IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101215

Docket: 08 4264

Registry:
Victoria

Between:

Joy De Leon

Plaintiff

And

Betty Harold

Defendant

Before:
The Honourable Madam Justice Power

Reasons for Judgment

Introduction

[1]            
This trial involves a motor vehicle accident which took place on
March 30, 2007, at the intersection of Marine Drive and McKay Street
in Vancouver, British Columbia, when the plaintiff’s vehicle was rear-ended by
the defendant’s vehicle.

[2]            
Liability for the accident is admitted, but the defendant, Betty Harold,
denies that any injury, loss, damage or expense to the plaintiff was caused by
or contributed to by the defendant. The defendant says in the alternative that
if causation is established, damages should be nominal, since any injury was
minor.

Circumstances of the Accident

[3]            
On March 30, 2007, the plaintiff Joy De Leon was proceeding to
work in her 1994 Ford Escort, two-door hatchback vehicle. It was a sunny day
and the streets were dry. Ms. De Leon was stopped on Marine Drive near the
intersection with McKay Street waiting for the light to change when someone hit
her from behind. At the time of the accident, Ms. De Leon was wearing a
seatbelt. In her evidence at trial, Ms. De Leon stated that at the time of
the impact she felt “a bump” and that she “was not thrown forward, but felt a
bump.”  She stated that she got out and checked on the ladies in the vehicle
behind her, took the other driver’s vehicle information and then went to work. At
the time of the accident, the plaintiff says she felt fine. The plaintiff was
scheduled to work the evening shift at Lion’s Gate Hospital as a registered
nurse. It was not until later that day at approximately 7:00 p.m. at work that
the plaintiff started to feel pain in her lower back and mid-back.

[4]            
The defendant Betty Harold was 73 years old at the date of the accident.
She was driving her 2001 Oldsmobile Allegra along Marine Drive with her mother
in the passenger seat. She describes traffic as “stop and go” at the time. She
described glancing at her mother, who was asleep at the time, and then she
stood on her brake and her car “tapped” the plaintiff’s car. She estimated that
her vehicle was travelling at 2 to 3 kilometres per hour (kph) at the time of
the accident. She got out of her vehicle and looked at both vehicles with the
plaintiff and decided there was no damage. She did not discuss calling the
police or the ambulance with the plaintiff and no emergency vehicles attended.

[5]            
On April 5, 2007, six days after the motor vehicle accident an
ICBC damage estimator Nick Johnson inspected the plaintiff’s vehicle and
completed a low-velocity claim form with respect to the plaintiff’s vehicle.
Mr. Johnson noted that the other vehicle had left an outline of its front
licence plate, including partial numbers in the dirt found on Ms. De Leon’s
vehicle’s rear bumper. He further noted that the rear bumper was lightly
scuffed in both areas. He was able to polish off the scuff marks and he
estimated and valued the cost of repairs at zero ($0.00). A pair of unrelated,
bolt imprints suggesting an earlier unrelated impact was also noted.

[6]            
An ICBC damage estimator also examined the defendant’s vehicle and noted
no visible signs of impact and valued the cost of repairs at zero ($0.00).

Injuries of the Plaintiff

[7]            
Immediately after the accident, the plaintiff thought she was fine and
continued on to work. It was on shift at about 7:00 p.m. that she began to
experience pain in her lower back and mid-back. She worked as a registered
nurse at the Lion’s Gate Hospital and did not do any lifting or even push a
medication cart. She testified that there was nothing that occurred after the
accident and before the pain started that could have caused her pain and
therefore she attributed the pain to the accident.

[8]            
Although the plaintiff was scheduled to work the next day, she called in
sick and took the next four days off as sick days. She called her doctor the
next day, but the earliest appointment that the medical office assistant could
provide was April 4, 2007. While she waited to see her doctor on
April 4, 2007, and to relieve her pain, the plaintiff went to see a
chiropractor who was recommended to her by one of her co-workers. She had
previously seen a chiropractor after a car accident in 1998. She advised her
chiropractor in an accident history form in response to a question about
residual pain or discomfort from a previous accident or injury that she had
“occasional back pain but mild and relieved with stretching.”  She gave similar
evidence at the trial and noted that the pain from the 1998 accident was more
on the left side and that the pain from the 1998 accident was resolved within
“a couple of years” which I took to mean by 2000. She was clear in her evidence
at trial that any back pain prior to the current accident was different and was
occasional and relieved by stretching.

[9]            
After the accident the plaintiff continued to visit the chiropractor for
eight to nine visits, until approximately mid-May when she decided the pain was
not severe enough to warrant further therapy.

[10]        
The plaintiff visited her doctor, Dr. Helen Vorobeychik on
April 4, 2007, and April 18, 2007, relating to the
accident, and on August 27, 2008, for a review of the motor vehicle
accident. Dr. Vorobeychik’s medical opinion was filed as an exhibit at the
trial and Dr. Vorobeychik testified at the trial. In summary, Dr. Vorobeychik
was of the opinion that the plaintiff sustained soft-tissue injuries to her
neck and back. At the visits, the plaintiff had complained of upper and mid-back
pain and she was advised to start therapy, take anti-inflammatory medications
and take a week or two off work. In her evidence at trial, Dr. Vorobeychik
was not troubled by the fact that there were no objective symptoms of injury
and Dr. Vorobeychik described soft-tissue injuries as a “personal,
how-you-feel kind of pain.”  Dr. Vorobeychik noted that the plaintiff did
not have the complaints of pain before the accident.

[11]        
In addition to the chiropractic treatments, the plaintiff visited a
massage therapist for eight to nine visits again until mid-May when she was of
the view that the pain was no longer severe enough to warrant the visits. In
summing up the pain from the accident the plaintiff stated in her evidence “It
wasn’t really that long, I would say within a couple of months I was fine, but
I would have occasional back pain for within six months.”

[12]        
The plaintiff’s common-law husband, Shawn Sullivan, testified at the
trial about the impact of the accident on the plaintiff. He testified that
after the accident he noted that the plaintiff was tired and prior to the
accident they would walk their two dogs together every day, but after the
accident he would walk the two dogs alone. He couldn’t say how long he walked
the dogs by himself.

Analysis on Causation

[13]        
The defendant submits that causation has not been established on a
balance of probabilities and points to the fact that there is no real damage to
the vehicle, the lack of objective symptoms in the medical evidence and no
mechanism of injury, the fact that there was some pre-existing back pain, and
the fact that the plaintiff got pregnant shortly after the accident and that
the back pain could have been attributable to the pregnancy.

[14]        
In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated
at paragraph 5:

[5]        The courts have long debunked the suggestion that
low impact can be directly correlated with lack of compensable injury. In Gordon
v. Palmer [1993] B.C.J. No. 474 (S.C.), Thackeray J. as he then was,
made the following comments that are still apposite today.

I do not subscribe to the view that if there is no motor
vehicle damage then there is no injury. This is the philosophy that the
Insurance Corporation of British Columbia may follow, but it has no application
in court. It is not a legal principle of which I am aware and I have not heard
it endorsed as a medical principle.

He goes on to point out that the
presence and extent of injuries are determined on the evidence, not with
“extraneous philosophies that some would impose on the judicial process.”  In particular
he noted that there was no evidence to substantiate the defence theory in the
case before him. . . .

[15]        
In Dao v. Vance 2008 BCSC 1092 Williams J. stated:

[18]      This was undoubtedly a low-velocity collision where
damage to the vehicle was so minimal as to be almost non-existent. All of the
evidence supports that conclusion. In such instances, claims for compensation
for injury are often resisted on the basis that there is reason to doubt their
legitimacy. Furthermore, in this case, the principle evidence in support of the
plaintiff’s claim is subjective, that is, it is her self report. There is not a
great deal of objective evidence to support her description of the injuries she
claims to have suffered.

[19]      In response to those
concerns, I would observe that there is no principle of law which says that
because damage to the vehicle is slight or non-detectable that it must follow
that there is no injury. Certainly, as a matter of common sense, where the
collision is of slight force, any injury is somewhat likely at least to be less
severe than in a situation where the forces are greater, such as to result in
significant physical damage to the automobiles. Nevertheless, I do not accept
that there can be no injury where there is no physical damage to the vehicles.

[16]        
In this case, I am satisfied on the balance of probabilities that the
plaintiff’s injury was caused by the accident. The plaintiff presented in
evidence as forthright and credible and was not prone to exaggerate the nature
of the accident or her injuries. Immediately after the accident she thought
that she was fine but she began to experience back pain within a few hours by
7:00 p.m. that evening and attributed the pain to the accident. I am satisfied
that the temporal link is sufficient to draw that conclusion. She reported the
accident to her doctor the next day and saw her doctor as soon as she was able
to, within five days of the accident. She was active in her own treatment plan
by initiating chiropractic treatment even before she saw her doctor, and she
continued to pursue chiropractic and massage therapy as recommended by her
doctor as part of her recovery. It is clear to me from the evidence that the
plaintiff’s own medical knowledge as a registered nurse assisted her in being
proactive about her own treatment, minimizing the recovery period for the
injury. Although she was encouraged to take one to two weeks off work, the
plaintiff took four days off work which she felt she needed. The plaintiff was
stoic and practical in her approach to the resolution of her injury.

[17]        
I am satisfied that the evidence of Dr. Vorobeychik supports the
testimony of the plaintiff. I do not find that Dr. Vorobeychik acted as an
advocate for the plaintiff but rather was forthright and credible in her
description of the injury and treatment. I accept the evidence of Dr. Vorobeychik
that she would not expect to see objective evidence in a soft-tissue injury
case. I am satisfied that although Dr. Vorobeychik was clearly a very busy
general practitioner, she was aware of the important facts surrounding the
accident including that the collision was a low-speed collision. She formed her
opinion based on the subjective report of the plaintiff including the fact that
the plaintiff did not have complaints before the accident and that the
plaintiff was extremely upset, and found it difficult to manage after the
accident. I am satisfied that the pregnancy of the plaintiff which was
diagnosed in July 2007, did not cause the injury and that the previous
accident in 1998, or any other incident was not the cause of the injury
reported.

[18]        
In summary, I am guided by the words of Kelleher; J. in Mudry v.
Minhas 2010 BCSC 637 paragraph 49:

[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 the cause of
her loss.

[19]        
I am satisfied that the plaintiff has discharged this burden and that
soft-tissue injuries to her neck and back were suffered as the result of the
accident. I am satisfied that the injuries were substantially resolved within
two months of the accident as the result of the plaintiff’s active efforts in
the first two months to attend chiropractic and massage therapy and that the
injury was almost completely resolved within six months.

Damages

[20]        
The plaintiff submits that she should be compensated in the range of
$9,000 to $15,000 for non-pecuniary pain and suffering. The defendant argues
that the damage award should be nominal and that the range is $1,000 to $2,000.
The plaintiff cited Lubick v. Mei (supra) ($18,000); Dao v. Vance
(supra) ($9,000); Dodson v. Gallo 2007 BCSC 1504 ($15,000); Munroe v.
Thompson 2009 BCSC 348 ($9,000); Darji v. Regimbald 2006 BCSC 834
($12,000).

[21]        
The defendant relied on Cook v. Webb 2004 BCSC 453 ($1,000); Way
v. Firgon 2001 BCSC 573 (a total of $3,500 for two accidents); Gibson v.
Saran 2003 BCSC 296 ($4,000).

[22]        
Having regard to the fact that each award must be based on the unique
circumstances of the case, and that the plaintiff’s stoicism is a factor that
should not penalize the plaintiff (Giang v. Clayton 2005 B.C.J 163 2005,
(B.C.C.A.)), I am of the view that an appropriate award for the plaintiff’s non-pecuniary
damages in this case is $12,000. The plaintiff will be awarded $1,200 for four
days of lost work as the agreed-to amount of the parties for special damages.

[23]        
Therefore the total damage award is $13,200. Costs may be spoken to or
written submissions may be made at the agreement of the parties.

“J.
Power, J.”
The Honourable Madam Justice Power