IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100823

Docket: M090325

Registry:
Vancouver

Between:

Karmjeet
Kaur Grewal-Cheema

Plaintiff

And

Alberto
Tassone and Honda Canada Finance Inc.

Defendants

Before:
The Honourable Mr. Justice Stewart

Reasons for Judgment

[1]            
The plaintiff claims damages for negligence arising out of a motor
vehicle accident which occurred on March 23, 2007.  The vehicle being driven by
the defendant Alberto Tassone rear ended the plaintiff’s vehicle.  Liability
has been admitted.  I must assess the damages.

[2]            
I note that the operative word is “assess”.

[3]            
The case is one in which both the plaintiff and the defendant were
driving relatively heavy vehicles.  The plaintiff and the defendant differ in
their descriptions of the impact.  I conclude that there was a significant
impact.  The evidence placed before me as to the nature and extent of the
damage done to the vehicles tends to support or confirm that conclusion.  Here
see Exhibit 5 Tab 1, Tab 3.

[4]            
It is common ground that as a result of the defendant’s negligence the
plaintiff suffered soft tissue injury.  It is also common ground that the
plaintiff had substantially recovered from her injuries within 18 months of the
date of the motor vehicle accident, that is to say by the fall of 2008.

[5]            
Significant facts in the case at bar include:  (1) the fact that
prior to March 23, 2007, the plaintiff had suffered soft tissue injury to
relevant areas of her body on a number of occasions, thus, as the medical
evidence before me confirms, increasing the likelihood that additional trauma
would result not just in soft tissue damage but in soft tissue damage the
effects of which would be her lot for a longer period of time than otherwise
might have been the case; (2) as at March 23, 2007, the plaintiff had a
pre-existing mild degenerative disc disease of the cervical spine, thus,
according to the medical evidence placed before me, increasing the chances that
the time it would take the plaintiff to recover from the results for the
plaintiff of the defendant’s negligence would be greater than it might
otherwise be; (3) the plaintiff was five months pregnant as of March 23,
2007.  That third point looms large in this case.

[6]            
I begin by noting that the applicable burden of proof in the case at bar
is proof on a balance of probabilities and that the onus that is on the
plaintiff on bottom issues shifts to the defendants on the issue of an alleged
failure by the plaintiff to mitigate her loss.  As for causation, I note that
the “but for” test is applicable.

[7]            
I note next that having considered the whole of the evidence together, I
find that both the plaintiff and her husband were honest, reliable witnesses. 
Inherent in this finding is that I reject the defendants’ submission to the
effect that I should find that both the plaintiff and the plaintiff’s husband
have lied to me in connection with various aspects of the case.  My reasons for
rejecting the defendants’ submission on this score include, but are not limited
to, the fact that neither the plaintiff nor her husband was confronted during
cross-examination with the proposition that they were lying and, moreover, had,
in one instance, agreed on a falsehood to be placed before the court.  I
emphasize that I know that lack of confrontation of a witness is not
necessarily fatal and that it is but a factor to be taken into account by the
trier of fact.  Indeed, as noted above, lack of confrontation was simply a
factor taken into account by me.  Failure to properly confront a witness
strikes at the heart of the fairness of litigation.  Here I refer to Madam
Justice Southin’s pithy statement in Steele-Wells v. Mahood (1995), 4
B.C.L.R. (3d) 57 (C.A.) at para. 5.

[8]            
I note next that the defendants have not convinced me that the plaintiff
failed to mitigate her loss.

[9]            
The allegation of failure to mitigate the loss falls into various parts.

[10]        
The case is one in which the plaintiff was on light duties at the liquor
store where she was employed when, on March 23, 2007, she was injured as a
result of the defendant’s negligence.  She stayed off work until August 25,
2008.  Twelve months of that seventeen months are accounted for by maternity
leave.  The balance of the time she was away from work is accounted for by
decisions she made on the advice of her treating physician, Dr. Chua.  Relevant
“Doctor’s Certificates” appear before me at Exhibit 2 Tabs 2/3/4.  One
certificate is not present.  The defendants said I should conclude that it
never existed.  Quite the contrary.  I conclude that there must have been such
a certificate or letter signed by the doctor and given to the plaintiff’s
employer not just because the plaintiff says there was such a document but
because Ms. Law (an assistant manager at a liquor store) told me that absent
such a document the request for a further period of time away from work at the
liquor store would not have been granted.

[11]        
Next, the defendants’ submission that some of the detail contained in a
reporting letter from Orthopaedic And Sports Injury Services (OASIS) at Exhibit
2 Tab 8 should convince me that the plaintiff was fit to return to work earlier
than she did ignores the fact that what the defendants rely upon is contained
in a letter which in its conclusion recommends additional involvement in a
conditioning program before the plaintiff returns to work (Exhibit 2 Tab 8 page
72).

[12]        
Next, the defendants’ allegation that the plaintiff failed to mitigate
her loss of income from her job at the liquor store is based on speculation as
to what the plaintiff might have been able to accomplish had she returned to
work not just pregnant but pregnant and suffering the effects of the
defendant’s negligence.  It ignores the fact that the plaintiff need only
conduct herself reasonably.  Here she was dealing with a doctor who had been
her doctor since 1986.  He knew her well.  He knew what her condition was when
she saw him on and after April 3, 2007.  He saw fit to confirm what she
realized herself – that she was in no fit condition to work.  The fact
that he did not know that she had been on light duty before March 23, 2007 is
neither here nor there for he did not say that had he known that fact he would
have declined to sign the certificates.  Similarly, evidence to the effect that
the plaintiff was told by her OB Gynaecologist, Dr. Ross – who she saw on
May 30, 2007 – that the doctor thought the plaintiff could return to work
assists the defendants very little.  Dr. Ross did not testify before me.  What
lay behind that cryptic statement by her is unknown.

[13]        
The defendants also allege a failure by the plaintiff to mitigate her
loss of income in that the defendants say that if – as I do, see infra –
I find that the result for the plaintiff of the defendant’s negligence included
a delay in her qualifying for a position with the Correctional Service of Canada,
then the plaintiff failed “to mitigate her damages by continuing her employment
until such time as she was capable of changing careers”.

 Defendants’ Closing Argument paragraph 31.

[14]        
Fatal to the defendants’ submission is the fact that what aborted the
plaintiff’s first attempt at qualifying for the job with the Correctional
Service of Canada – weakness in her right hand that would not have been
her lot but for the negligence of the defendant – did not come to light
until after she had made the hard decision to continue her course of
instruction in preparation for a job with the Correctional Service of Canada rather
than accept the Liquor Distribution Branch’s edict that a necessary extension
of her leave of absence from her job at the liquor store would not be
forthcoming, thus demanding that she return to work at the liquor store rather
than proceed with her course of instruction with the Correctional Service of
Canada.  Only if her leave of absence were extended could she both keep her job
at the liquor store and explore the possibility of qualifying for a job with the
Correctional Service of Canada.  She made her decision to quit her job at the
liquor store at a time when, considering what she knew then, the decision was
reasonable.

[15]        
As noted at the outset of these reasons, the plaintiff had substantially
recovered from her injuries within 18 months of the date of the motor vehicle
accident, i.e., by the fall of 2008.

[16]        
The plaintiff alleges that, unbeknownst to her, there was a significant
lingering effect of the defendant’s negligence that came to light only on
December 9, 2008.

[17]        
As of December 9, 2008, the plaintiff was in the third stage of a
four-stage “Correctional Training Program”.  She was attempting to qualify to
be a Correctional Officer.  See Exhibit 3 Tab 6.

[18]        
I find that while engaged in operating a handgun without live ammunition
she had trouble pulling the trigger.  After pulling the trigger a number of
times she found she could no longer pull it.  I find that she kept the problem
to herself and that nobody in authority noticed that she was having trouble. 
Next, the training in firearms shifted to the firing of live ammunition.  Here,
the plaintiff’s problem manifested itself for all to see.  I accept that she
believed her problem was lack of strength in her hand but initially said the
problem was test anxiety because she was embarrassed.

[19]        
The result for the plaintiff of her problem on the firing line was that
she washed out of the training program.

[20]        
The plaintiff then did the necessary to strengthen her arms and hands
and, in the result, began the Correctional Training Program all over again on
April 20, 2009.  She passed.  She was hired as a Correctional Officer on August
15, 2009.

[21]        
The only medical expert who testified before me was Dr. Chua.  Dr. Chua’s
opinion is that the plaintiff suffered from “weakness in her arms and fingers
related to her neck injury and unable to pull the trigger of guns”.  The “neck
injury” spoken of by Dr. Chua was a direct result of the defendant’s
negligence.  (As to all of this see Exhibit 2 Tab 1, especially page 5.  I note
that there is double numbering.  I refer to the number in the upper right hand
corner of the page.)  When he testified before me, Dr. Chua pointed out that
the combination of soft tissue injury to the neck and pre-existing degenerative
disc disease increased the likelihood that the injury to the neck resulted in
weakness in the hand.

[22]        
The defendants’ attack on that conclusion by Dr. Chua involves a number
of things.  The defendants point to the fact that such notes as there are by
caregivers of complaints by the plaintiff of problems with the upper
extremities do not present a pattern of early, persistent and consistent
reporting of problems with the hands.  I accept the opinion of Dr. Chua to the
effect that the absence of such a pattern of complaints is not inconsistent
with the opinion at which he arrived.  Further, I note that I accept as fact
what both common sense and the evidence of Dr. Chua and of the physiotherapist,
Ms. Renowitzky confirm, i.e., that in a busy practice not everything that a
patient says is noted on a chart by the caregiver.  Most important perhaps, I
find that it is a fact – as both the plaintiff and her husband told me it
was – that relatively early in her recovery she experienced problems with
her hands, including her dropping things.  The plaintiff’s testimony about her
worrying about dropping her baby was most convincing.  Having considered the
whole of it I find that but for the defendant’s negligence the plaintiff would
not have encountered the difficulty with the gun which she did encounter in
December 2008.

[23]        
Before turning to the assessment of damages I must deal with a point
taken by the defendants about the law with respect to causation.

[24]        
At paragraph 37 of the defendants’ closing argument this appears:

Dr. Chua testified that the
multiple injuries the Plaintiff suffered to her neck and back made her more
susceptible to complications with her pregnancy.  There is no medical evidence
confirming that the sole cause of her difficulties with pregnancy were as a
result of the MVA.  The Defendant is only liable for the “additional damage but
not the pre-existing damage”.  (Laidlaw v. Couturier, 2010 BCCA 59 at
paragraph 46 see Defendants’ Book of Authorities at Tab 3).

[25]        
The demand by the defendants that the plaintiff prove that the sole
cause of the plaintiff’s “difficulty with pregnancy” was the negligence of the
defendant is contrary to the law.  If authority be needed for that bottom
proposition I cite: Bradley v. Groves, 2010 BCCA 361, paragraph 19.

[26]        
Recasting the defendants’ submission as a submission to the effect that
I should reduce the damages from what they might otherwise be because the
plaintiff’s difficulties during her pregnancy, the birthing of the child and
the aftermath would have been her lot even absent the defendant’s negligence, I
find as follows:  there is nothing in this case that turns what begins as
speculation into a “measurable risk that a pre-existing condition would have
detrimentally affected the plaintiff in the future regardless of the
defendant’s negligence”. (Laidlaw v. Couturier, supra, paragraph 46). 
In other words, there is nothing that raises a mere possibility in the case of
many women to a measurable risk specific to this case.

[27]        
The plaintiff was 29 years of age on the date of the motor vehicle
accident.  She is now 32 years of age.  She graduated from high school in 1996
and obtained a diploma in criminology in 2002.  In 2004, she married Sundeep
Cheema.  She started working at a liquor store in 1998.  The duties of a clerk
are onerous.  I find that even when working light duty the job of a clerk would
be very difficult and painful for one burdened with the injuries suffered by
the plaintiff as a result of the defendant’s negligence on March 23, 2007.

[28]        
“Difficult” that is for anyone so injured even if they were not
pregnant.  And pregnant the plaintiff was on March 23, 2007.  She was five
months pregnant and working on light duty.  Shortly after the motor vehicle
accident on March 23, 2007, the plaintiff spoke to her OB Gynaecologist and, in
the result, went to Burnaby Hospital.  There she was assessed and released.  On
March 24, she went to stay with her in-laws in Mission because she was – to
use a term that paints a picture – “a mess”.

[29]        
On March 26, 2007, the plaintiff saw a doctor in Mission.  She had seen that
doctor before but he was not her “regular doctor”.

[30]        
The plaintiff stayed in Mission for approximately a week and after that
she returned to her home in Burnaby.

[31]        
On April 3, 2007, the plaintiff saw her usual family doctor, Dr. Chua.

[32]        
The plaintiff undertook a course of physiotherapy that encompassed April
4, 2007 to March 7, 2008 with a break in the middle because of the birth of her
child (a healthy girl) on July 24, 2007.

[33]        
I pause to note that on April 16, 2007, the plaintiff was admitted to
Royal Columbian Hospital – and kept there for three days – after
collapsing because of the effects of the defendant’s negligence upon her.

[34]        
From May 23, 2007 to October 12, 2007, the plaintiff undertook a course
of massage.

[35]        
On June 15, 2007, the plaintiff applied for maternity leave having been
absent from work since the date of the motor vehicle accident.  The plaintiff
returned to work August 25, 2008.

[36]        
From March 11, 2008 to June 5, 2008, the plaintiff undertook what was
referred to as a work hardening program at OASIS (Exhibit 2 Tab 8).  Also, in
March 2008 the plaintiff, her husband and the baby moved to Mission and into
the house owned by the plaintiff’s in-laws.

[37]        
The plaintiff’s maternity leave ended as of July 22, 2008.  From then
until August 25, 2008 she was on voluntary unpaid leave as she set about a
second course of work hardening exercises recommended by OASIS but for which
ICBC would not pay.  Having returned to work on August 25, 2008 the plaintiff,
at first, “worked around” her lingering physical problems.

[38]        
By mid-October 2008, the plaintiff felt good.  She was doing her job
without having to “work around” any problem.  For the purposes of the law she
had substantially recovered.

[39]        
And then the plaintiff decided to apply for a job with the Correctional
Service of Canada.

[40]        
In a nutshell, she took an unpaid leave of absence from the liquor
store, commenced her training, found that her employer would not extend a leave
of absence beyond November 30, 2008 and that her employer offered her the
choice of returning to work or quitting her job.  She quit her job and then
washed out of the “Correctional Training Program” when she realized, on
December 9, 2008, that she lacked the strength in her hands necessary to fire a
handgun.  And the ability to fire a handgun was essential to the job she was
seeking.

[41]        
In January 2009, the plaintiff saw Dr. Chua about this latest problem –
weakness in the hands – found that it was her doctor’s opinion that such
weakness was a direct result of the injuries she had suffered as a result of
the defendant’s negligence and, determined to start over again in the training
program, set about – with the advice of a trainer – to strengthen her
arms and hands.

[42]        
The plaintiff succeeded.  She was accepted into another round of the
training program on April 20, 2009.  She successfully completed the program and
was, in the result, hired as a Correctional Officer on August 15, 2009.  She
remains so employed.

[43]        
As a result of the effect on the plaintiff of the defendant’s negligence
on March 23, 2007, the plaintiff suffered soft tissue damage which resulted in
pain in the cheek bones, the jaw, the wrists, the neck, the upper back, the mid
back, the low back, the groin and the abdomen.  She also suffered from
excruciating, debilitating headaches.

[44]        
The result for the plaintiff of the defendant’s negligence was not just
persistent pain but agitation, inability to sleep and inability to get
comfortable in virtually any position.  In addition – and understandably –
regardless of the fact that the OB Gynaecologist was of the opinion that the
baby was in good health, the plaintiff worried constantly about the baby.  Only
the live birth of a healthy child would eliminate that worry.

[45]        
The plaintiff was basically an invalid looked after by either her mother
or her mother-in-law or her husband for a significant period of time.  She
would lie in bed.  Headaches were persistent.  If she moved about she
experienced sharp pain in the area of the groin which to her mind meant that
she was suffering pain in her uterus.  Her worrying was constant.  She was
miserable and cranky.  She could not eat properly.  As noted elsewhere, on
April 16, 2007 the plaintiff was admitted to Royal Columbian Hospital –
and kept there for three days – after first experiencing a sharp pain in
the groin, then having that pain worsen as it moved into her legs and, finally
collapsing on the floor.  911 was called, an ambulance attended and she arrived
at the hospital.

[46]        
As noted elsewhere, this is a case in which there was substantial
recovery in 18 months.  Obviously over that period of time the plaintiff’s
symptoms lessened.  But they did not lessen in a linear fashion.  Her symptoms
waxed and waned.

[47]        
The plaintiff made use of a maternity belt in an attempt to lessen the
pain she experienced when walking.

[48]        
The birthing process and the immediate aftermath were more uncomfortable
than otherwise would have been the case absent the effects on the plaintiff of
the defendant’s negligence on March 23, 2007.

[49]        
Being not just pregnant but injured the result for the plaintiff of
giving birth to her child was that her symptoms got worse.  In addition, she
began to drop things such as a cup.  She was frightened that she would drop the
baby and, in the result, had to have someone with her as she attempted to do
what she could for the baby.

[50]        
The plaintiff’s opportunity to enjoy being pregnant with her first child
had been ruined by the effects of the defendant’s negligence on March 23,
2007.  Now her opportunity to enjoy caring for her newborn baby was ruined by
the effects on her of the defendant’s negligence.  The plaintiff could not
attend the child at night as she otherwise would have.  She could not pick up
the child as she ordinarily would have done.  Breastfeeding the child involved
having somebody help her.

[51]        
The plaintiff’s social life had been destroyed by the effects of the
defendant’s negligence upon her.

[52]        
The plaintiff’s ability to undertake her 50% of the household chores was
destroyed as was her ability to swiftly and easily and routinely care for the
child.

[53]        
One bit of good news that the plaintiff had was that on January 10, 2008
an examination by a neurologist – to whom she had reported, inter alia,
weakness in her arm – resulted in a finding of no neurological damage.

[54]        
I take into account the whole of what has been placed before me and all
that I have said in these reasons for judgment and turn to the assessment of
non-pecuniary damages.  I have considered the cases placed before me by
counsel.  The plaintiff’s damages must be greater than they would otherwise be
because of the role her being first pregnant and then a new mother played in
the case at bar.  On the other hand – and unlike so many cases – it
is a case in which there was substantial recovery, and that within 18 months. 
I note here that I have not forgotten about the plaintiff’s lingering problem
that resulted in her problems on the firing line.  I award the plaintiff
$25,000.

[55]        
I turn to the plaintiff’s claim for loss of opportunity to earn income
during the period March 23, 2007 to August 25, 2008.  That in turn breaks down
into a number of things.  Proof on a balance of probabilities is not in issue. 
Real and substantial possibilities must be taken into consideration and given
weight according to their relative likelihood (Smith v. Knudsen, 2004
BCCA 613, paragraphs 23-38).  The plaintiff is entitled to an award of $16,830
arising out of the period March 23, 2007 to the commencement of the plaintiff’s
maternity leave.  That $16,830 includes a subrogated claim.  Next, the
plaintiff is entitled to be compensated for the period July 22, 2008 to August
25, 2008, the period during which she took a voluntary leave of absence and put
herself through a rigorous work hardening program.  The appropriate amount is
$3,713.

[56]        
I turn to the plaintiff’s claim for loss of the opportunity to earn from
an earlier date, the income that she began to earn as a Correctional Officer on
August 15, 2009.  The appropriate amount is $29,696 once the 28 weeks’ delay in
question is taken into account along with an allowance for unaccrued vacation
pay.

[57]        
The total award for past lost opportunity to earn income is $50,239.

[58]        
The yearly breakdown is:  2007 – $16,830; 2008 – $3,713; 2009 –
$29,696.

[59]        
If counsel cannot agree on the result, for this case, of Lines v.
Gordon, 2009 BCCA 106 and the need for notional income tax to be deducted
from the gross award for past lost income, they will have to get back before
me.

[60]        
The plaintiff claims special damages of $2,683.50.  The defendants take
issue with only a few things.  The defendants say that the amount allowed for
mileage should be $.30 per kilometre not $.50 per kilometre.  Both counsel
refer to the Schedules that form part of the Rules of Court.  I am not bound by
the Rules on this point.  I say that what matters is that judges live in the
real world.  In this day and age $.50 per kilometre is, if anything, too
little.  I am against the defendants.  $.50 per kilometre it will be.  The
defendants also made a submission about the period June 5, 2008 to August 25,
2008 and what the plaintiff was about during her “voluntary work strengthening program”. 
Simply put, I found the defendants’ submission unconvincing.  I accept the
plaintiff’s testimony to the effect that she worked hard and diligently and
treated what she was about as if it were her job.  In the result I award the
plaintiff $2,683.50 by way of special damages.

[61]        
I turn to the plaintiff’s claim for damages for “loss of housekeeping
and childcare capacity”.

[62]        
This is a claim personal to the plaintiff (Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652 (B.C.C.A.)).  No “in trust” claim is afoot.  The
defendants’ complaint about the lack of a pleading specific to this subject
matter is unconvincing.  It is inherent in the nature of a complaint by a
plaintiff positioned as this plaintiff was positioned that just such a claim
for damages will be made.  Indeed, the law in this province does not demand the
pleading of a discrete head of damages (McTavish v. MacGillivray, 2000
BCCA 164 at paragraph 73).

[63]        
I find that the evidence reveals that the minimum number of hours the
plaintiff lost because of her inability to perform household chores was 750. 
After the baby was born the plaintiff’s physiotherapy sessions consumed at
least 37.5 hours that the plaintiff might otherwise have devoted to childcare. 
The active OASIS rehabilitation program ate up a minimum of 105 hours.  The
plaintiff’s exercise program that she undertook just before going back to work
August 25, 2008 involved a minimum of 210 hours.

[64]        
I cite the case of Campbell v. Banman, 2009 BCCA 484, paragraph
21 and employ the figure of $15 per hour.

[65]        
Mathematically the award ought to be, call it $16,000.  But the Court of
Appeal in Campbell v. Banman, supra, has warned judges to remember that
there has not been any actual expenditure and not to be seduced by arithmetic. 
Judgment is demanded, says the Court of Appeal.

[66]        
In my opinion the court must be cautious in a case such as this lest a
defendant be done an injustice.  In the case at bar it is my opinion that an award
of $12,000 under this head of damages will compensate the plaintiff adequately
for her loss.

[67]        
As demanded by the case law I “step away” and look at the overall award
for reasonableness in the circumstances.  In my opinion it is reasonable.

[68]        
Counsel will have to arrange to make submissions on any ancillary matter
on which they cannot agree.

“Stewart
J."

___________________________________

The Honourable Mr.
Justice Stewart