IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101126

Docket: M092342

Registry:
Vancouver

Between:

Rozita
Moini-Shirazi

Plaintiff

And

Chen Sun and

Lion International
Travel Service Co. Ltd.

Defendants

Before:
The Honourable Madam Justice Beames

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff was injured in a motor vehicle accident
on July 9, 2007. The defendants admit that the defendant driver was negligent,
but say that the plaintiff was contributorily negligent. Quantum, that is to
say assessment of damages, is also in issue in this trial.

[2]            
The accident occurred near the Superstore in Richmond, British Columbia.
The plaintiff, with her daughter as a passenger, drove out of the underground
parking lot intending to drive past the Superstore gas bar and then enter onto
the No. 3 Road.

[3]            
The defendant, driving a large tour van, had just fuelled his vehicle at
the gas bar. After going into the booth to pay for the fuel, he got back into
his van, which was facing on an angle towards the roadway or laneway the
plaintiff was travelling on, pulled out and hit the plaintiff’s vehicle.

[4]            
There is no question that the plaintiff had the right of way. There is
also no question that her vehicle was there to be seen, although clearly and
admittedly the defendant driver did not see her.

[5]            
The defendants assert that the plaintiff’s contributory negligence flows
from the fact that she says she did not see the defendant’s van until it struck
the back driver side of her vehicle, in the area of the rear wheel.

[6]            
The defendant’s van was, as I have said, at the gas bar. It was faced in
the opposite direction from what was normal for the gas bar and contrary to the
one-way arrows painted on the asphalt at the entry points to each gas pump.

[7]            
The plaintiff knew the area in question and knew that vehicles using the
gas pump and leaving the station were supposed to exit the station travelling
away from the roadway she was travelling on. She had no reason, in my view, to
be paying any particular attention to the vehicle stopped at the gas bar, as
opposed to watching in front of her as she left the Superstore complex.

[8]            
Further, given her speed and that of the defendant’s vehicle, and given
that her vehicle was struck near the rear of her vehicle, I do not know what
she could have done or should have done if she had in fact seen the van as it
was sitting at the gas pump. In other words, even if her failure to see the van
amounted to some error or error in judgment on her part, I do not find and
would not find that it contributed to the accident itself.

[9]            
It follows that I find the defendants solely and 100 percent liable and
at fault for the accident.

[10]        
By way of very brief background, the plaintiff is 48 years old. She has
two children, age 15 and 21, both of whom live with her. Her husband, from whom
she has been separated but apparently is back together with, lives at the
present time in Iran, so she is effectively a single parent.

[11]        
She is a painter, that is to say an artistic painter and not a house
painter, who has worked as a painter, an illustrator, an art director and an
art instructor and tutor. She has had solo exhibitions and has participated in
group exhibitions and has had some sales of paintings, including a commissioned
piece which sold for $12,500 (in round numbers) in 2005.

[12]        
She has a bachelor of fine arts and a masters degree of illustration,
and she recently started work on her Ph.D. at Simon Fraser University. She has
recently been a sessional instructor at Emily Carr, the first time during the
2009/10 school year, and she has plans to teach two more courses at Emily Carr
for the January to April 2011 term.

[13]        
It is apparent and conceded that the plaintiff did suffer some injuries
as a result of the collision. That is not disputed. What is in issue is the
significance of those injuries and the impact of those injuries on the
plaintiff’s life, given her past medical history, which includes a longstanding
problem with depression and anxiety which she attributes to her teenage years
in Iran during which the revolution occurred.

[14]        
Immediately after the motor vehicle accident the plaintiff felt no pain.
By that evening and then developing over the ensuing days, the plaintiff became
aware of pain in her neck, her ear and her jaw, her shoulder and her upper
back, all on the right side. She started experiencing headaches, which have
been right-sided only, and also had some pain in her lower back.

[15]        
On the advice of her doctor, she tried physiotherapy and massage
therapy, and she took muscle relaxants and anti-inflammatories. She also took
some yoga classes, and in the more recent past she has been swimming, all in an
effort to improve her condition.

[16]        
The plaintiff feels that she had limited improvement of any of her
symptoms for almost one to two years after the accident. However, since
approximately 2009 she has had significant improvement in her low back and mid
back pain, and she has also had improvement in her jaw and in her ear pain. She
can still have occasional pain in those areas if she does too much, but those
areas of her body continue to improve. She has also had less frequent and less
severe headaches over time, having gone from nearly daily headaches to
headaches which now occur approximately three times per week when she is
studying and less frequently when she is not.

[17]        
The plaintiff continues most significantly to suffer from neck and
shoulder pain on the right side and with problems with what she describes as
numbness in her right hand, and particularly two of her fingers on her right
hand, when she paints, which has caused a significant limitation on her ability
to paint since the accident and continuing to date.

[18]        
There are two medical reports before the court, and both of the doctors
who authored those reports testified with regard to their opinions. One of the
doctors was the plaintiff’s family doctor and the other was an orthopaedic
surgeon engaged by the defendant to prepare an independent medical examination.

[19]        
The plaintiff’s family doctor says:

 In summary, this patient as a result of the MVA
of July 9, 2007, has sustained the following injuries:

1.         Neck
strain

2.         Severe
soft tissue injuries of her upper trapezeii, right anterior shoulder and right
upper extremity

3.         Mechanical
low back pain

4.         Right
temporomandibular joint strain

5.         Mild
anxiety

 With the prescribed physiotherapy program, this
patient’s right upper back, right shoulder and right upper extremity pain has
gradually resolved. She continues to have intermittent headaches and right jaw
pain. I would recommend that this patient be seen by an oral surgeon as her
headaches could possibly be from the strain to her right TM joint. She should
continue a home exercise program of gentle stretching exercises of the neck and
back as well as isometric neck strengthening exercise to prevent chronicity of
her neck and upper back pain.

 At her last visit on
June 18, 2010, this patient’s anxiety symptoms had considerably improved. She
had been working at Emily Carr Institute as an instructor since September 8,
2009. Her anxiety had improved and she had decreased her medication. I am
confident that over a period of three to six months her neck pain, upper back
pain, and right upper extremity pain should subside. However, in view of her
persistent intermittent headaches, I would still recommend that she be seen by
an oral surgeon.

[20]        
With respect to the opinion of the orthopaedic surgeon, it similarly was
prepared in July of 2010. The orthopaedic surgeon, Dr. Hawk, said the
following:

In my opinion [the plaintiff] has a history consistent with
her having sustained myofascial soft tissue injuries to her right cervical
muscles and right upper trapezius muscle region. As a result of her motor
vehicle accident, she complained of right posterior neck pain with radiation of
pain into the region of her right ear and right temporomandibular joint region.
She also had referred pain to her right shoulder region as a result of her
right trapezius muscle soft tissue injuries.

I believe as a result of her soft tissue injuries to her
posterior neck and upper shoulder region, she developed episodes of recurrent
numbness and cramping of her right hand while painting 2 hours or more. I do
not believe that this problem is a result of impingement of the right ulnar
nerve.

I do not believe that there are any clinical findings to
support her complaints that her ability to paint has been limited now or in the
future as a result of her soft tissue injuries she sustained in this motor
vehicle accident.

I would encourage her to continue
with stretching exercises for the muscles about her neck and shoulders. I
believe that she should continue with Bikram Yoga sessions which she found
improved her neck and shoulder complaints.

[21]        
In terms of prognosis, Dr. Hawk said:

This 47-year-old female who was
involved in a motor vehicle accident on July 9, 2007 presents with a history
consistent with her having sustained soft tissue injuries to her right
posterior neck and right upper shoulder region involving the superior trapezius
muscle region of her right shoulder. I believe that her complaints of pain are
the result of a myofasciitis. I would recommend that she be encouraged to
continue with active stretching and strengthening exercises for the muscles
about her neck and shoulders. I would also encourage her to begin progressive
cardio exercises to improve her general fitness and strength. I would advise
that these be non-impact exercises, such as riding a stationary cycle, Elliptical
exerciser or swimming.

[22]        
It is of note, in my view, that both of these reports, that is, the
report prepared by the family doctor and the report prepared by the defence
orthopaedic surgeon, were prepared three years post-accident. I will also say
that in cross-examination Dr. Hawk testified that he does believe that the
plaintiff’s complaints with regard to her hand are arising from muscle cramping
and are as a result of, or at least are contributed to, by her neck and
shoulder issues, which relate to the motor vehicle accident.

[23]        
The plaintiff, I find on all of the evidence, has had some degree of
pain and discomfort from the injuries she sustained from the date of the motor
vehicle accident and continuing to the present. She will, I accept, continue to
have difficulties in the future, although there has been recent improvement and
there is reason for some optimism with regard to the future and continued
improvement. The plaintiff has had, as I have said earlier, a problem with
depression for years, as well as some panic attacks and anxiety in the past. The
defendant asks me to find that her depression and anxiety have been the reason
for many of her problems and limitations.

[24]        
While I acknowledge her ongoing problem with depression, I must of
course consider her level of functioning before and after the accident and
attempt to measure, as directed by the Supreme Court of Canada in Athey v.
Leonati, [1996] 3 S.C.R. 458, the difference between the uninjured person,
that is, the person before the motor vehicle accident happened, and the person
after the injury, and I have to take care to ensure that I am only assessing
the damages attributable to that difference.

[25]        
I am satisfied by the plaintiff’s own evidence, and I will say that I
found her to be a very credible and forthright witness, as well as the evidence
of her witnesses and the medical evidence, that the plaintiff has had
significant limitations due to her injuries and that those have affected her
social life, her family life and her professional artistic life.

[26]        
Taking into account all of the evidence and having read last night the
cases which were provided to me by both counsel, I assess the plaintiff’s non-pecuniary
damages at $35,000.

[27]        
The plaintiff, who had until 2009, supported herself primarily by
receipt of social assistance, does not seek, and I will not award, any past
loss of income.

[28]        
With regard to any loss of capacity, that is to say capacity to earn
income in the future, the plaintiff does make a claim, and the defendant says,
on the other hand, that there is no evidence to support such a claim, relying
in particular on the plaintiff’s past income, or lack of income, as
demonstrated by the tax returns that have been filed in this matter.

[29]        
The plaintiff is now taking her Ph.D. She has in fact improved her financial
situation since the time of the motor vehicle accident by having secured
employment, although not on a continuing permanent basis, at the Emily Carr
Institute. As I indicated, she worked there for the 2009/10 academic year, and
she has a contract, apparently, for the first semester in 2011, from January to
April.

[30]        
I find that the plaintiff has been and continues to be limited in her
ability to paint. I accept that she is not able to sit, read, write or paint
for periods or stretches as long as those she used to enjoy. I also accept that
as a result of her pain and the effect it has on her concentration and energy
levels that she is less able than she was before to juggle her activities and
demands. That results, in my view, in her being at least somewhat less capable
overall to earn income, including from painting, and less valuable to herself
as a person capable of earning income. However, given her past income earning
and her present situation, I find her loss is modest in the extreme.

[31]        
Doing the best I can with the evidence that is before me, I assess the
plaintiff’s loss of capacity in the future at $5,000.

[32]        
The plaintiff seeks an award for future cost of care, but has provided
no evidence as to what amount her future care needs, including regular swimming
or for that matter a personal trainer as seems to be supported by the
defendants’ expert, Dr. Hawk, will cost. I accept that the plaintiff will
have some modest costs associated with fitness and perhaps for some minor pain
medication. I will allow the total sum of $500.

[33]        
The special damages have been agreed between the parties at $345.

[34]        
In sum then, I order and assess damages as follows:

[35]        
It was suggested yesterday that there may be a desire to address costs. Is
that the case?

[36]        
MS. NEATHWAY:  My Lady, the costs will be as under Rule 15. This
was a fast track action, so that amount is set. The only thing the plaintiff
would seek in addition is an award of costs based on the fact that a notice to
admit liability was sent and subsequently denied by the defendant, and the
plaintiff feels as though the time spent in this trial proving liability was
unnecessary given the circumstances, and estimate approximately a half a day
total of trial both with the plaintiff’s evidence and the daughters’ evidence
and the evidence of the defendant, including his cross-examination, so perhaps
a half day of trial as costs for that purpose.

[37]        
THE COURT:  Mr. Morris?

[38]        
MR. MORRIS:  The defendant submits that liability was a viable
issue and ought to have been heard and decided by Your Lady.

[39]        
THE COURT:  So you say just normal fast track costs?

[40]        
MR. MORRIS:  Correct. Two days for hearing at $9,500.

[41]        
THE COURT:  Plus disbursements.

[42]        
MR. MORRIS:  Correct.

[43]        
THE COURT:  Is there any tax on that?

[44]        
MR. MORRIS:  Yes, there is, perhaps, paid on the $9,500.

[45]        
THE COURT:  Under the circumstances I am not prepared to award
additional costs associated with the issue of liability. It did consume some
time. I am of the view it should properly have been admitted, but I am not able
to find that it added significantly to the time required for trial. Consequently,
I will order that the defendant pay to the plaintiff costs pursuant to Rule 15,
that is to say $9,500, plus tax and plus disbursements.

[46]        
MS. NEATHWAY:  Thank you, My Lady.

[47]        
THE COURT:  Thank you very much.

[48]        
MR. MORRIS:  Thank you, My Lady.

[49]        
THE COURT:  Thank you, Mr. Morris.

“A.J. Beames J.”
Beames J.