IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100810

Docket: M090334

Registry:
Vancouver

Between:

Jodi Evelyn Jones

Plaintiff

And

Chun Wa Ma and Kin
Shu Chau

Defendants

Before: The Honourable Mr. Justice
Ehrcke

Reasons for Judgment

Introduction

[1]            
The motor vehicle accident that is the subject of this personal injury
action occurred at about 11:45 a.m. on December 18, 2007 in the 2500 block of
Clarke Street in Port Moody, British Columbia. At that location, Clarke Street
has two westbound lanes of traffic separated from the single eastbound lane by
a double solid yellow line.

[2]            
Just prior to the accident, the plaintiff, Jodi Evelyn Jones, was
driving her Pontiac Montana in the left-most westbound land. Ahead of her in
the same lane, the defendant, Chun Wah Ma, was driving a Honda CRV, owned by
her husband, the defendant Kin Shu Chau. There was a collision, and the
plaintiff was injured. She now claims damages for those injuries. Both
liability and the assessment of damages are in issue. The claim against Kin Shu
Chau is based solely on vicarious liability under s. 86 of the Motor
Vehicle Act, R.S.B.C. 1996, c.318, as his wife was driving his vehicle with
his consent. It is agreed by all parties that Mr. Chau is vicariously
liable for any damages caused by Ms. Ma.

Liability

[3]            
Ms. Jones testified that she left home that morning and was on her
way to Simon Fraser University to work as an actor on a film. From Moody Street
she turned westbound onto Clarke Street. As she approached the intersection of
Clarke Street and Mary Street, she noticed the defendant Ma’s vehicle. Both
vehicles were traveling in the left westbound lane. Ms. Ma veered right
without signalling and then suddenly braked while straddling the two westbound
lanes. Ms. Jones testified that she kept driving, thinking that the Ma
vehicle was vacating her lane. Ms. Ma then turned left without signalling.
Ms. Jones applied her brakes and turned left to try to avoid a collision,
but she slid, and the right front corner of her vehicle collided with the left
rear door area of Ms. Ma’s vehicle. Ms. Ma’s vehicle spun 180 degrees
and came to rest in the centre westbound lane. Ms. Jones’ vehicle came to
rest in the eastbound lane.

[4]            
In cross-examination, it was put to Ms. Jones that she caused the
accident by following Ms. Ma’s vehicle too closely. She disagreed, and
testified: “I felt that when I put on the brakes and I was close enough to the
vehicle, that I still would have missed her; it was the left hand turn she made
that caused the collision…. I felt I had enough room to stop.”

[5]            
Ms. Jones got out of her vehicle and approached Ms. Ma. After
inquiring into Ms. Ma’s condition, Ms. Jones called 911. There was
extensive damage to both vehicles, and neither vehicle could be driven from the
scene. Ms. Ma exited her vehicle from the front passenger door, as the
doors on the left would not open.

[6]            
While waiting for the police to arrive, the two women had a
conversation, part of which was recorded by Ms. Jones on her cell phone. In
that conversation, Ms. Ma said that she was trying to turn left and had
not seen the double yellow line. She said, “I caused the accident.”  She said
she had turned several times around the area trying to find a place to park,
“because I, I’m on time to, to have a meeting in the office and yeah, my
supervisor is over there.”  She said she was lost and not familiar with the
place.

[7]            
On December 19, 2007, Ms. Jones gave a statement to ICBC. She said:

There was a vehicle in front of
me… travelling about the same speed as I was, about 30 km/h. It was raining
and slick out. We were the only vehicles on the road at that time, there was
about 2 car lengths between the 2 of us. All of a sudden the lady in front of
me slammed on her brakes and started to do a U turn over a double yellow line. I
slammed on my brakes and tried to avoid hitting her turning to the left but was
unable to avoid the collision. My vehicle’s front passenger corner rammed into
her rear driver’s door panel, over her wheel.

[8]            
In that statement, Ms. Jones did not mention Ms. Ma veering
right before turning left. Ms. Jones explained in her trial testimony that
she was not satisfied with the way the ICBC agent had written the statement
down, but the agent was impatient and required her to sign it.

[9]            
Ms. Ma testified at trial that she had been driving westbound on
Clarke Street on her way to a meeting at 11:45 a.m. It was raining, and her
headlights were on. The parking lots were full, so she went around the block a
few times. While driving westbound, she decided to go back in the other
direction on Clarke. She saw what looked like a driveway on the left side of
the street, and she thought she would drive into that driveway, back out, and
then go eastbound. She put on her brakes and went very slow. She then turned
left, without noticing whether there was a vehicle behind her. The collision
occurred, and her car spun around 180 degrees. She said she had no idea where
the other car came from.

[10]        
With respect to the conversation she had with Ms. Jones at the
scene, Ms. Ma testified that said she does not speak English well, she was
confused, and her statement to Ms. Jones was not accurate. She testified
that she was not lost, and does not know why she said that to Ms. Jones. She
testified that the reason she said the accident was her fault was because she
mistakenly thought that she had hit Ms. Jones’ vehicle.

[11]        
Counsel for the plaintiff submits that the accident was caused entirely
by the negligent driving of Ms. Ma. The plaintiff submits that Ms. Ma
should not have been trying to make a U-turn by crossing a double yellow line. The
plaintiff also relies on Ms. Ma’s statement at the scene that the accident
was her fault.

[12]        
Counsel for the defendants on the other hand submits that the accident
was caused entirely by Ms. Jones, or at least that she was contributorily
negligent by following too close behind Ms. Ma to stop in time to avoid a
collision.

[13]        
I do not place a great deal of weight on Ms. Ma’s statement at the
scene that the accident was her fault. I accept her explanation that she was
shaken up and did not really appreciate how the accident had happened when she
made that statement.

[14]        
On the other hand, the fact that Ms. Jones’ ICBC statement does not
mention Ms. Ma veering right does not, in my view, detract from Ms. Jones’
trial testimony. The ICBC statement was not written by Ms. Jones herself,
but rather by the ICBC agent, who was clearly paraphrasing what Ms. Jones
had told her. Ms. Jones told the agent she was not satisfied with the
statement, but the agent asked her to sign it anyway. In these circumstances,
the ICBC statement does not constitute a previous inconsistent statement of the
sort that would detract from the credibility of Ms. Jones’ trial
testimony.

[15]        
Considering the evidence as a whole, I am satisfied that the collision
occurred essentially in the manner described by the plaintiff, that is, that Ms. Jones
was following about two car lengths behind Ms. Ma in the left westbound
lane; that Ms. Ma veered right, leading Ms. Jones to believe that she
was vacating the left lane; that Ms. Ma braked and then turned left
suddenly without signalling, crossing into the path of Ms. Jones’ vehicle.
I am satisfied that it was Ms. Ma’s manoeuvre of turning left into the
path of Ms. Jones’ vehicle without signalling that was the cause of the
collision. I accept Ms. Jones’ assessment of the situation, that she would
not have collided with Ms. Ma’s vehicle if Ms. Ma had not turned left
without warning.

[16]        
Ms. Ma’s conduct breached her duty of care to other drivers on the
highway, and in particular, to Ms. Jones, by failing to conform to the
required standard of care. By turning left into the path of Ms. Jones’
vehicle without signalling, and without first checking to see what vehicles
were behind her before turning, Ms. Ma was in breach of ss. 144(1)
and 170 of the Motor Vehicle Act. Those sections provide:

144 (1) A person must not drive a motor
vehicle on a highway

(a) without due care and
attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is
excessive relative to the road, traffic, visibility or weather conditions.

…

170  (1) If traffic may be affected by turning a vehicle, a
person must not turn it without giving the appropriate signal under sections
171 and 172.

 (2) If a signal of intention to turn right or left is
required, a driver must give it continuously for sufficient distance before
making the turn to warn traffic.

 (3) If there is an
opportunity to give a signal, a driver must not stop or suddenly decrease the
speed of a vehicle without first giving the appropriate signal under sections
171 and 172.

[17]        
On the facts as I have found them, I am satisfied that the accident was
caused solely by Ms. Ma’s negligence. I do not find Ms. Jones to be
contributorily negligent. Ms. Jones was travelling below the speed limit,
at a reasonable distance behind Ms. Ma’s vehicle. From Ms. Ma’s
actions, she reasonably believed Ms. Ma was vacating her lane of travel. When
Ms. Ma suddenly braked and turned left without signalling, Ms. Jones
took all reasonable evasive action. I find the defendants to be 100%
responsible for the accident and liable to Ms. Jones in damages.

Damages

[18]        
Ms. Jones was 39 years-old at the time of the collision. She is now
41. She is a single mother of three children. She testified that she was
healthy prior to the collision except for occasional sports-related injuries.
She said she had played sports all her life and participated in a number of
organized teams up until 2007. From that time on she continued to be active, by
cycling, swimming and playing tennis. She was also playing women’s league
recreational soccer, to the extent that her schedule permitted.

[19]        
Ms. Jones was working at three part-time jobs before the accident. She
worked as an on-call substitute special education teaching assistant for the
Coquitlam School Board, she managed a refreshment kiosk at GM Place during
events, and she worked as a background actor for film and television. All of
her jobs had components which to varying degrees were physically demanding.

[20]        
The day after the accident, Ms. Jones attended Burnaby Square
Medical Doctors Clinic. Her usual physician, Dr. Petrovic, was not
available that day, so she saw Dr. Younan. She complained of a sore right
ankle, right wrist, left neck, left shoulder, and right lumbar pain with
stiffness. He diagnosed soft tissue injuries and prescribed a muscle
relaxant.

[21]        
Ms. Jones next attended the clinic on January 7, 2008, and saw Dr. Petrovic,
to whom she complained of intensifying pain to the same areas, as well as
headaches. She had full range of motion, and Dr. Petrovic felt she was
recovering from her soft tissue injuries. Dr. Petrovic advised her to
attend massage therapy and to do stretching exercises.  Ms. Jones attended
approximately 12 sessions of massage therapy.

[22]        
When Ms. Jones next saw Dr. Petrovic on February 20, 2008, she
prescribed physiotherapy. Ms. Jones then attended physiotherapy until
August 21, 2009.

[23]        
Ms. Jones saw Dr. Petrovic again on September 29, 2008, at
which time she told her that she had developed jaw clicking and right TMJ
(temporomadibular joint) pain, for which she started treatment on July 21, 2008.

[24]        
Ms. Jones saw Dr. Petrovic again on January 22, 2009, and told
her that her neck, lower back and hips were still painful and stiff.

[25]        
In her report dated October 5, 2009, Dr. Petrovic stated:

In my opinion, Ms. Jones sustained a number of soft
tissue injuries in an MVA that occurred on or about December 18, 2007. These
injuries included right ankle, posterior neck, left hip, right shoulder,
pelvic, lower back muscle strain, and ligament sprain. She developed tension
headaches because of the neck and shoulder injuries. She started treatment for
her TMJ problems in July 2008. I can not ascribe her TMJ problems directly to
the MVA. However, Dr. Blasberg makes a strong argument to do so. I would
defer to his expert opinion regarding this.

I would expect Ms. Jones to
have an excellent chance for nearly full recovery from all of her MVA related
injuries, except for her TMJ problems. In my experience, very few people have
complete recovery from traumatically caused TMJ dysfunction. If she is
currently having TMJ problems, then I would suggest that she see a certified
specialist in Oral Medicine, for ongoing management and care.

[26]        
Dr. Blasberg is an expert in oral medicine. He examined Ms. Jones
on March 6, 2009 and prepared a report dated June 1, 2009. In his opinion,
Jones’ jaw problems were caused by the accident. He wrote in his report:

Ms. Jones reported that jaw pain started several weeks
after the motor vehicle accident and jaw clicking started about three months
after the motor vehicle accident.

Based on Ms. Jones’s account of symptoms after the motor
vehicle accident and clinical records reviewed, the temporormandibular disorder
was a less severe injury than the injuries that affected the back and neck. There
were no notes to indicate that the jaw was examined shortly after the motor
vehicle (sic). Ms. Jones noted the jaw pain with function and altered her
use of the jaw as a management strategy that allowed her to cope with the
condition.

In my opinion, had it not been
for the motor vehicle accident of December 18, 2007, Ms. Jones would not
likely have developed the temporomandibular (jaw) disorder described in this
report. In other words, the motor vehicle accident of December 18, 2007 is the
probable cause or the significant factor resulting in Ms. Jones developing
this temporomandibular disorder.

[27]        
Dr. Goldstein is an expert in oral medicine who testified for the
defendants. He examined Ms. Jones and prepared a report dated December 1,
2009. In his opinion, the jaw problems experienced by Ms. Jones were
probably not caused by the accident, since if they had been, she would have
noticed them within 7 to 10 days after the accident.

[28]        
Dr. Reebye is a physiatrist who was called by the defendants. He
examined Ms. Jones on October 6, 2009 and reviewed her clinical records.
He testified that he does not feel that Ms. Jones has exaggerated her
complaints. In the appendix to his report he stated:

Nowadays, she still wakes up with constant tightness over the
region of her right shoulder blade and between her shoulder blades which she
feels has a nasty knot that she cannot get rid of.

She experiences a constant pain or a feeling of a tight knot
deep under her shoulder blades which she finds annoying and she does not know
how to get rid of it.

Her lower back pain is still stiff. It improves with
appropriate posture, sitting with a good support for her back while she is at
school and with stretching exercises.

It is more of a tightness and the worst feeling is in the
mornings with soreness in her lower back. This improves with stretching
exercises, is better during the day, but again worsens by the evening.

…

The shoulder muscles and the top
of her back always feels sore and worsens on lifting activities and improves
with heat. She experiences a feeling of tightness and pain going up to the back
of her neck and she finds it difficult to lean her head backwards because of
the pain.

[29]        
On the basis of all the evidence, I am satisfied that as a result of the
accident Ms. Jones suffered mild to moderate soft tissue injuries to her
right ankle, right wrist, left neck, left shoulder, and right lumbar area. Her
symptoms have now largely resolved, some two and one-half years after the
accident.

[30]        
Ms. Jones had experienced some problems with jaw pain and jaw
clenching prior to the accident. Her dentist had recommended a mouth guard. After
the accident, she did not report jaw pain until weeks later. I am not satisfied
that the plaintiff has established on a balance of probabilities that the
accident was a material contributing factor in the development of her jaw
problems: Athey v. Leonati, [1996] 3 S.C.R. 458.

[31]        
Ms. Jones seeks judgment and damages as follows:

[32]        
Ms. Jones filed as exhibit 7 a booklet of receipts for out of
pocket expenses. I am satisfied that these are reasonable expenses related to
the accident, and I award special damages in the amount claimed, namely,
$2,666.

[33]        
The claim for the cost of future care is related entirely to treatment
for her temporomadibular joint problems. I have concluded that the plaintiff
has not established on a balance of probabilities that these problems are
causally related to the accident. I therefore make no award for the cost of future
care.

[34]        
As a result of pain from the accident, Ms. Jones missed six shifts
as a substitute teaching assistant for which she claims $600. She says she also
lost about $288 in hourly wages and tips at GM Place. I award her a total of
$888 for past wage loss.

[35]        
The plaintiff claims $10,000 for “loss of opportunity” related to her
work as an extra in films. I think this could be better described as a claim
for loss of future earning capacity. She testified that her previous work in
films had required significant physical activity which was impossible for her
for a period after the accident as a result of pain from soft-tissue injuries. I
am satisfied that she is entitled to damages for this temporary loss of earning
capacity as a film extra, but the amount of $10,000 is far in excess of the
pattern of earnings that she enjoyed from this endeavour prior to the accident.
The plaintiff is awarded $2,000 for loss of future earning capacity.

[36]        
The remaining claim is for non-pecuniary damages. The plaintiff seeks
$45,000 under this head of damages. She relies on Mathews v. Walia,
[1995] B.C.J. No. 1781, where a 28-year old plaintiff who was extremely
active and athletic was awarded $35,000 in general damages; Ireland v. Webber,
[1997] B.C.J. No. 749, where the award was $30,000; and Daniels v.
Haaksma, 2009 BCSC 1624, where $40,000 was awarded.

[37]        
The defendants submit that the award for non-pecuniary damages should be
more modest, in the range of $10,000 to $20,000. The defendants rely on
Dhillon v. Ashton, 2009 BCSC 1109; Bohnke v. Venderveldt, 2006 BCSC
75; Davies v. Larabie, 2005 BCSC 1167; Cox v. Bounthavilay, 2007
BCSC 1199; Smith v. Wirachowsky, 2009 BCSC 1434; and Mullican v.
Steuart, 2003 BCSC 289. The awards for general damages in those cases range
from $10,000 to $30,000.

[38]        
I have considered the cases cited by both counsel. Although they are
helpful, every case must be determined on its own unique facts. I am satisfied
that in all the circumstances of this case, the plaintiff should be awarded
$20,000 in general damages for pain, suffering, and loss of enjoyment of life.

Summary

[39]        
The plaintiff shall have judgment against the defendants for damages
from the motor vehicle accident as follows:

[40]        
There shall be no award for cost of future care.

“The Honourable Mr. Justice W.F. Ehrcke”