IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110830

Docket: M063788

Registry:
Vancouver

Between:

Yatit
Y. Singh

Plaintiff

And

Leslie
Clay, Joseph S. Chow Ltd. and
Bradley Axam

Defendants

–
AND –

Docket:
M082414

Registry:
Vancouver

Between:

Yatit
Y. Singh

Plaintiff

And

Insurance
Corporation of British Columbia,
John Doe and Jane Doe

Defendants

–
AND –

Docket:
M105002

Registry:
Vancouver

Between:

Yatit
Y. Singh

Plaintiff

And

Robert
Stinchcombe and Rita Chiavatti

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
The plaintiff Mr. Singh claims damages arising from injuries he
received in four motor vehicle accidents.  The dates of the accidents are October
18, 2004, September 12, 2005, September 18, 2007 and November 1, 2008.

[2]            
Liability for each accident is not in dispute.

[3]            
The defendant Insurance Corporation of British Columbia
("ICBC") in action M082414 has raised s. 24(5) of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231 as a defence.  ICBC says the plaintiff
is not entitled to judgment against it in that action because of his failure to
take all reasonable steps to ascertain the identity of the owner or driver of
the vehicle which rear-ended his vehicle.

[4]            
In addition the plaintiff was involved in an at-fault accident on March
19, 2007.  The defendants assert he contributed to his injuries as a
consequence of his own negligence and hence they are not responsible in damages
for any aggravation of such injuries caused by the at-fault accident.

[5]            
I turn to the circumstances of each of the accidents.

October 18, 2004 (the
“first accident”)

[6]            
The plaintiff was travelling east on 96^th Avenue, Surrey, on
his way to work.  He was driving his pickup truck.  As he travelled he was
required to slow his vehicle for an ambulance which pulled out in front of his
vehicle.  A second ambulance followed and he was required to stop.  When he did
so he was rear-ended by the defendant’s vehicle.  The drivers got out and
exchanged information.  The plaintiff did not proceed to work but returned
home.

[7]            
The plaintiff testified that at the scene of the accident he was shocked,
nervous and “tingly” and that he later developed a headache.  In the hours
following the accident he testified he developed soreness in his lower back and
in the left side of his shoulders and left arm.  He saw his family doctor, Dr. Burak,
that day.  He was put on light work but testified he could not perform light
duties as his work entails physical exertion which he felt he could not do.

[8]            
He was off work for three days and, on the advice of his physician,
commenced physiotherapy treatments within the next several weeks.  I will
describe the progression of the plaintiff’s injuries later in this decision.

September 12, 2005 (the
“second accident”)

[9]            
Again the plaintiff was driving to work, proceeding in an easterly
direction on the Fraser Highway.  As he approached a construction zone while proceeding
down a hill he was required to stop his vehicle.  He testified he heard what
sounded like a semi truck decelerating behind him.  He said he braced himself,
putting both feet on the brakes.  The truck hit the plaintiff’s vehicle in the
rear, pushing it into the vehicle in front of him.

[10]        
The plaintiff testified he immediately felt pain in his arm, developed a
headache and “was completely sore”.  He said that evening he could not lift his
head off the bed, that his left arm was in a state of constant numbness, his
fingers tingled and this caused him to wake up several times during the night. 
He testified he developed regular daily headaches which “spiked” later in the
day and which continued up until about a year prior to the trial.  He said the
second accident intensified the effects of the injuries he received in the
first accident.

[11]        
The plaintiff took two days off as a result of the second accident.

March 19, 2007 (the “at-fault
accident”)

[12]        
The plaintiff was driving his Mazda pickup truck and proceeded to make a
turn at an intersection which was controlled by four-way stop signs.  In doing
so he hit another vehicle.  The plaintiff testified he was travelling between
20 and 30 km/h at the time.

[13]        
He testified that prior to this accident there had been no improvement
to the numbness and tingling he felt in his left arm and hand or in the
headaches he was experiencing.  He said he did not attend Dr. Burak as a
result of this accident as the symptoms arising from the first two accidents did
not change.

September 18, 2007 (the
“third accident”)

[14]        
The plaintiff was driving south on 140^th Street with his wife,
intending to visit his sister-in-law.  Mr. Singh testified that as he was
about to make a right turn into the sister-in-law’s driveway his vehicle was
hit from the rear by a following vehicle.  He noticed it was a black car.  He testified
he first asked his wife if she was okay, then he straightened his vehicle out
to park it, expecting the other driver would do the same.  He was wrong in that
assumption.  The driver of the second vehicle drove away without stopping, as
the plaintiff exited his vehicle.  The plaintiff’s wife was able to obtain two
of the letters from the vehicle’s license plate number.

[15]        
The plaintiff testified that after he exited his vehicle he ran down the
block to a man and woman who had witnessed the accident.  The female was
hesitant to speak with him.  The male gave the plaintiff his name and phone
number and told him the driver was a Caucasian female with whitish hair and that
he had observed she was smoking.

[16]        
The plaintiff then went to his sister-in-law’s home.  He testified that
by that time he had developed a “pounding headache”.

[17]        
He telephoned ICBC and was advised to telephone the police and obtain a
file number.

[18]        
The following day he attended the police station at Guildford Mall.  He
was advised that with only a partial plate number there was nothing the police could
do to assist him.

[19]        
He then contacted his lawyer’s office.  He was advised to post flyers in
the vicinity of the accident asking anyone who had witnessed the accident to
contact him.  Over the next several days he posted some 20 flyers in the
immediate vicinity.  He received no response.

[20]        
In cross-examination it was suggested to Mr. Singh he could have
obtained the licence plate number.  He acknowledged he could have done so but said
he did not look at the licence plate as he did not expect the driver to drive
off as she did.

[21]        
The plaintiff testified there was neither improvement to his left arm
and shoulder before the September 18, 2007 accident nor worsening of his
symptoms after.  Again, in cross-examination, Mr. Pici suggested Mr. Singh
reported a “small” increase in symptoms to his physician after this accident.  Mr. Singh
responded he did not recall doing so.

November 1, 2008 (the
“fourth accident”)

[22]        
On November 1, 2008 the plaintiff’s vehicle was rear-ended by a pickup
truck as it was stopped at a red light while northbound on Edmonds.  The
plaintiff testified that at the time he still had symptoms from the first two
accidents and that as a result of the fourth accident he felt “soreness” in his
lower back.

[23]        
Mr. Singh testified the lower back soreness resolved itself within
several months of the fourth accident.

[24]        
He testified his problem with recurring headaches resolved itself in or
about the spring of 2010 – about 12 months prior to the trial.

THE MEDICAL EVIDENCE

[25]        
The plaintiff has been attended by his family physician, Dr. Burak
and has been seen by Dr. Robert Keyes, a physician specialising in
neurology and neurophysiology and by Dr. Andrew Travlos, a physician specialising
in physical medicine and rehabilitation.  It appears from the medical records
he also sometimes saw Dr. Dodek, a colleague of Dr. Burat.

[26]        
Dr. J. Lorne, a physician managing Dr. Burak’s medical
practice, prepared a medical report dated October 3, 2008 following a review of
Mr. Singh’s medical file.  Drs. Keyes and Traylos prepared medical reports
which were admitted into evidence at trial.  Both were cross-examined on the
opinions contained in their respective reports.

1.       Dr. Lorne’s
Report

[27]        
As stated, Dr. Lorne reviewed Dr. Burak’s medical file and the
notes made by Dr. Burak relating to the accidents of October 18, 2004, September
12, 2005 and September 18, 2007.  Dr. Burak last saw Mr. Singh June 23,
2008, some four months before the fourth and final accident.  Some of the more
notable comments in Dr. Lorne’s report of October 3, 2008 include:

–                
Mr. Singh reported that immediately after the accident he
experienced low back pain and left anterior knee pain.  Later that day, he
developed a continuous headache, sore shoulders (left worse than right), and a
stiff upper back.

–                
Mr. Singh was diagnosed with a Grade II whiplash associated
disorder and a left lateral knee strain.  He was recommended to rest, perform modified
duties at work for two weeks, physiotherapy, home stretching exercises, and
Tylenol as needed for pain.

–                
Mr. Singh returned on November 3, 200[4] for follow-up of
his motor vehicle accident with Dr. D. Dodek.  Mr. Singh reported
continued low back soreness, and left shoulder pain.  His headaches were also
still present, but were improving… He was diagnosed with improving whiplash,
and advised to go for physiotherapy…

–                
Mr. Singh was seen again by Dr. Dodek in the office on
November 17, 200[4].  He still complained of low back pain (especially with
sitting/standing) and left should pain with no numbness or tingling in the
hands.

–                
The patient reported a flare up of his injuries from the previous
motor vehicle accident (October 18, 2004).  These symptoms included headaches,
and left arm numbness/tingling.

–                
The patient reported that prior to the September 19, 2005
accident [should read September 12, 2005], he was still experiencing left
shoulder pain, tingling and lack of strength from his previous October 18, 2004
accident.

–                
Mr. Singh was diagnosed with a Grade II cervical spine and
thoracic spine whiplash associated disorder and a left rotator cuff strain.

–                
On [September 30, 2005], the patient reported a painful left
lateral neck, left shoulder pain to the elbow, right posterior-lateral neck
stiffness, and bifrontal headaches. … The diagnosis remained the same, and
the patient was advised to start physiotherapy and return to work.

–                
Mr. Singh was seen again by Dr. Burak in the office on
December 14, 2005.  He reported much improved neck pain, but he still
complained of intermittent numbness in the left 4^th and 5^th
fingers.  The patient reported feeling 50-60% improvement of his injuries.

–                
The patient still complained of left neck and shoulder pain [on January
9, 2006].

–                
Mr. Singh was seen on January 23, 2006 with the same
injuries, reporting to be 55-60% recovered.  The patient had recently noticed
sudden twitches in the left arm and shoulder.

–                
Mr. Singh reported having some success with acupuncture
treatment – relieving 60-70% of his left shoulder ache [February 27, 2006]. 
Other symptoms and examination were unchanged.  The patient was diagnosed with
left peripheral ulnar neuropathy with a good prognosis.

–                
Mr. Singh was seen on June 12, 2006 reporting to be 85-90%
recovered.

–                
On November 20, 2006 Mr. Singh was seen for follow-up of his
motor vehicle accidents.  He still complained of intermittent numbness in his
left 4^th and 5^th fingers.

–                
The left shoulder had a full range of motion, with tenderness
over the supraspinatus muscle.  The patient was 90% recovered.

–                
On February 12, 2007 the patient was referred to the neurologist Dr. Keyes
due to persistent intermittent numbness and weakness in the left 4^th
and 5^th digits, as well as an involuntary twitch in the left supraspinatus
muscle.

–                
The patient was seen for a final motor vehicle accident follow-up
by Dr. Burak on January 14, 2008.  At this time the patient was using a
TENS unit to manage his symptoms (numbness left 4^th/5^th
digit, and scalene muscle spasm).

[28]        
I note that the dates of referred to as the dates of the second and
third accidents are incorrect.  Dr. Lorne summarized his review as
follows:

In Summary [sic], Mr. Singh
was involved in a motor vehicle accident on October 18, 2004. According to
the patient, and to Dr. Burak’s chart notes, this accident resulted in
persistent left 4^th and 5^th finger numbness, and left
scalene muscle spasms.  Two further motor vehicle accidents on September 19,
2005 and October 22, 2007, aggravated these symptoms.  Neurologist, Dr. Keyes,
diagnosed Mr. Singh with thoracic outlet syndrome with intermittent
scalenous muscle spasm. Dr. Keyes reported “no indication of any
significant permanent neurological injury”.  In accordance with Dr. Keyes [sic]
consult it is unlikely that future deterioration of this injury will occur. 
I will leave the opinion regarding the possibility for full recovery of these
injuries to the expertise of Dr. Keyes.  As Mr. Singh has decided not
to continue with physiotherapy, the only anticipated future care requirements
or costs at this time would be those related to potential botox treatments.  It
is not clear from the chart notes, how or if Mr. Singh’s injuries affect
his past, present, or future recreational pursuits.  The patient reported
missing two scheduled days of work in total.  [Emphasis added]

[29]        
According to Dr. Burak’s clinical notes, the plaintiff’s symptoms of
fourth  and left scalene muscle spasms and fifth finger numbness commenced
after the first accident and these symptoms were aggravated by the second and
third accidents.

2.       Dr. Robert
Keyes’ Reports

[30]        
Dr. Keyes prepared reports dated October 14, 2008 and March 10,
2011, both of which were referred to at the trial.  As his latter report was
prepared to comply with the new Supreme Court Civil Rules, I will refer
to it.  Other than changes made to comply with the Rules, the reports are
essentially the same.

[31]        
As noted, Dr. Keyes practises in the specialty field of neurology
and clinical neurophysiology.  He was asked to provide an opinion on the causes
and mechanisms of the plaintiff’s injuries as well as whether there would be
any permanent or partial disability arising from the injuries.  Dr. Keyes’
expertise was admitted by the defendants.

[32]        
Dr. Keyes saw the plaintiff at the request of Dr. Burak on
July 9, 2007.  At the time of the examination Dr. Keyes noted:

The patient presented with a
number of different neurological and non neurological symptoms at the time of
the July 9, 2007 clinical neurological assessment and neurophysiological
assessment.  The patient complained of persistent and fluctuating neck pain &
stiffness; the patient complained of persistent & fluctuating left shoulder
pain; the patient complained of intermittent left upper limb pain; and the
patient complained of intermittent left upper limb numbness, tingling and
weakness.  The patient reported that all of the aforementioned symptoms
occurred following a motor vehicle accident that occurred in 2004.  The patient
also reported that he developed a worsening of the pre-existing neck, left
shoulder and left upper limb symptoms following a second motor vehicle accident
that occurred in 2005.  Finally the patient reported that despite a variety of
physiotherapy and other treatments, his neck, left shoulder and left upper limb
symptoms had neither improved nor worsened since the time of the first motor
vehicle accident and the clinical neurological assessment and
neurophysiological assessments of July 9, 2007.

[33]        
Following his examination of Mr. Singh, Dr. Keyes formed the
opinion the plaintiff’s symptoms were the result of thoracic outlet syndrome
which was caused by the first accident and which was aggravated by the second accident. 
He stated:

It was my opinion at that [sic]
time of the July 9, 2007 clinical neurological assessment that the patient’s
reported symptoms of left shoulder pain and left upper limb pain, numbness,
tingling and weakness were most probably due to a left thoracic outlet
syndrome.  Specifically, it was my opinion that the patient had intermittent
spasm of the scalenus muscles in the left thoracic outlet anatomic space which
in turn would cause intermittent irritation with permanent injury or damage of
the neurovascular bundle in the left thoracic outlet space.  It was my opinion
that the intermittent irritation of the neurovascular bundle in the left
thoracic outlet anatomic space would be consistent with longevity of the
patient’s self reported left upper limb symptoms; the normality of the previous
laboratory investigations; the normality of the previous clinical neurological
examination; the normality of the previous left upper limb neurophysiological
study; the minimal clinical neurological findings identified on July 9, 2007;
and the borderline neurophysiological findings identified on July 9, 2007.

[34]        
Dr. Keyes testified he used the word “permanent” in the above
paragraph because of his findings on the nerve conduction tests he performed
during his July 7 assessment of the plaintiff.  He testified that the length of
time over which the muscle spasms had occurred and the frequency of the spasms
contributed to his assessment there was “permanent” damage to the neurovascular
bundle in the left thoracic space.  He testified that at the time of his
examination of the plaintiff his symptoms had been affecting him for in excess
of two years.

[35]        
In cross-examination however Dr. Keyes confirmed his diagnosis and
opinion the plaintiff did not sustain “any significant or permanent injuries
… to his peripheral nervous system as a result of either the 2004 or 2005
motor vehicle accidents”.

[36]        
In his report Dr. Keyes gave the following opinions:

… It is the combination of the patient’s reported symptoms,
the clinical findings and the presence of positive thoracic outlet manoeuvres
that permits a diagnosis of thoracic outlet syndrome as a cause for any given
patient’s neck, shoulder and upper limb symptoms.  Thus, it was my opinion at
the time of the July 9, 2007 clinical neurological assessment that the cause of
the patient’s left upper limb symptoms was most probably a left thoracic outlet
syndrome secondary to intermittent scalenus muscle spasm associated with
intermittent and variable irritation without permanent injury or damage of
the neurovascular bundle in the left thoracic outlet anatomic space.  It was my
opinion that the left thoracic outlet syndrome first developed following the
2004 motor vehicle accident and was aggravated by the 2005 motor vehicle
accident.  At the time of the July 9, 2007 clinical neurological assessment it
was not possible to determine if either of the two motor vehicle accidents was the
more responsible for the patient’s ongoing symptoms and signs.

…It was my opinion that the
minimal sensory findings in the left fingers and left hand combined with the
suggestive findings on the neurophysiological study and the patient’s self
reporting longstanding left upper limb symptoms all supported a diagnosis of
left thoracic outlet syndrome as a cause for the left upper limb symptoms. It
was also my opinion that the patient had sustained no significant or permanent
neurological injuries on [sic] any kind as a result of either the 2004
or 2005 motor vehicle accidents. It was my opinion that the patient had
sustained musculoligamentous injuries to the cervical spine and upper torso as
a result of both the 2004 and 2005 motor vehicle accidents.  It was my
opinion that the patient should be treated with physiotherapy directed at a
diagnosis of left thoracic outlet syndrome secondary to intermittent left
scalenus muscle spasm…  [Emphasis added]

[37]        
Dr. Keyes considered the plaintiff’s symptoms would improve over time
and likely resolve:

…It was my opinion that the patient’s symptoms would
probably improve and hopefully resolve over time with the appropriate physical
therapy type treatments indicated.

… It was my opinion following the results of the radiological
studies that the aforementioned clinical diagnoses and opinions detailed at the
time of the clinical neurological assessment and neurophysiological assessment
of July 9, 2007 were the most likely causes for the patient’s ongoing
symptoms. It was my opinion that the patient would almost certainly respond
to non surgical treatments for left thoracic outlet syndrome with the
expectation that the symptoms would improve and probably resolve over time. 
The patient was then referred back to the care of the patient’s family
physician.

…

It was my opinion that the
patient would most probably improve with appropriate physiotherapy treatments. 
It was my opinion that the patient’s short term and long term neurological
prognoses were very good to excellent.  It was my opinion that the patient’s
recreational and employment activities would not be significantly affected over
the long term because of any of the aforementioned difficulties. [Emphasis
added]

[38]        
Dr. Keyes noted the patient did not tell him about the September
18, 2007 accident.  Dr. Keyes commented that:

… repeated injuries to the same
areas of the neck, upper torso and shoulders by the same mechanism would be
expected to result in similar symptoms and a more prolonged recovery time when
compared to those individuals who experienced only one injury.

3.       Dr. Andrew
Travlos’s Report

[39]        
Dr. Travlos was retained by Mr. Singh’s counsel to conduct an
examination of Mr. Singh, to review the medical records and to provide an
opinion on causation of the injuries, his diagnosis, prognosis, suggested treatment
and to comment on activity limitations the injuries might have on Mr. Singh.  Dr. Travlos
prepared a report dated April 29, 2009 which was tendered in evidence at
the trial.

[40]        
Dr. Travlos had reviewed Dr. Burak’s clinical records and Dr. Keyes’
report.  He examined Mr. Singh on the date of his report.

[41]        
I found Dr. Travlos to be qualified to offer opinion evidence to
the Court on the subject matters contained in his medical-legal report dated
April 29, 2009.  Dr. Travlos is a qualified and registered Physical
Medicine and Rehabilitation specialist in B.C.  He testified the difference
between his area of specialty and that of a neurologist was that his specialty
focused more on rehabilitation than on diagnostics.

[42]        
In essence, Dr. Travlos agreed with Dr. Keyes’ diagnosis that Mr. Singh
suffered from left thoracic outlet syndrome.

[43]        
Dr. Travlos’s report included these comments and opinions:

It is my opinion that Mr. Singh’s current symptoms are,
indeed, consistent with the opinions of Dr. Keyes.  Mr. Singh
definitely does have a left thoracic outlet syndrome accounting for these
pains…

…

Mr. Singh likely has a functional thoracic outlet
syndrome that is being intermittently activated to entrap the nerves of the
thoracic outlet as they enter the upper extremity.  This is hence the reason
for the intermittent numbness and tingling that he has.  Thoracic outlet
syndromes are typically associated with pains around the left shoulder girdle,
just as Mr. Singh describes, and they also cause a sensation of heaviness
and tingling down the arm just as Mr. Singh complains of.

…

… He has now had symptoms for four and a half years and
there is no real expectation that further treatment is going to magically cure
his symptoms.  Nevertheless, his symptom complaints can be improved upon to
assist in reduction of their severity, frequency, and duration…

…

It is my opinion that Mr. Singh’s
current symptoms are residual from the injuries he sustained with these
accidents.  It is difficult to know just when the arm symptoms started in terms
of whether they arose following the first or second accident.  If one assumes
the history to be correct, then the symptoms began with the first accident, but
when one looks at the records, it would appear that the arm symptoms started
after the second accident. In any event, the majority of his complaints
were a result of a combination of both the first and second accidents.  It
appears that the third and fourth accidents were of much lesser severity, but
may have played a role in perpetuating the problem…  [Emphasis added]

[44]        
Dr. Travlos recommended Mr. Singh would benefit from further
treatment for his symptoms.  He suggested a structured conditioning program,
medication to improve his sleep and in his medical-legal report that, as a
final option, Mr. Singh should consider an injection of botulinium toxin. 
At trial Dr. Travlos testified he no longer strongly recommended such
injection treatment – it was simply an option for Mr. Singh to consider.

[45]        
Dr. Travlos drew the following conclusions regarding Mr. Singh’s
prognosis:

…Mr. Singh is capable of doing chores and activities
around the home.  It is quite likely that certain types of activities will be
more likely than not to trigger his symptoms, but he is and will remain able to
do the majority of home chores.  He may have to pace out the activities or
return back to the activity if needed at a later time.  This may, however,
limit what he can and cannot do, and there may be chores and activities around
the house that he prefers to have others do for him.  He may well have to
employ people to do certain types of work of a heavier nature.  He would
definitely be challenged to do home renovations or decorating, such as
painting.

Mr. Singh should be encouraged to participate in
recreational activities as he desires.  I would not specifically restrict him
from doing so.

… Mr. Singh is capable of
continuing to work as he is doing on a full time capacity. It is probable
that these symptoms are affecting aspects of his work but he should remain
gainfully employed.  If he were to lose this job for whatever reason, he would
need to avoid work that required a lot of overhead reaching activities as these
would definitely trigger his symptoms and he would have difficulty maintaining
such work.  In other words, Mr. Singh’s access to the unrestricted job
market will be affected by his symptoms if he finds himself in need of
alternative work.  He is nevertheless capable of gainful, full time employment
and should remain so into the future. There is no reason for his situation
to deteriorate over time unless he has a new accident or injury.  His current
symptoms have therefore left him more vulnerable to further injury and a
prolonged recovery.  [Emphasis added]

[46]        
In cross-examination Dr. Travlos agreed (as did Dr. Keyes)
that thoracic outlet syndrome is a “disputed” diagnosis as it is a diagnosis
which cannot be substantiated by objective clinical testing.  Rather, it is a
diagnosis based on an assessment of the patient’s subjective complaints.  He
also agreed Mr. Singh did not report “numbness or “tingling” in his hands
until after November 2004, and that at the time he saw Mr. Singh, the
results of his neurological examination were normal.

[47]        
He further agreed Dr. Burak had noted in his clinical records that Mr. Singh
had reported he was 55% – 60% recovered by January 23, 2006 (“but was still
having left shoulder and hand tingling and weakness”) and that he had reported he
was 85% – 90% recovered by June 2006.  On review however I note from the
clinical records filed in evidence that Mr. Singh continued to complain of
hand and arm numbness subsequent to June 2006.  He advised Dr. Burak his
symptoms had become 10% – 15% worse following the accident of September 18,
2007 (the third accident).

THE PLAINTIFF AND THE
IMPACT OF THE INJURIES ON HIM

[48]        
I accept Mr. Singh to have been a credible witness.  I find he
did not over estimate his injuries or the impact they had on his ability to
perform his duties at work or the limitations he experienced in his daily
life.  His description of his limitations is generally consistent with that
provided to the physicians he has seen.  The odd difference is not surprising
given the number of accidents he has been involved in, the similarity of
symptoms which have persisted throughout to the date of trial and the passage
of time since the first and second accidents.

[49]        
My assessment of Mr. Singh is that he is a modest, unassuming plaintiff
who is struggling stoically to deal with his injuries.

[50]        
Mr. Singh is 39 years of age and married with two children, aged 7
and 10.

[51]        
He graduated from high school in 1992 and, after working for several
years, obtained a certificate from the B.C. Institute of Technology in entry
level auto mechanics.  He did that type of work for a period but did not stay
with it.  He has maintained an interest in the field and has done maintenance
work on his own and others’ vehicles as a hobby.

[52]        
After then working as a warehouse employee for a time he took a year-long
course to obtain a certification as an Electronics Technician.  The
certification allows him to do bench testing of equipment using proprietary
software, install video cameras, work on telephone lines and install
transformers.

[53]        
In or about 1998 he worked for a company which made receivers and
transmitters for satellite systems.  The job lasted for 1 ½ years until its
Burnaby, B.C., plant was closed and Mr. Singh lost his job.  He then took
a job with his present employer, a company which did contract work for his
former employer.  He testified the work force has shrunk from about 40
employees when he first commenced employment to 12 employees at present.  One
of the main causes for the reduction in the workforce was the loss of a major
customer a number of years ago.

[54]        
Mr. Singh presently acts in many capacities for his employer. 
While he is the only electronics technician employed, he also performs the job
functions of purchaser, production manager, shipper, receiver, and performs maintenance
functions.  He bench tests and programs machinery.

[55]        
Prior to the first accident, Mr. Singh was generally a healthy
person.  In particular he had no health issues with his left arm or with his
musculoskeletal system.  He was able to perform overhead tasks without
difficulty and without tingling or numbness developing in his left arm and hand.

[56]        
As a vocation, Mr. Singh has enjoyed working on automobiles.  He
has performed oil changes, changed out brakes and done other mechanical work
without assistance and in doing so he had no difficulty doing the overhead
reaching required.

[57]        
Mr. Singh testified that within months subsequent to the first
accident he began experiencing pain, numbness and tingling in his left arm and
shoulder when raising his arms to do overhead work while working under
machinery at work, and while typing on a keyboard.  These symptoms were
aggravated by the second accident and have continued to the present day.

[58]        
As a result of the injury he is required to take short breaks at work to
“shake out” the numbness and tingling.  His testified his employer tolerates
what he says is his reduced productivity as a result of these breaks.  He
testified his employer “was ok” with his taking breaks because it appreciated
the range of functions he was performing.

[59]        
Mr. Singh testified his arm felt “heavy” all the time.  Mr. Singh
testified he had looked for other jobs – particularly at Telus and BC Hydro – in
search of a position that would utilize his training as an electronics technician
but that such work would entail overhead lifting and he feels he cannot perform
such work.  He also testified there are not many jobs available in the field. 
His present intention is to stay with his current employer.

[60]        
The numbness and tingling to the left arm and hand has also had the
significant effect of waking him several times during the night.  This has been
an ongoing and persistent problem since the first accident.  It occurs nightly
and leaves him feeling tired throughout the day.

[61]        
The injuries have also had an effect on his daily family activities.  It
is difficult for him to lift his children while playing with them, takes longer
to assist in household chores such as vacuuming and cleaning and carrying
groceries, which he says are difficult for more than a few minutes without
resting his arm.

[62]        
The plaintiff’s description of the effect of his injuries on his daily
life was supported by the evidence of his brother-in-law, Mr. Alvir Ram.  Mr. Ram
testified as to the difficulties Mr. Singh had in doing automotive work
and when assisting him to paint Mr. Singh’s townhouse.

[63]        
I accept Mr. Singh’s evidence as to the effect the injuries have had on
him and his work and his family life.

THE PLAINTIFF’S POSITION

[64]        
The plaintiff argues that as required under s. 24(5) of the Insurance
(Motor Vehicle) Act, he took all reasonable steps to determine the
identity of the driver of the accident of September 18, 2007: Smoluk v.
Insurance Corp. of British Columbia (1993), 83 B.C.L.R. (2d) 328, 26
B.C.A.C. 23 (C.A.).

[65]        
In any event, the plaintiff says the injury to his left arm and shoulder
and his headaches were caused by the first accident and aggravated by the
second accident and that his injuries were not aggravated or affected by the
third accident.

[66]        
The plaintiff argues a range of non-pecuniary damages between $90,000
and $110,000 is appropriate, relying on: Cimino v. Kwit, 2009 BCSC 912 ($85,000);
Durand v. Bolt, 2007 BCSC 480 ($75,000); and Hooper v. Nair, 2009
BCSC 862 ($110,000).

[67]        
In addition, the plaintiff seeks an award of $616 for past loss of
income, between $85,000 and $110,000 for loss of future earning capacity, $1,000
for the cost of future care (botulinum injections and analgesic medications)
and $10,000 for loss of housekeeping capacity (future painting of townhouse).

THE DEFENDANT’S
POSITION

[68]        
The defendant ICBC agrees the appropriate approach to the assessment of damages
in this case is that set out by our Court of Appeal in Bradley v. Groves,
2010 BCCA 361, leave to appeal to S.C.C. refused, 2011 CarswellBC 890.  The
defendant ICBC agrees the injuries following the first accident are indivisible
from those sustained in the other accidents:  that is, it is appropriate to
assess damages globally, not apportion them between the various accidents.

[69]        
While there are five named defendants other than ICBC, the damages
alleged result from motor vehicle accidents and will be assessed globally.  I
will therefore refer to ICBC as the defendant in this case.

[70]        
The defendant argues Mr. Singh did not take sufficient steps to ascertain
the identity of the driver responsible for the third accident.  The defendant
says the plaintiff could have reasonably obtained the vehicle licence plate
number at the time the accident occurred and did not act reasonably in failing
to do so.  The defendant relies on: Leggett v. Insurance Corp. of British
Columbia (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 at para. 11
(C.A.), leave to appeal to S.C.C. refused, [1992] S.C.C.A. No. 558; and Watson
v. Insurance Corporation of British Columbia, 2004 BCSC 1695 at para. 13.

[71]        
The defendant argues the evidence establishes the plaintiff has suffered
but that they are “mild” injuries which have had “minimal” impact on his day-to-day
activities.

[72]        
The defendant says the diagnosis of left thoracic outlet syndrome made
by Drs. Keyes and Travlos is not a universally accepted diagnosis by
neurologists and that several of the tests performed by the physicians (Adson’s
and Allen’s tests) were negative for TOS.  The defendant argues this fact
suggests some other cause for the plaintiff’s symptoms.

[73]        
The defendant also points to several inconsistencies between the
plaintiff’s evidence at trial and at his examination for discovery.  In
particular counsel noted inconsistencies regarding the onset of the plaintiff’s
hand numbness, when his headaches resolved, the nature of the injuries
following the fourth accident, his ability to lift weights and the amount of
weight he could lift and his evidence regarding his overall improvement from
the time of the first accident.

[74]        
The defendant argues non-pecuniary damages should be assessed in the
range of $50,000 to $55,000 and relies on Langley v. Heppner, 2011 BCSC
179 ($55,000), as well as the cases cited by the plaintiff where, it is
asserted, the injuries were considerably more significant than those sustained
by Mr. Singh.

[75]        
The defendant says there should be no award made for loss of earning
capacity as any such loss is entirely speculative: Perren v. Lalari,
2010 BCCA 140.

DISCUSSION AND
ANALYSIS

The s. 24
defence relating to the third accident

[76]        
I have outlined the parties’ positions above.

[77]        
The question for determination is whether the plaintiff made all
reasonable efforts to obtain the identity of the driver of the vehicle which
struck his vehicle on September 18, 2007: Leggett.

[78]        
In the present case, Mr. Singh might have been able to take down the
licence plate number of the offending vehicle if he had done so immediately.  However,
he did not expect the vehicle to leave the scene of the accident.  Once it
became clear that the vehicle was not going to stop, his wife made an effort to
write the number down, but only got two of the letters.  Following the accident
Mr. Singh took all reasonable steps to ascertain the identity of the
driver.  He spoke to two witnesses, he telephoned ICBC, attended the police,
phoned his lawyer to obtain advice as to how to proceed, and, as a result, put
up flyers seeking witnesses.

[79]        
In Leggett the plaintiff’s case was dismissed because the Court found
he had made a decision not to pursue his rights at the time of the accident. 
In Smoluk the Court distinguished Leggett stating, at para. 9:

[9]        In my view, the Leggett
case is clearly distinguishable from this case because the plaintiff in this
action made no decision not to pursue her rights. She was prevented from
obtaining more information because of the precipitate departure of the
wrongdoer, and in my view the plaintiff acted reasonably in taking down the
license plate number which would lead any reasonable person to believe that the
identity of the person had been or could easily be ascertained. The fact that
she got the number wrong in such circumstances does not indicate
unreasonableness.

[80]        
The facts in Smoluk are similar to those in this case.  The
offending driver in that case drove away while the plaintiff was inspecting the
damage to his vehicle.  While the driver in Smoluk did get the
opportunity to take down a partial plate number Mr. Singh did not.  I find
that under the circumstances his expectation the other driver would comply with
the law and stop his/her vehicle was a reasonable one.  When the vehicle left
the scene as he was getting out of his vehicle, it was too late to get
particulars of the licence plate number.  I conclude Mr. Singh acted as a
reasonable person would have acted in preserving his rights.

DAMAGES

1.       Non-Pecuniary
Damages

[81]        
Based on the medical reports and testimony of Drs. Keyes and Travlos, I
am satisfied the plaintiff suffers from thoracic outlet syndrome which causes
him difficulty holding his hands above his head, causes his left arm and
shoulder to go numb such that he must lower his arm and “shake” the tingling
and numbness out, and that this injury affects him both at work and in his home
life as described earlier in this decision.

[82]        
He is also affected because his injury wakes him several times each
night, causing him to be tired the following day.

[83]        
The plaintiff also suffered low back pain and persistent headaches which
lasted for several years after the second accident but which have now cleared
up.

[84]        
Some of the factors important to an assessment of non-pecuniary damages
include:  the age of the plaintiff; the nature of the injury; the severity and
duration of the pain; the extent of disability; the degree of emotional
suffering; the loss of or impairment to the enjoyment of life; the impairment
of family and other social relationships; the impairment of physical and mental
abilities; and the loss of lifestyle:  see Stapley v. Hejslet, 2006 BCCA
34, leave to appeal to S.C.C. refused, 2006 CarswellBC 2598.

[85]        
The cases relied on by the plaintiff to support the range of appropriate
damages were recently reviewed by Mr. Justice Barrow in Langley. 
He stated at paras. 75, 76, and 79-81:

[75]      In Cimino, Dillon J. awarded a 44-year-old
plaintiff who suffered from thoracic outlet syndrome $85,000 in non‑pecuniary
damages. Ms. Cimino, however, was in continual daily pain. She took
synthetic morphine every day. Without that medication she would be unable to
function by noon. Her right-sided weakness was so significant that she could
not hold a jug of water (paras. 15 and 16). Dillon J. found that the plaintiff’s
condition was permanent and would continue to require daily doses of various
kinds of pain medication in order for the plaintiff to function both personally
and at work.

[76]      In Durand, Davies J. awarded a 45-year-old
plaintiff $75,000 in non‑pecuniary damages. Again, Ms. Durand’s
injuries were more serious than Mr. Langley’s. Like Mr. Langley, Ms. Durand
was stoic and uncomplaining. She needed to continue to work, but doing so in
the face of her permanent injuries, consumed virtually all her energy. She was
unable to carry grocery bags and had difficulty performing relatively minor
physical tasks such as wringing out clothes (paras. 56 and 57). Her
situation was not expected to improve.

…

[79]      In Driscoll, the 45-year-old plaintiff
suffered low back and right shoulder pain which, like Mr. Langley, reduced
his capacity for repetitive overhead reaching and lifting (para. 101). At
trial, some five years after the accident, Mr. Driscoll still suffered
from pain, sleep disturbance, and restrictions on his activities. Gray J.
described him as “stoic” and “inclined to push through pain until it becomes
intolerable”. Although the nature of Mr. Driscoll’s injuries differ in
some respects from Mr. Langley’s, the way they impacted his life is
similar to the way that Mr. Langley’s injuries have impacted his life. Mr. Driscoll
was awarded $55,000 in general damages.

[80]      In Verhnjak, a 55-year-old plaintiff was
awarded $40,000 in non-pecuniary damages in 2005. Although her injuries were
permanent, their affect on her life was less significant than in the case of Mr. Langley.
That is so in part because Ms. Verhnjak was 55 years old, and whatever
recreational pursuits she enjoyed they were not significantly affected by her
injuries.

[81]      In view of all of the
foregoing, an appropriate award for non‑pecuniary damages is $55,000.

[86]        
In Langley, Barrow J. summarized the plaintiff’s injuries at para. 54
and 58-64.  Mr. Langley also suffered a mechanical injury to his back
which had returned to pre-accident condition within five years of the accident.

[87]        
Mr. Singh’s injuries are somewhat similar to those suffered by Mr. Langley. 
The latter was a younger person and the injuries impacted significantly on his
sporting activities.  Mr. Singh’s injuries impact on his at-work
activities and family life.  In addition he is impacted by his arm becoming
numb at night and waking him several times a night.  He suffered from lower
back pain and headaches for several years although these have now cleared up.

[88]        
I find the prognosis for Mr. Singh is a mixed one.  Dr. Keyes’
diagnosis is a difficult one to understand.  On the one hand he has opined that
there is likely some permanent injury to the plaintiff’s neurovascular bundle
in the left thoracic outlet space.  On the other hand, he has opined there is
no permanent injury or damage of the neurovascular bundle in the left thoracic
anatomic space.  Dr. Keyes was clear however Mr. Singh would “almost certainly
respond” without surgical intervention and expected that his symptoms would
improve “and probably resolve over time”.  Dr. Keyes’ prognosis for the
plaintiff’s injuries is “very good to excellent” and he says that his
recreational and employment activities would “not be significantly affected
over the long term”.  The caveat Dr. Keyes offered to this opinion in the
penultimate paragraph was that “repeated injuries to the same areas… would be
expected to result in similar symptoms and a more prolonged recovery…”  Mr.
Singh was involved in motor vehicle accidents on September 18, 2007 (which he
did not tell Dr. Keyes about) and November 1, 2008, and the at-fault
accident on March 19, 2007.

[89]        
At the time of trial Dr. Keyes had not seen the plaintiff for some four
years.

[90]        
Dr. Travlos’s prognosis, based on an assessment made in April 2009
was much more guarded.  As noted above he was of the opinion “there is no real
expectation that further treatment is going to magically cure his symptoms.”  Dr. Travlos
recommended Mr. Singh commence a structured conditioning program outside
the home.  There was no evidence to suggest Mr. Singh has followed Dr. Travlos’s
recommendation to engage in a conditioning program outside his home or that he
take medication to help relieve his sleeping problems.  Had he done so it is
possible these problems would have resolved more quickly than they have.

[91]        
In my view the injuries suffered by Mr. Singh are more significant
than those suffered by the plaintiff in Langley but less serious than
those suffered by the plaintiffs in Cimino and Durand.  I
assess the plaintiff’s non-pecuniary damages at $65,000.

2.       Loss
of Future Earning Capacity

[92]        
I have earlier described the circumstances of Mr. Singh’s
employment.

[93]        
He earns roughly $30,000 per annum at his current position.

[94]        
Mr. Singh testified he has searched for other better paying work as
an electrical technician but there are no available positions.  In any event
such work would involve lifting or working with his arms above his head and he cannot
perform such work on a continuous basis.  His current condition would be a
handicap to him as much of the work available to him as an electrical
technician is based on a quota system.  It is for this reason he has not
pursued searching for a position in this field.

[95]        
There is no evidence Mr. Singh’s current employment with his
employer Leading Edge Manufacturing is in immediate jeopardy as a result either
of Mr. Singh’s injuries or because of the economic viability of the
industry in which his employer operates.  Mr. Singh has been employed by
Leading Edge for about 11 years.  His employer has accommodated his injury
because he has the flexibility to perform a broad range of employment duties.

[96]        
The law on the issue of a claim for loss of future income earning
capacity was recently reviewed in Perren.  In Langley Barrow J. summarized
that court’s conclusion, at para 88:

The law on the issue of loss of future income earning
capacity was recently summarized by Garson J.A. in Perren v. Lalari,
2010 BCCA 140. From a review of the authorities, she identified two principles
that are to guide the assessment of damages under this head:

1.         a
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation, and

2.         it is
not a loss of earnings, but, rather, loss of earning capacity for which
compensation must be made.

At paragraph 32 she wrote:

A plaintiff must always prove…that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then
depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok[ v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)],
or a capital asset approach, as in Brown[ v. Golaiy
(1985), 26 B.C.L.R. (3d) 353]. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos[ v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260] and
Romanchych[ v. Vallianatos, 2010 BCCA
20]. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment…

[97]        
I am satisfied there is a real and substantial possibility Mr. Singh
may lose his job at Leading Edge at some time during his lifetime.  He obtained
his job at Leading Edge when his previous employer shut down its Burnaby
plant.  Leading Edge had done contract work with that employer.  When he joined
his current employer there were some 40 employees.  As a result of the loss of
its biggest customer the workforce has shrunk to some 12 employees.  The fact
the workforce has been at this level mitigates against any prospect Mr. Singh
may lose his job in the immediate future.  However the facts demonstrate there
is transition and risk inherent in his employment in his industry.

[98]        
As the plaintiff cannot demonstrate the loss of a stream of income it is
appropriate to apply the “capital asset” approach to the assessment of damages
in this area.  The plaintiff must meet the criteria set out in Pallos v.
Insurance Corp. of British Columbia (1995), 3 W.W.R. 728, 100 B.C.L.R. (2d)
260 at para. 24 (C.A.).  Those criteria are whether:

1.       the plaintiff
has been rendered less capable overall from earning income from all types of
employment;

2.       the plaintiff
is less marketable or attractive as an employee to potential employers;

3.       the plaintiff
has lost the ability to take advantage of all job opportunities which might
otherwise have been open to him, had he not been injured; and

4.       the plaintiff
is less valuable to himself as a person capable of earning income in a
competitive labour market.

[99]        
An assessment of whether a particular plaintiff meets the criteria has
been described as “arbitrary”, “judgemental”, and “crystal ball gazing”:  see Letourneau
v. Min, 2001 BCSC 1519 at para. 60, aff’d 2003 BCCA 79; Langley
at para 97.

[100]     In the
present case, should Mr. Singh be required to seek alternative employment
I conclude he has met all the criteria above noted:  he has been rendered less
capable overall from earning income from all types of employment, particularly
that of an electronics technician; with his current physical limitations he is
less marketable as an employee; he has lost the ability to take advantage of
all job opportunities which might have been open to him; and he is less
valuable to himself as a person earning income in a competitive labour market.

[101]     I have
taken into account:  his symptoms have remained constant since the date of the
second accident (some 4 1/2 years ago); he remains unable to work with his arms
extended above his head for any length of time; and he will likely obtain some
form of relief following the regime set forth by his physicians.  It is not
likely a new employer would be as accommodating to (or even hire) Mr. Singh
should he lose his position.

[102]     Mr. Singh
is 39 years old and, assuming he works to age 65, has 26 years of earning
capacity to consider.

[103]     In view of
all the forgoing I assess damages under this head of damages at $40,000.

3.       Past
Loss of Income

[104]     The
plaintiff lost five days of work as a result of the first two accidents.  He
did not lose time from work from the third or fourth accident.  The total
amount of lost wages amounts to $616.  The plaintiff will recover this amount.

4.       Loss
of Housekeeping Capacity

[105]     Mr. Singh
was unable to paint his townhouse.  He required the assistance of Mr. Ram
to do so, in the fall of 2010.  Dr. Travlos has made reference to the fact
the plaintiff may well have to employ people to do work of a heavy nature such
as home renovating or decorating.  The plaintiff seeks an award of $10,000 in compensation
for this head of damage.  In my view, an award of $5,000 is appropriate.

5.       Cost
of Future Care

[106]     The
plaintiff seeks $1,000 to cover the cost of botulinum toxin injections as well
as for the cost of ongoing analgesic medications.  Given the testimony of Dr. Travlos
I am not satisfied Mr. Singh will actually take such injections.  I award
the sum of $600 to cover the cost of sleeping medication and any other
analgesic medication costs.

SUMMARY

[107]     In
summary, the plaintiff is awarded the following:

[108]     Counsel
may speak to the issue of costs should they be unable to agree.

“GREYELL J.”