IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110608

Docket: M100734

Registry:
Vancouver

Between:

Carrie 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. Although the parties argue the court should draw different
inferences from the facts, the material facts are not in dispute. Accordingly, I
agree that the summary trial procedure is appropriate. The plaintiff’s claim is
based on a relatively minor accident that led to 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.

MATERIAL FACTS

[2]            
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 vehicle in which the plaintiff was a passenger
while the vehicle was stopped due to traffic congestion. The plaintiff’s sister
was driving the vehicle. There was minor damage to the rear bumper of the
vehicle. The plaintiff was able to exit from the vehicle without assistance;
she was shaken up and tearful.

[3]            
After the accident, both the plaintiff and her sister went to a walk in
medical clinic. The plaintiff saw Dr. Samaroo and complained of neck pain,
upper back pain and lower back pain. She also complained of a headache and
dizziness. Dr. Samaroo prescribed heat, exercise, and 600 mg of Motrin twice
per day. The plaintiff again saw Dr. Samaroo on June 10, 2008. She complained
of dizziness that was intermittent, headaches, a sore neck and difficulty
sleeping. On both occasions there was tenderness in her neck and back but full
range of motion upon examination. While the plaintiff returned to see a doctor
at the clinic on June 14, 2008, this visit was merely to replace a prescription
for Effexor that she had lost.

[4]            
The plaintiff followed the advice of her doctor; she took Motrin for the
pain and applied heat to her neck and back. She did not receive physiotherapy,
massage therapy or chiropractic treatments for her injuries. Instead, the
plaintiff exercised at the gym.

[5]            
The plaintiff’s nausea and dizziness did not persist long after June 10,
2008, which was a week after the accident. The headaches were severe and
continuous for the first month, but they resolved within six months after the
collision. The back and neck pain slowly improved and completely resolved by
November 2010. In the first year after the accident the plaintiff’s neck pain
was constant but it began to improve in the second year when it became sporadic
and was only aggravated by physical activity. The back injury followed a
similar pattern to the neck. The plaintiff also suffered some sleeplessness
after the accident; however, she does not recall how long this problem
persisted.

[6]            
The plaintiff suffered emotional difficulties as a result of the
accident. As a result of anxiety the plaintiff avoided unnecessary car trips.
The plaintiff’s anxiety while driving persisted for three months after the
accident. Although the plaintiff deposes that she continues to be a little
anxious when driving, she drives to Fort St. John on a regular basis to work as
a house cleaner without any apparent difficulties. The plaintiff agreed during
her examination for discovery that a visit to her doctor in June 2009, wherein
she reported an increase in her symptoms of anxiety, was not accident-related.

[7]            
The plaintiff secured an expert report from Dr. Parhar dated June 25,
2010. Dr. Parhar works in the same medical clinic as Dr. Samaroo; he first saw
the plaintiff in June 2010. While Dr. Parhar’s opinion that the plaintiff’s
headaches, neck pain and back pain most likely resulted from soft tissue
injuries occasioned by the accident is not disputed, his opinion that the
plaintiff also suffered a shoulder injury is not supported by the evidence.
Moreover, the plaintiff does not claim that her right shoulder injury is
related to the accident. There is also no evidence to support Dr. Parhar’s
assessment of the impact of the accident-related injuries on the plaintiff’s
employment or on her lifestyle and her social relationships. Nor is there any
evidence to support the plaintiff’s inability to do housework or to travel by
vehicle for lengthy periods of time. The only activities the plaintiff deposes
were disrupted by her injuries were running and swimming. The plaintiff resumed
running in or about November 2010.

ARGUMENT

[8]            
The defendant argues that a maximum award of $5,000 is appropriate for
non-pecuniary damages due to the minor nature of the injuries and the
collision. The defendant maintains that there is no medical evidence to explain
the lengthy recovery period for these minor soft tissue injuries. Further, the
defendant says the plaintiff did not undergo any therapies for her injuries and
there is no corroboration concerning the impact of the injuries on her
lifestyle.

[9]            
In support of this position, the defendant relies upon Stapley v.
Hejslet, 2006 BCCA 34; 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.);
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.).

[10]        
The plaintiff argues the appropriate range for non-pecuniary damages in
this case is $15,000 to $18,000. The soft tissue injuries to the neck and back
took two years to completely recover. The plaintiff also suffered some anxiety and
headaches due to the accident.

[11]        
In support of her submission, the plaintiff relies upon Lubick v. Mei,
2008 BCSC 555; Darji v. Regimbald, 2006 BCSC 834; and Myers v. Leng,
2006 BCSC 1582.

DECISION

[12]        
The facts of this case are almost identical to those of Dolha v. Heft,
2011 BCSC 737 [Dolha], in which I addressed a claim for
non-pecuniary damages by the plaintiff’s sister that arose out of the same
accident. The plaintiff’s injuries are very similar to the injuries suffered by
her sister in the collision. Both the plaintiff and her sister suffered
dizziness and headaches. Both the plaintiff and her sister suffered neck and
back pain. The plaintiff’s back pain involved her lower and upper back while
her sister’s back injury only involved the upper back. Both the plaintiff and
her sister had some increased anxiety while travelling in vehicles after the
accident.

[13]        
The plaintiff and her sister were treated by the same physician and were
given identical advice. Neither the plaintiff nor her sister sought treatment for
their injuries in the form of physiotherapy, massage therapy, or chiropractic
therapy. The plaintiff’s lifestyle was only marginally impacted by these
injuries. Similar to her sister, the plaintiff was unable to carry on her
normal running exercise while she recovered from the injuries. In all other
respects it does not appear that the plaintiff’s social life, her work and her
recreational activities were affected by the injuries.

[14]        
Accordingly, the reasoning in Dolha is applicable to the case at
hand and the measure of non-pecuniary damages ($7,000) provides a guideline for
the appropriate award in this case.

[15]        
The primary difference between the plaintiff and her sister is the
length of time it took to recover from the injuries caused by the accident.
While the plaintiff’s evidence is that her neck and back did not fully recover
until November 2010, her sister completely recovered from her injuries within
six to nine months after the accident.

[16]        
The medical evidence in this case is sufficient to establish a causal
connection between the accident and the injuries claimed by the plaintiff.
However, there is no medical evidence that would justify such a lengthy
recovery period for such minor soft tissue injuries. The only objective sign of
injury is tenderness in the neck and back observed by Dr. Samaroo upon
examination. These symptoms were evident in June 2008. Thereafter there is no
medical evidence of continuing injury. The only evidence of persisting injury
is the subjective evidence of the plaintiff that she continued to have pain in
her neck and back for over two years after the accident.

[17]        
It is not the law that if a plaintiff cannot show objective evidence of
continuing injury that she cannot recover. If the pain suffered by the
plaintiff is real and continuing and resulted from the injuries suffered in the
accident, the plaintiff is entitled to recover damages: Butler v. Blaylock
Estate, [1983] B.C.J. No. 1490 (C.A.).

[18]        
However, where there is little or no evidence to support the plaintiff’s
claims of continuing pain from the accident-related injuries, a reasonable
inference is that the pain was either very minor or non-existent. The plaintiff
maintains her pain symptoms persisted for over two years, but she did not seek
out further treatment from her physician after June 10, 2008. Nor did she seek
a referral for massage therapy, physiotherapy or chiropractic treatments. In
addition, her physical activities were only marginally affected by the pain she
suffered and the plaintiff was able to continue working. There was also no
disruption to her social relationships. For the most part the plaintiff’s life
was unaffected by the pain she experienced from the injuries caused by the
accident. The plaintiff’s affidavit also describes the pain she experienced in
very vague, generalized terms. She does not provide a description of the nature
or severity of the pain that would permit the court to evaluate its impact on
her mentally or physically.

[19]        
While I have no doubt that the plaintiff experienced some pain from the
injuries caused by the accident, it is apparent that after the critical stage
of her injuries, the pain was so nominal that she did not seek out further
treatments for it. Nor did the pain have any serious impact on her lifestyle.

[20]        
The plaintiff’s injuries were somewhat more serious than her sister’s
because both her upper and lower back were involved. However, I find that
beyond a period of six to nine months the pain she suffered cannot be regarded
as affecting her life in any manner. Accordingly, based on the minor nature of
the soft tissue injuries, the low velocity of the collision, and the minimal
impact of the injuries on the plaintiff’s lifestyle, an award of $10,000 is
appropriate for non-pecuniary damages in all of the circumstances.

COSTS

[21]        
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.”