IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110608

Docket: M100735

Registry:
Vancouver

Between:

Laura Dolha

Plaintiff

And

Melissa Alyson
Heft

Defendant

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
This is an action by the plaintiff for damages arising out of a motor
vehicle accident. The parties do not dispute liability. The defendant applies
for a determination of damages pursuant to Rule 9-7 of the Supreme Court
Civil Rules, B.C. Reg. 168/2009. Both parties consent to a summary trial of
this issue. The material facts are not in dispute; it is a question of drawing
inferences from the facts to arrive at a proper assessment of damages. I agree
with the parties’ assessment that the summary trial procedure is appropriate.
The plaintiff’s claim is based on a relatively minor accident that caused mild
to moderate whiplash injuries. There is no claim for past or future wage loss.
Nor does the plaintiff claim any special damages. The sole issue is the quantum
of non-pecuniary damages.

[2]            
The plaintiff does not dispute the facts as set out in the defendant’s
notice of application. Thus where the plaintiff’s affidavit differs from this
recitation of the facts, I have disregarded it.

MATERIAL FACTS

[3]            
The motor vehicle accident occurred on June 3, 2008, near the
intersection of Kingsway and Marlborough Avenue, Burnaby, BC. The defendant’s
motor vehicle rear ended the plaintiff’s vehicle when she was stopped due to
traffic congestion. There was minor damage to the plaintiff’s rear bumper that
was not repaired.

[4]            
The plaintiff deposed that her Honda was struck heavily and without
warning by the defendant’s jeep. The force of the impact threw her body
backwards and forwards. The plaintiff also deposed that she felt pain in her
neck and back, along with headaches and dizziness immediately after the
collision. During her examination for discovery the plaintiff testified that
she experienced these symptoms the day after the accident. However, the
plaintiff also attended a walk in clinic on the day of the accident and was
treated by Dr. Samaroo. Dr. Samaroo’s expert report, dated December 22, 2008,
indicates that the plaintiff reported headaches, dizziness, a sore neck and
tenderness in her upper back on June 3, 2008.

[5]            
Dr. Samaroo found there was full range of motion in the plaintiff’s
neck, shoulders and lower back on examination; however, there was tenderness in
the neck and upper back. The plaintiff was prescribed Motrin, an
anti-inflammatory pain killer, 600 mg to be taken twice daily. Dr. Samaroo
advised the plaintiff to apply heat to her neck and upper back, and recommended
some exercises for her neck and upper back.

[6]            
The plaintiff’s symptoms continued for the next week. Due to the pain
the plaintiff had trouble sleeping. She attended the medical clinic again on
June 10, 2008. Dr. Samaroo’s report indicates that the plaintiff continued to
complain of headaches and a sore neck. On examination her neck was tender to
palpation. The plaintiff continued to have full range of motion in her neck,
back and shoulders. Dr. Samaroo advised the plaintiff to continue taking Motrin
twice a day. Dr. Samaroo scheduled another appointment for the plaintiff on
July 7, 2008; however, the plaintiff did not keep this appointment.

[7]            
The plaintiff’s neck and back injury began to resolve within a couple of
months of the accident and were completely resolved within six to nine months.
The plaintiff’s headaches gradually resolved over the year following the
accident by decreasing in frequency and intensity. The last time the plaintiff
had trouble sleeping due to accident-related pain was a couple of months after
the collision.

[8]            
The plaintiff suffered from anxiety prior to the accident; however, she
was a little more emotional for a couple of months after the collision.

[9]            
The plaintiff did not seek therapy for her injuries and last saw her
doctor in late November 2008. At that time she had unrelated complaints but
mentioned that she had been having headaches since the accident. There is no
evidence that the plaintiff’s injuries interfered with her daily life
activities except running. For two or three months after the accident the
plaintiff was unable to run for exercise.

[10]        
At the time of the accident the plaintiff was in her early 30’s and was
unemployed. She moved to Vancouver to attend the British Columbia Institute of
Technology.

[11]        
Lastly, Dr. Samaroo’s opinion is that the headaches, dizziness, neck and
upper back pain can be reasonably related to the soft tissue injuries arising
out of the motor vehicle accident. In addition, Dr. Samaroo comments on the
impact of the collision on the plaintiff’s lifestyle as follows:

Based on my examination, and the
history and the examination of the physician who saw the patient on November
29, 2008, there was no indication that she suffered any lower back pains or
injuries as a result of the motor vehicle accident. I am not aware of any
functional limitations that this patient had with respect to her injuries, as
related to domestically, recreationally, or vocationally. Headaches, following
the motor vehicle accident, are not uncommon. They take anywhere from weeks to
months after the accident to resolve. I will expect her headaches to resolve
sometime within the next six to twelve months.

ARGUMENT

[12]        
The defendant argues that the plaintiff suffered very minor soft tissue
injuries as a result of a low velocity collision. These injuries essentially
resolved fairly soon after the accident with only occasional flare ups
thereafter. Apart from a limited impact on her ability to run, there was no
adverse interference with her lifestyle. Accordingly, the defendant says
general damages between $1,000 and $3,500 should be awarded.

[13]        
In support of this position, the defendant relies upon Stapley v.
Hejslet, 2006 BCCA 34 [Stapley]; Butler v. Blaylock Estate,
[1981] B.C.J. No. 31 (S.C.) [Butler]; Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.) [Price]; Bagasbas v. Atwal, 2009
BCSC 512; Saluja v. Wise, 2007 BCSC 706; Dao v. Vance, 2008 BCSC
1092; and Fleary v. Kan (10 March 2011), Vancouver M101408 (S.C.).

[14]        
The plaintiff agrees this was a modest accident with minor injuries;
however, she maintains her injuries took the normal course for soft tissue
damage and thus there is no basis for any suspicion of malingering or a reason
to doubt her veracity. The plaintiff followed her doctor’s advice to rest,
apply heat and take anti-inflammatory medication. It is the plaintiff’s
submission that general damages in the range of $10,000 to $15,000 are
appropriate in the circumstances.

[15]        
In support of this position, the plaintiff relies upon Bartley v.
Buckley, 2005 BCSC 1374; De Leon v. Harold, 2010 BCSC 1802; and Darji
v. Regimbald, 2006 BCSC 834.

DECISION

[16]        
Based on the evidence led in this summary trial application, I find
there is no reason to doubt the veracity of the plaintiff’s claims that she
suffered pain in her neck and upper back, as well as headaches and dizziness,
immediately following the accident and for a period of six to nine months
thereafter. Moreover, there is no evidence to contradict Dr. Samaroo’s opinion
that these symptoms arise from soft tissues injuries caused by the accident.
There is no scientific justification for concluding that a low velocity
collision is incapable of causing injuries. The minor nature of the collision
is only one factor to consider when assessing the severity of the injuries
suffered by the plaintiff. While the medical evidence before the court is
primarily based on the subjective complaints of the plaintiff, there is no
evidence that the plaintiff’s symptoms continued beyond what would normally be
expected for these types of soft tissue injuries. Thus the caution expressed in
Butler and Price is not relevant on the facts of this case.

[17]        
When assessing non-pecuniary damages, the court is not confined to the
seriousness of the injuries suffered by the plaintiff. It is the impact of the
injuries on the particular plaintiff that must be assessed: Stapley at
para. 45. Some of the factors the court may consider when determining the
quantum of non-pecuniary damages are summarized by the Court of Appeal in Stapley
at para. 46. These include the age of the plaintiff, the nature of the
injury, the severity and duration of the pain, disability caused by the
injuries, emotional suffering, loss or impairment of lifestyle, impairment or loss
of life, impairment of family, marital or social relationships, and impairment
of physical and mental abilities.

[18]        
The authorities relied upon by the parties provide some indication of
the quantum of non-pecuniary damages awarded in relatively similar circumstances.
However, as discussed in Stapley, each case must be decided on its own
facts, taking into consideration the particular circumstances of the plaintiff.

[19]        
Turning to the factors relevant to the assessment of non-pecuniary loss,
it is apparent that the injuries suffered by the plaintiff were of a minor
nature. While she experienced pain and required medication to alleviate this
symptom, the plaintiff had full range of motion in her back and her neck
throughout her convalescence. In addition, the symptoms experienced by the
plaintiff were not sufficiently severe that she required passive modalities
such as physiotherapy, massage therapy or chiropractic manipulation. The
plaintiff last saw her doctor for pain due to accident-related injuries in late
November 2008, some five months after the collision. The plaintiff’s injuries
resolved entirely after a relatively short period of six to nine months. The
headaches persisted for about a year; however, they decreased in intensity and
severity over time. The plaintiff has no residual effects from the injuries.
Lastly, the plaintiff’s lifestyle was only moderately impacted by the injuries.
She was unable to run for a couple of months.

[20]        
The plaintiff suffered some emotional anxiety as a result of the
accident and had sleep difficulties. The sleep problem resolved quickly and the
increased anxiety was modest in severity and did not persist over a lengthy
period of time.

[21]        
Lastly, the plaintiff is a relatively young woman who does not suffer
from any particular emotional or physical condition that rendered or could have
rendered the injuries she suffered more disabling.

[22]        
Having regard to the range of non-pecuniary damages awarded in the cases
cited by the parties, and the particular circumstances of the plaintiff, I find
an award of $7,000 is appropriate.

COSTS

[23]        
While the plaintiff has been successful in this summary trial
application, the damages are within the jurisdiction of the provincial court.
As a consequence, Rule 14-1(10) may apply. Because the parties did not address
costs in their submissions, either party has leave to make submissions on the
application of Rule 14-1(10) to this proceeding. I retain jurisdiction to make
an award for costs should the parties choose to make submissions in respect of
this matter.

“Bruce J.”