IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100830

Docket: M116522

Registry:
New Westminster

Between:

Bhupinder Singh
Brar

Plaintiff

And

Mavlyn M. Kaur and
James V. Cimino

Defendants

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
Mr. Brar was involved in a motor vehicle accident on December 22,
2006 when the vehicle in which he was a front seat passenger was struck in the
rear by a vehicle driven by the defendant Cimino.

[2]            
Mr. Brar sues Mr. Cimino and Ms. Kaur, the operator of a
motor vehicle behind Mr. Cimino’s vehicle that rear-ended Mr. Cimino’s
vehicle, pushing it into the Brar vehicle.

[3]            
Mr. Brar has filed a Notice of Discontinuance against the defendant
Cimino as Ms. Kaur has admitted full liability for the accident.

[4]            
As a consequence this Rule 18A application proceeded as an assessment of
the plaintiff’s damages for his injuries in this accident.

[5]            
The damage to the front of the Kaur vehicle was in the amount of $922.88.
Damage to the Cimino vehicle was confined to its rear end where it was struck
by the Kaur vehicle and was in the amount of $1,743.00. There was no damage to
the front of the Cimino vehicle where it struck the rear of the Brar vehicle.

[6]            
The Brar vehicle, driven by Mr. Brar’s wife, sustained rear end
damage of $568.67. This damage consisted of damage to the rear bumper cover.

[7]            
In the impact Mr. Brar says he felt a sudden jolt and whiplash
effect to his body. It was not, on his evidence, a great impact but a hard
impact and he says he immediately felt pain in his neck and back.

[8]            
He says following the accident he checked the rear bumper and found it
loose. This would be consistent with the damage repaired afterwards.

[9]            
The following morning he felt pain in his neck and lower back when he
moved in any direction.

[10]        
He says his general health prior to the accident was good and he was
able to go to the gym and lift heavy objects. He says however that about one
year prior to the accident he did have occasional pain in his low back from his
job as a long haul truck driver but that pain only ever lasted one or two days
and went away with Tylenol or Advil. According to his evidence by affidavit it
never prevented him from working, walking, lifting or bending.

[11]        
After this accident the pain in his neck and back kept increasing
initially and he took Tylenol and Advil. His family doctor was not available,
that being Christmas season, so he went to the Royal Columbian Hospital on
December 31, 2006 for treatment when his back and neck pain were increasing. He
was advised there to do stretch exercises and given pain medications.

[12]        
The hospital emergency form indicates that Mr. Brar had a good
range of motion to his neck but had pain on palpation of his paraspinal
muscles.

[13]        
Mr. Brar saw his family doctor, Dr. Sandhu, for the first time
on January 9, 2007 and saw him or his colleague five times between
then and May 17, 2007. He was prescribed pain-killers,
anti-inflammatory drugs and stretching exercises.

[14]        
For a few days after the accident he says he had problems with bending,
sitting or standing in one position for extended periods of time because of his
painful low back and he says he was in daily pain all day for two or three
weeks following the accident. He took his pain medication, did his stretching
exercises and used a heat pad for the first month.

[15]        
He says this neck and back pain lasted for about six months.

[16]        
He says he missed about four weeks from work as an owner operator of a
long haul truck, sitting for long periods of time and having to pull chains and
straps to tie down loads.

[17]        
He also makes a claim for past net wage loss.

[18]        
Mr. Brar’s wife supports all of his evidence in her affidavit.

[19]        
His family doctor, Dr. Sandhu, says in his report of November 12,
2008 that when he saw Mr. Brar for the first time on January 9, 2007 Mr. Brar
told him that he was getting occasional shoulder, neck and back pain, although
he was able to take two trips as a truck driver with frequent rests while
driving due to neck, shoulder and low back pain.

[20]        
On examination that day Dr. Sandhu said Mr. Brar had
tenderness along the trapezius muscle and tenderness along his lower back. Range
of motion testing of the neck was full but painful in all directions. Back
range of motion had painful extension and flexion limited to 60 degrees. The
rest of the examination was normal.

[21]        
Dr. Sandhu diagnosed Mr. Brar at that time with lower back and
trapezius sprain and advised him to apply heat and instructed on general
exercises and stretches.

[22]        
Mr. Brar was also prescribed an anti-inflammatory and analgesic and
advised on a graduated return to work over the next two to three weeks.

[23]        
When Mr. Brar saw Dr. Sandhu’s colleague on January 16, 2007
it is reported that he was complaining then of a painful neck but his neck
movements were good with tenderness along the neck and shoulder blade. He was
advised to return to work and increase activity levels.

[24]        
When he returned again to Dr. Sandhu on January 20, 2007 he
reported two days of worse neck pain but was better on the visit and had a
normal range of motion with pain at the base of his neck and trapezius with
left neck rotation.

[25]        
Dr. Sandhu suggested it was safe for Mr. Brar to return to
work the following week.

[26]        
When Mr. Brar returned on February 14, 2007 he told Dr. Sandhu
that he had low back pain and his left and right trapezius felt tight. He had
tenderness along the trapezius. He was able to flex his back to 90 degrees
which was normal for him and Dr. Sandhu diagnosed him with resolving soft
tissue injuries and asked him to continue exercising and stretching.

[27]        
On May 17, 2007 Mr. Brar told Dr. Sandhu that he had
occasional tightness in his low back and on that visit was only able to flex
his back to 45 degrees. He was asked to increase his exercise level and go to
the gym.

[28]        
On August 15, 2008, which I assume is the next visit after May 17, 2007,
Mr. Brar attended the office for an unrelated reason.

[29]        
Dr. Sandhu says that Mr. Brar had a straightforward recovery,
took a reasonable time off work, participated fully in his recovery and recovered
within six months.

[30]        
Plaintiff’s counsel submits that this evidence supports an award for Mr. Brar
of non-pecuniary damages of $15,000 and he relies upon the cases of: Chandra
v. Chen, 2010 BCSC 838; Boag v. Berna, 2003 BCSC 779; and Nickerson
v. Allen Estate, 2006 BCSC 562, as cases with sufficient similarity to
support this award.

[31]        
Plaintiff’s counsel submits that the past wage loss for four weeks
should be set in the amount of $1,255.91.

[32]        
Defence counsel submits that the evidence of minimal vehicle damage to
the Brar vehicle and no damage to the front of the Cimino vehicle indicates
that this was only a minor impact to the Brar vehicle.

[33]        
He points out that when Mr. Brar sought medical attention at the
Royal Columbian Hospital, nine days after on December 31, 2006, the evidence is
that his neck already had a good range of motion and when he saw Dr. Sandhu
on January 9, 2007 it was only for occasional pain in his shoulder, neck and
back as Dr. Sandhu states in his report.

[34]        
When Mr. Brar returned to Dr. Sandhu’s office on January 16,
2007 he made no mention of any low back pain and he was advised to return to
work and to increase his activity level.

[35]        
Again on January 20, 2007 he had no complaint to Dr. Sandhu of back
pain and it was only on February 14, 2007 and May 17, 2007 that he complained
again of low back pain.

[36]        
Counsel submits that the low back pain complained of in February 2007
and May 2007 was more likely related to Mr. Brar’s pre-accident low back
problems than back problems arising from this motor vehicle accident.

[37]        
Counsel submits that at most Mr. Brar sustained soft tissue
injuries to his neck and low back from this accident for approximately one and
one-half months and in that time it was only occasional pain that he sustained
as Dr. Sandhu reported, with a need for a heating pad for only the first
month.

[38]        
He submits that the evidence does not support an injury to Mr. Brar’s
neck and back for six months but if the Court should conclude otherwise it was
only with greatly reduced pain for the last four and one-half months.

[39]        
He submits that the awards in Rodominski v. Lesal Holdings Ltd.
(S074373, New Westminster Registry January 13, 2005); Saluja v. Wise,
2007 BCSC 706; and Bagasbas v. Atwal, 2009 BCSC 512, are more
representative of the appropriate award for non-pecuniary damages of something
in the order of $3,000-$3,500 that Mr. Brar should receive.

[40]        
He distinguishes all the plaintiff’s cases as ones where the injuries in
those cases lingered on for longer than the first six month period or involved
other injuries associated with the soft tissue injuries.

[41]        
On the issue of past wage loss he submits it should only be awarded for
two weeks for $626 as in the first month Mr. Brar was able to make two
trips as a truck driver so he was not totally incapacitated from work for a
four week period of time.

Analysis and Decision

[42]        
It is near to impossible to assess credibility on a summary judgment
application supported only by affidavits. The plaintiff’s injuries were only
soft tissue injuries caused by a very minor accident and those complaints were
subjectively based and not objectively verifiable. Accordingly the Court must
be cautious in accepting his complaints as proven.

[43]        
However Dr. Sandhu does not suggest in his report the plaintiff is
not to be believed on his complaints or even suggest that he is exaggerating. He
appears to have accepted the plaintiff’s complaints as legitimate and
consistent with the mechanism of the accident and I likewise am prepared to
accept the complaints of the plaintiff as stated in his affidavit and as
reported to Dr. Sandhu.

[44]        
I am prepared to conclude that the plaintiff sustained mild soft tissue
injuries to his neck and back areas. While Dr. Sandhu says the plaintiff
was fully recovered in six months I observe that Dr. Sandhu’s last report
of complaints from the plaintiff was on May 17, 2007, only five months after
the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu
again until over one year later and then it was for unrelated issues.

[45]        
I agree with defence counsel that the plaintiff’s cases of Chandra v.
Chen and Nickerson v. Allen Estate are distinguishable as in those
two cases the plaintiffs were found to have lingering effects after the six
month period of time.

[46]        
However, it is not so easy for me to distinguish the decision in Boag
v. Berna where the award was for $14,000 for what appears to have been
comparable soft tissue injuries that resolved within six months with no sequelae.

[47]        
I observe however that the award was not based on any stated comparable
awards in other cases by judges of this Court so it is unknown how the trial
judge in that case came to his figure for general damages.

[48]        
In Rodominski v. Lesal Holdings Ltd., a 2005 decision in this
Court, the plaintiff was found to have sustained mild soft tissue injuries to
her neck and back that had largely resolved by the time she returned to work
approximately one month later and thereafter had occasional mild discomfort
that resolved within six months. She had sought damages of $7,500-$10,000 but
was awarded on a summary judgment hearing the sum of $3,000 for non-pecuniary
damages.

[49]        
In Saluja v. Wise, a 2007 decision in this Court, the award was
$2,500 for non-pecuniary damages based upon the plaintiff sustaining soft
tissue injuries to her neck, left wrist and forearm that significantly improved
within one month and generally resolved within three months, after which she
had intermittent pain.

[50]        
In Bagasbas v. Atwal, a 2009 decision in this Court, the award
was $3,500 for what was described as a whiplash to the plaintiff’s neck,
shoulder and upper back that probably substantially resolved within three
months. The plaintiff was found to have inflated her injuries and reliance was
placed in part on the award made in Saluja v. Wise.

[51]        
It may be that the plaintiffs in these three cases had credibility
issues facing them but the findings made are consistent with the findings I
have made in this case.

[52]        
Mr. Brar was advised on January 9, 2007 to start a graduated return
to work over the next two or three weeks which would have been by the end of
January 2007, one month or so after the accident. Even when he returned to
Dr. Sandhu’s colleague on January 16 he was advised to return to work. Even
with his relapse by the time he saw Dr. Sandhu again on January 20 he was
still advised to return to work the following week, consistent with the
original advice given on January 9, 2007.

[53]        
In my view the cases presented by the defendant are far more
representative of the appropriate award that should be made to the plaintiff in
this case for non-pecuniary damages.

[54]        
I award the plaintiff $4,000 for non-pecuniary damages as his injuries
lasted slightly longer than the injuries of the plaintiffs in Saluja and
Bagasbas.

[55]        
I am prepared to award the plaintiff his net past wage loss claim for
two weeks of lost wages in the amount of $626.

[56]        
Under Rule 14-1(10) of the Rules of Court:

A plaintiff who recovers a sum
within the jurisdiction of the Provincial Court under the Small Claims Act
is not entitled to costs, other than disbursements, unless the court finds that
there was sufficient reason for bringing the proceeding in the Supreme Court
and so orders.

[57]        
The defendant submits that the plaintiff should be denied his costs in
this Court under that Rule because the plaintiff had Dr. Sandhu’s report
of November 12, 2008 in hand at the time the writ of summons was issued on
November 29, 2008, so the plaintiff knew that Dr. Sandhu’s opinion was
that he was fully recovered within six months.

[58]        
On the existing case law the most the plaintiff could reasonably think
he could be awarded for his non-pecuniary damages is somewhere between
$10,000-$20,000 so he could never have reasonably expected to obtain an amount
in excess of the Small Claims jurisdiction of $25,000.

[59]        
However plaintiff’s counsel submits that there was sufficient reason to
bring the claim in Supreme Court because the defendant Kaur did not admit
liability until after her examination for discovery, which was needed to
establish her liability. Such a procedure is not available in the Small Claims
jurisdiction.

[60]        
He relies on case law in this Court that suggests this may be a
sufficient reason to bring this claim in this Court.

[61]        
However, in this case it was a rear-end accident with the plaintiff
suing both following drivers. He may not have obtained an admission of
liability from the defendant Kaur until after examination for discovery but he
was always bound to succeed on the issue of liability against one or both of
the defendants he sued. If he had sued both defendants in Small Claims without
examination for discovery he would still have succeeded against one or both of
them.

[62]        
Accordingly I do not see any sufficient reason for him to have brought
this claim in this Court and his costs are denied. He will have only his
disbursements.

“The
Honourable Mr. Justice Truscott”