on while she was taking physiotherapy in 2007. She associates this pain with
the resumption of her regular duties and the amount of lifting it entails. In August
of 2008, a year after the accident she described her pain as discomfort when
she lifted things. She said she would feel a “pull”, which has since abated.
The knee problem was only occasional. She said she found her arm and shoulder
painful when she used a hair dryer or brushed her hair.

[10]        
The plaintiff described a number of ways she found it painful to carry
on at work. There is considerable lifting associated with placing items on
shelves and taking them off. She said she cannot really adjust her work to do
lighter things. Despite these difficulties, she has not suffered lost time from
work.

[11]        
The plaintiff had a modest past history of occasional back and neck
stiffness, but nothing particularly telling or relevant. She says she finds the
more vigorous kinds of housework difficult.

[12]        
In cross-examination the plaintiff acknowledged that she did not miss
any work due to her injuries but that she missed some time for treatment. She
acknowledged that she did not initially complain of knee pain. Her salary has
increased since the accident and she is a respected employee. She says she
likes working, there and that she has no plans to leave her job.

[13]        
The plaintiff called Emmanuel Sura, a friend who also worked at the
Superstore from November of 2006 to September of 2008. He described the
plaintiff before the accident as hardworking and capable of heavy lifting on
her own. He said that after the accident she needed help, and did not generally
lift heavy objects, but got others to do it.

[14]        
The plaintiff called Evangeline Edwards, another co-worker. The
plaintiff is her supervisor. She also said that the plaintiff needed help after
the accident, for work she had been able to do unassisted before. She
acknowledged that her own shifts are shorter than the plaintiff’s and that she
saw her for only parts of some days.

[15]        
The plaintiff contends that she has suffered injuries in the August 2007
accident that continue to this day. In addition to compensation for pain and
suffering for loss of enjoyment of life she seeks damages calculated as loss of
a capital asset to compensate for the possibility that her ongoing disability,
particularly the harm to her arm, has impaired her future income earning
capacity. There is no claim for past income loss. There is also a claim for
special damages related to therapy and travel to therapy in the amount of
$856.13.

[16]        
The defendant submits that the claim is modest, if there is a claim at
all. While acknowledging liability for the accident, the defendant maintains that
the collision was slight – the damage to the vehicle exclusive of labour was
under $100 – and that over time symptoms not present in the early aftermath of
the accident have taken on significance in the plaintiff’s claim. The defendant
submits that the swelling in the arm the plaintiff complains of was not noted
until fourteen months after the accident, and was directly linked, in the
clinical records, to exertion at work.

[17]        
The plaintiff submits that her injuries, including the later swelling in
her arm, all relate to the motor vehicle accident, and that the proper
understanding of what has occurred is that, although she has worked through her
pain to date, the evidence supports a claim for damages, not only for pain and
suffering and loss of enjoyment of life, but also for loss of future income
earning capacity.

[18]        
The defendant prefaced his remarks by quoting from Price v. Kostryba (1982),
70 B.C.L.R. 397 (B.C.S.C.), per McEachern C.J.S.C., at paras. 5-7:

5 In Butler v. Blaylock, [1981] B.C.J. No.
31, decided 7th October
1981, Vancouver No. B781505, I referred to counsel’s argument that a defendant
is often at the mercy of a plaintiff in actions for damages for personal
injuries because complaints of pain cannot easily be disproved. I then said:

6 I am not stating any new principle when I say
that the court should be exceedingly careful when there is little or no
objective evidence of continuing injury and when complaints of pain persist for
long periods extending beyond the normal or usual recovery.

7 An injured person is
entitled to be fully and properly compensated for any injury or disability
caused by a wrongdoer. But no one can expect his fellow citizen or citizens to
compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that
his complaints of pain are true reflections of a continuing injury.

[19]        
The defendant submits that the plaintiff did not suffer an injury in the
accident which was so slight that the other driver involved in the accident,
Nitin Chandra, could not even recall an impact to the front of his vehicle as a
result of the collision caused by the defendant.

[20]        
The defendant submits that variations in the plaintiff’s descriptions of
her injuries since the accident should cause the court to doubt the credibility
of her ongoing complaints. She did not apparently report knee pain to Dr. Tawar
or to ICBC in the early days following the accident, nor did she mention it on
Examination for Discovery. The swelling in her arm came up over a year after
the accident.

[21]        
It is often difficult to assess injuries where the mechanism of injury
is not obvious – as is often the case in low damage accidents – and there is
little other than the plaintiff’s own evidence to support a claim of ongoing
pain. Because “credibility” is crucial, much is often made of inconsistencies
in medical records that ostensibly record the impressions of physicians of the
plaintiff’s remarks under circumstances that are themselves difficult to
assess. The court is often left with making what it can of the impression given
by the plaintiff in the witness box.

[22]        
The plaintiff did not appear to be exaggerating. She gave her evidence
in a straightforward manner. I accept that she suffered some pain associated
with the accident and I accept that she is sincere in her effort to recall the
pain she has suffered since that time. To the extent that she has been
unspecific, and at times somewhat inconsistent, I do not think she has been
motivated to mislead. I think her attempt to recall all of the pain she
attributes to the accident somewhat at odds with her actual experience, which
appears to have been of some aches and pains that would come and go over time.
I also think that the stresses of a physical occupation have at times been
assigned to the accident when they have actually arisen independently. I do not
think that the injuries, about which there was no complaint in the early
aftermath of the accident can be reliably – that is on a balance of
probabilities – traced back to the injuries suffered at that time, or to
weaknesses which have developed since, as a result of those injuries.

[23]        
On the plaintiff’s evidence it would be difficult to relate the left arm
weakness to anything specifically arising in the accident. The independent report
of Dr. Dhawan, however, appears to suggest a connection between the left
shoulder complaint, which has been present since the accident, and the arm
complaint that has been asserted as the plaintiff’s most serious recent
problem. Dr. Dhawan suggested that with topical anti-inflammatories and, as a
last resort, a cortisone injection, her “soft tissue injury to the distal
dorsal forearm” – his description of the plaintiff’s ongoing complaint – the
plaintiff’s difficulties should resolve.

[24]        
It appears that the petitioner suffered some minor injuries in the motor
vehicle accident which have merged into a continuum with stresses that have
arisen at work. There is no adequate explanation as to how a left shoulder
injury, which could conceivably lead to weakness, or a perception of weakness
on the left side, could lead to the specific injury to the forearm noted
by Dr. Dhawan. It is not clear in Dr. Tawar’s reports whether he is always
addressing the same thing when he speaks of left shoulder pain in
the earlier phases of the plaintiff’s treatment, and left arm
pain later. There is a period when complaints of left shoulder pain related to
exertion at work (August 29, 2008), seem to coincide or alternate with
descriptions such as left arm pain and edema related to increased levels of
work (October 26, 2008). On November 17, 2008 pain in the left shoulder is
attributed to work exertion; on April 25, 2009, the plaintiff complained of
neck pain and headaches related to work. On August 25, 2009, the plaintiff
complained of left arm pain, particularly of a swollen forearm as a result of a
great deal of lifting of heavy objects at work.

[25]        
It is not at all clear that there is a connection between the more
recent forearm complaints and the left shoulder complaints arising out of the
accident. There appear to have been a number of work related stresses that may
have constituted a new cause for the most recent manifestations of pain.
Bearing in mind the nature of the accident itself, and placing the injuries
caused by it in the context of the plaintiff’s work requirements, I accept that
she suffered minor injuries in the accident, symptoms of which persisted for
some time, and may perhaps have been aggravated by her activities at work.
These activities appear, however, independent of any susceptibility arising from
the accident, to have caused the plaintiff pain and discomfort. I am of the
view that the appearance of a “continuum” in the medical records is really a
kind of overlap and that any lingering symptoms due to the accident itself are remote
component of the plaintiff’s present complaints.

[26]        
Those complaints, it must be remembered, are not enough to keep the
plaintiff from working, although she says she makes adjustments, and there is
reason to believe that with more aggressive treatment they will resolve.

[27]        
This leaves a claim for pain and suffering and loss of enjoyment of life
I qualify at $20,000, taking account of the nature of the injury and the
consequences which can fairly be attributed to it including some lingering
effects after other causes had also contributed to the plaintiff’s pain and
suffering.

[28]        
I do not think any claim has been made out for damages for loss of
income earning capacity assessed as a capital asset. In order for there to be a
foundation for such damages, there must be a finding of a “substantial
possibility of a future event leading to an income loss” (see: Perren v.
Lalari, 2010 BCCA 140). I have found that the plaintiff has suffered
injuries that have been overlaid by other stresses related to work. These have
not been shown to relate to the injuries arising from the accident in the sense
that they specifically aggravated those injuries, or that they arise because of
conditions created by those injuries. There is, in any event reason to believe
that a relatively short term resolution of the petitioner’s symptoms may be at
hand. Lastly, the petitioner has been able to carry on at work through the more
acute phase of the injuries properly attributable to the accident, and there is
no reason to believe that her ability to perform strenuous occupations is apt
to be impaired in future as a result of the injuries suffered in the accident,
directly or indirectly. There will therefore be no assessment for damages for
loss of capacity.

[29]        
The plaintiff is entitled to the special damages claimed, and to costs
unless, there are circumstances of which I am presently unaware that the
parties wish to draw to my attention.

“McEwan J.”

________________________________

The Honourable
Mr. Justice McEwan