IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110429

Docket: M090607

Registry:
Vancouver

Between:

Peter Yan Ho Pang

Plaintiff

And

Shenul Dhalla and
BMW Canada Inc.

Defendants

Before:
The Honourable Madam Justice Dillon

Reasons for Judgment

[1]          
The plaintiff claims damages for injuries suffered in a motor vehicle
accident of April 13, 2007 that is said to have been caused by the negligence
of the defendant, Shenul Dhalla. The trial proceeded under Rule 15-1.

[2]          
The plaintiff is a 40-year old accountant with university and
professional training. He has resided in Canada and worked in a professional
capacity for 24 years.

[3]          
On April 13, 2007, the plaintiff had left a meeting with a client, Carol
Lee, and was proceeding towards Richmond, B.C., southbound on Fir Street near 12th Avenue in his red
Toyota. As he approached the intersection, A BMW X5 vehicle, that had been
stopped behind left turning vehicles in the left lane, turned into the curb
lane occupied by the plaintiff’s vehicle. Whether there was an impact and
whether the defendant signalled her turn into the curb lane are at issue.

[4]          
Carol Lee was following the plaintiff and observed the event. However,
she could not recall what lane she was travelling in or how far she was behind
the plaintiff. She described that the BMW turned into the plaintiff’s lane “as
if she had not seen him”, “as if nothing had happened”, “as if there had been
no impact”. Ms. Lee initially testified that the driver of the BMW had not
signalled the lane change, but later agreed that she assumed that this was so
without the actual observation. Ms. Lee could not recall hearing a horn, a
squeal of brakes, or any impact. Ms. Lee pursued the BMW and signalled the
driver to pull over, which she did. Ms. Lee did not leave her vehicle and
eventually continued on.

[5]          
The plaintiff testified that he was southbound on Fir Street, travelling
at about 45-50 kph, when he observed the BMW turn into his lane at slow speed.
He testified that he slowed down, disengaged the transmission, and then hit his
brakes suddenly to avoid an accident. He could not remember if he sounded his
horn. He did not feel or hear an impact and did not know if there had been one.
He said that he had enough distance to stop his vehicle. He brought his vehicle
to a stop near the BMW and exchanged information and commentary with the
defendant. He told the defendant that he did not know whether there had been an
impact. He thought that that may have been observed scratches on his car;
however, he also testified that those scratches had probably been there before.

[6]          
The defendant testified that she was stopped on Fir Street behind
vehicles making a left turn onto 12th
Avenue. She stated in direct examination that she looked at her rear
view mirror, signalled, observed a red car stopped, and then proceeded into the
curb lane. She did not check her side mirror, the “blind spot”. She did not
sense that anything had happened until Ms. Lee motioned for her to pull over.
The defendant spoke with the plaintiff and both looked to see whether there had
been any damage to the vehicles. There were no marks or damage to the
defendant’s vehicle. Although there were scratches to the plaintiff’s vehicle,
the conversation proceeded as though they had been there before.

[7]          
Based upon this evidence, the plaintiff has not proven that there
probably was an impact or collision between the vehicles. At best, the
plaintiff hard braked to avoid an accident after the defendant turned into his
lane. From the actions of the plaintiff in slowing as it became apparent that
the defendant was moving her vehicle into his lane and from the evidence of the
defendant, I conclude that the defendant signalled her lane change. It cannot
be determined that Ms. Lee was in a position to see or not to see a signal.

[8]          
However, the defendant was negligent in changing lanes before
ascertaining that it could be made safely without affecting the travel of
another vehicle, in this case, the plaintiff’s vehicle. The defendant had to
hard brake to avoid an accident. If the defendant had looked at her blind spot,
she would have determined that she could not safely enter the curb lane. Her
failure to do so caused the plaintiff to hard brake.

[9]          
Prior to the accident, in March 2007, the plaintiff attended at a
chiropractor once a week to “try to straighten his back” where he experienced
pain from time to time and to mange neck and shoulder pain. This pain had
started about the time of a fall in 2002. As reported to a different
chiropractor the day following the accident, the plaintiff had experienced
continuous sharp, stabbing pain in his lower back and between his upper
shoulders prior to the accident. The plaintiff had booked the appointment prior
to the accident to mange and treat his pain even though this was not golfing
season when the plaintiff testified that he typically experienced low back pain
after golf. He described that the pain had started earlier in 2007 and he did
not relate this pain to the incident the day before. The plaintiff also
complained on that day that one leg was shorter than the other causing him to
feel that his back was “twisted.” Although the plaintiff said in direct
examination that the pain related only to golf, involved only his lower back,
occurred rarely, and was not a present description, the self description to his
chiropractor speaks to the contrary and is preferred. The plaintiff stated upon
cross-examination that all that he told the chiropractor and wrote in the self
description related to symptoms prior to the accident. He did not mention the
accident when he saw the chiropractor the day after the event. The plaintiff
took prescription drugs for his pain even during the off season for golf. He
had also suffered shoulder dislocation injuries in 1989 and then again in 2002.

[10]       
Two to three days after the accident, the plaintiff testified that he
experienced pain in his upper neck, shoulders and lower back. This was contrary
to the statement to his chiropractor that the pain was continuous. He took the
usual anti-inflammatory prescription that he took prior to the accident and
Tylenol. When the symptoms did not improve, he attended the next day to a
general practitioner, Dr. Lee, who referred him to physiotherapy.

[11]       
The neck pain resolved within a few months after physiotherapy. The
tightness in the shoulder also resolved within this time.

[12]       
The plaintiff said that his back pain continued “on and off pretty much
every day” for the next few months, feeling as though one leg was shorter than
the other. He took the regular prescribed anti-inflammatory medication and
attended at physiotherapy twice weekly. He found that the pain increased
following physiotherapy. After 15-20 treatments, he stopped because the
physiotherapist recommended that he see a specialist. The plaintiff felt that
he had a “crooked back” and saw Dr. Lee who referred him to Dr. Hershler. The
plaintiff then attended for acupuncture which helped his pain such that he felt
much better and had only a little bit of pain by the end of 2007 because his
back was “not as crooked.”

[13]       
The plaintiff took no medication for pain in 2008. He had taken little
anti-inflammatory medication since May 2007. He did not golf, cycle, or hike,
but mostly because he had two very young children. By the end of 2008, the
plaintiff said that his back pain was 80-90% better with pain only once every
month or two. The same patter continued in 2009, and by 2010 the pain had
resolved.

[14]       
Dr. Lee reported that the plaintiff told him on April 16, 2007 that he
had collided with a large SUV and was jolted by the sudden impact. The
plaintiff said that he developed neck, shoulder and back pain and was dizzy
with headache following the accident. The plaintiff told the doctor that he had
been pain free before the accident. Upon examination, the plaintiff appeared to
have tenderness in the neck and shoulders with good range of movement. The
doctor’s initial impression was that the plaintiff suffered a strain to the
neck and shoulders. The plaintiff had not indicated any significant pain in his
back. A month later, the plaintiff complained that his neck pain extended into
his lower back. There were no more complaints of neck or shoulder pain. Spine
alignment was normal. By June 2007, the plaintiff still complained of low back pain
with spasm and was concerned about curvature of his spine. The doctor found
certain tenderness but still normal range of motion. He sent the plaintiff for
a CT scan of the lumbar spine. When the plaintiff returned on June 12 with a
report from the physiotherapist expressing concern for the tilt of the
plaintiff’s spine, Dr. Lee referred the plaintiff to the specialist, Dr.
Hershler. The CT scan showed a broad based posterior bulging of the L4-5 disc
with no disc herniation per se. The plaintiff attended with his general
practitioner twice more, in April 2008 and then November 2010. He had
significantly improved and there were no abnormal findings despite the
plaintiff’s complaint of back spasm.

[15]       
Dr. Lee expressed the opinion in his report of December 18, 2010 that
the plaintiff suffered muscular and ligamentous injury involving the neck,
shoulder and back and disc injury involving the lumbar L4-5 region. He said
that this occurred only after the accident and that it was “highly probable”
that the accident was the main cause. However, the doctor was not aware of
previous back pain as it had not been reported by the plaintiff even though he
had attended at a chiropractor two days before complaining of that very thing
and had been specifically asked by the doctor about prior pain. The doctor
testified that if the plaintiff had back pain prior to the accident, then he
was not so sure that the disc injury was caused by the accident. He also agreed
that any back pain could have been related to degeneration in the spine that
was not related to the accident. He could not say for sure whether the
diagnosis of Dr. Hershler of Scheuermann’s disease was caused by the accident
and said that many people are asymptomatic with the disease. He disagreed that
a sudden stop could cause someone to become symptomatic.

[16]       
Dr. Hershler is a physical medicine and rehabilitation specialist. He
saw the plaintiff on September 25, 2007, March 5, 2008 and December 13, 2010.
The plaintiff told Dr. Hershler that he was pain free and in good health at the
time of the accident. The plaintiff told the doctor that he had braked suddenly
to avoid a collision and then experienced pain and stiffness in the neck and
low back within days of the accident. He also noticed tilting of his trunk. The
plaintiff reported to be almost pain free by the date of the doctor’s report on
January 6, 2011. The doctor said that all symptoms dated from the motor vehicle
accident on April 13, 2007; however, he was unaware of the prior complaints of
the plaintiff or his attendance with health professionals due to lower back and
other pain.

[17]       
Dr. Hershler considered that the 2007 X-ray showed degenerative change
to the spine which was confirmed in the 2007 CT scan to be degenerative changes
in the lower thoracic region and lumbar spine known as Scheuermann’s disease
and a bulging of the L4-5 disc that was not impinging on any nerves. Dr. Hershler
opined in his report that these conditions were caused by the accident of April
13, 2007. In so doing, he said:

It is important to note that,
prior to the accident, Peter was totally pain free and in good health. He had
never previous complained of back spasms or any tilting of his spine. He had
played regular games of golf without a problem.

[18]       
On cross-examination, the doctor clarified that Scheuermann’s disease is
inherited so that the plaintiff had this prior to the accident. He also said
that he could not be as sure that the accident caused the disc bulge if
symptoms existed prior to the accident. He agreed that the self report to the chiropractor
of April 14, 2007 was the same symptoms that he relied upon to make his
diagnosis. He could not connect the accident to a feeling that one leg was
shorter than the other. He agreed that if the plaintiff had fallen in 2002 and
required surgery for a dislocated shoulder, as he had, then the bulge could
have been caused in that fall especially if spasm symptoms of pain in the lower
back dated back to then or before the accident.

[19]       
Neither Drs. Lee or Hershler found that the degenerative changes and Scheuermann’s
disease were causal factors for the plaintiff’s subjective symptoms and disc
injury because the plaintiff reported being asymptomatic before the accident.
Their opinions that the disc bulge was caused by the accident were dependent
upon the information that the plaintiff was pain free prior to the accident.
The plaintiff’s assertion to both doctors that he had been pain free prior to
the accident was false. Because so much of their opinions depended upon this
statement, one cannot conclude that the accident probably caused the disc
injury or lower back pain.

[20]       
In my view, the plaintiff has not proven that the braking of his vehicle
to prevent an accident caused anything other than a minor exacerbation of
pre-existing pain in his neck, shoulder, and lower back. Because of his failure
to fully inform both doctors, their opinions about the accident causing a disc
injury are seriously undermined. The minor nature of the injuries is supported
by the fact that the plaintiff’s neck and shoulder symptoms resolved within a
few months, the plaintiff did not take time off work, and he needed little
medication. The effect on lifestyle was minimal.

[21]       
The defendant provided a range of damage for non-pecuniary loss of
$2,500 to $5,000. The plaintiff described a range of $20,000 to $40,000. Having
considered the cases provided, I conclude that an award of $5,000 is
appropriate.

[22]       
The plaintiff will be entitled to special damages for the cost of
physiotherapy, chiropractic, and acupuncture treatments related to the exacerbation
of his injuries after the accident and to the end of 2007. By this time, the
sole condition related to his lower back and the treatments for acupuncture
were consistent with the pace of treatments prior to the accident. Special
damages are awarded in the amount of $1,918.

[23]       
The parties may speak to the matter of costs.

“Dillon J.

________________________________

The Honourable Madam Justice Dillon