IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111025

Docket: M128816

Registry:
New Westminster

Between:

Lenora Marcia
Cariglino

Plaintiff

And

Jocelyn Kathleen
Okuda and

Michael Esmaiel

Defendants

Before:
The Honourable Mr. Justice R. McKinnon

Reasons for Judgment

[1]            
The plaintiff claims damages for injuries and loss sustained in a motor
vehicle collision which occurred August 12, 2008 at Mary Hill Bypass and
Kingsway, Port Coquitlam, B.C.

[2]            
The defendant Okuda was the driver of a Subaru vehicle in which the
plaintiff was a right-seat passenger. The defendant Esmaiel was operating a
vehicle that ran into the back of the Subaru. Liability for the collision has
been admitted by Esmaiel and accordingly proceedings against Okuda have been
discontinued.

[3]            
Damage to the Subaru was $721.43, inclusive of taxes and an alternate
transportation fee. The defendant says that indicates the relatively minor
nature of the collision and the likelihood that the complaints of injury and
loss made by the plaintiff are either not related to this collision or are
embellished.

THE PLAINTIFF

[4]            
Ms. Cariglino is a 41-year old single mother of three children ages
14, 12 and 8.

[5]            
She met Andrew Ally in 1994 and they began living together. He is the
father of her three children. They separated in July of 2007 and for a time he
paid rent and other costs incurred by the family, but by April of 2008 he had stopped
making any payments and thereafter, the plaintiff had to take legal proceedings
to obtain spousal and child support. Mr. Ally is a paediatric nurse who
makes a good income. Ex. 1, tab 7 indicates that in 2010 he paid child
support of $28,756 and spousal support of $7,656. In 2009 he paid $3,102 in
spousal support but nothing for child support. In 2008 he paid $14,627 in child
support and $1,492 in spousal maintenance.

[6]            
These varying amounts support the plaintiff’s evidence that she has had
a difficult time collecting court-ordered payments and only since 2010, when the
Family Maintenance Enforcement Program began garnishing proceedings, has she
been able to rely upon these payments.

[7]            
Defence contends that it has been these financial stresses that have
caused or contributed to the plaintiff’s complaints and that by July of 2009 she
was 70% recovered from motor-vehicle-related complaints, as indicated by her to
her doctor and recorded in his clinical notes.

[8]            
The plaintiff disputes the contention that her complaints are causally
related to her financial stresses, saying that while she has been stressed over
financial issues, both before and after the collision, she did not suffer the
many complaints enunciated in her testimony until after the collision.

[9]            
Prior to the collision, the plaintiff operated a small daycare facility
from which she earned a modest income. In 2005 she earned less than $2,000 net;
in 2006 it was $7,734; in 2007 she earned net $6,394; in 2008 it was $9,540;
and in 2010 she earned $5,038. She anticipates no income from this source in the
future.

[10]        
She testified that after the collision, and given her difficulties, she
declined to take on any more children. The two children she had been caring for
reached an age and situation that did not require her services. Although she
considered obtaining employment as a transit operator or some government work,
she did not feel she could manage it given her complaints.

[11]        
She did take a union-sponsored trade course in which she obtained
certification to connect and install water sprinklers but said the work was
physically demanding and she could not do it.

[12]        
Ms. Cariglino has some university credits from years past, and
presently attends Simon Fraser University (“SFU”) in the hope of obtaining a
psychology degree sometime in 2012. She has skills as a legal assistant and
works part-time for a lawyer.

[13]        
Presently the plaintiff takes two courses per semester at SFU, which she
says is all she can manage. This requires her to attend classes 4 to 6 hours a
week and complete home assignments taking about 14 hours a week. Since spring
of 2011, she has been working as a legal assistant between 6½ and 13 hours a week
at $13 per hour.

THE COLLISION

[14]        
The plaintiff was a belted right-seat passenger in Ms. Okuda’s
Subaru vehicle. They had just left a shopping centre and were heading to Ms. Cariglino’s
residence. At the intersection of Mary Hill Bypass and Kingsway, they stopped
for the light then began a left turn on Kingsway when they were struck from behind
by Mr. Esmaiel’s vehicle.

[15]        
The plaintiff described it as a “hard impact”, her seat belt tightened
and she tensed. She said her neck went “weirdly hot” and she felt shaken and
disoriented. Her right elbow and right collar bone hurt. After exchanging
information, Ms. Okuda drove the plaintiff home. She said that on arrival
her neck was very hot, she was “stiff and achy”. Her elbow and collar bone were
hurting, she was disoriented, shaky, and had a headache.

[16]        
After resting for a time she picked up her children from camp, got them
dinner, and bathed them, all the while feeling exhausted and hurt, and “not feeling
myself”.

[17]        
The next day she described feeling worse. She said she had a pounding
headache, a pinching between her shoulders, a stiff neck and pain in her lower
back when picking up objects, and her elbow continued to hurt. She also had
tingling in her fingers. The burning sensation in her neck and the collar bone
complaint were resolved by the second day.

[18]        
She went to a walk-in clinic on August 17 and saw Dr. Chorn to whom
she related her complaints. His clinical notes refer to “pain left side neck,
left collar bone, sore movement, left neck felt hot, tender right side neck,
pain flexion, lateral flexion to left, limited flexion, lateral flexion, …”

[19]        
Ms. Cariglino said that it was her right collar bone not the left
she complained about, and I accept that Dr. Chorn erred when making his
note in that regard. He prescribed Flexeril and Novo-Naprox and suggested she
might benefit from physiotherapy.

[20]        
The plaintiff’s general practitioner is Dr. G. Wong. He has been
her doctor since August of 1997 and knows her well. He cared for her during her
three pregnancies. Two medical reports and clinical records authored by Dr. Wong
were filed.

[21]        
According to Dr. Wong, prior to August 12, 2008, the plaintiff had
never complained of soft tissue injury of the cervical, thoracic, or lumbar
spine. He first saw her post-collision on August 26, 2008. On that occasion and
as noted in Exhibit #3 (his medical report of July 22, 2009), he assessed her
as follows:

multiple soft tissue injuries of
the left neck, right neck, her hands going numb, as well as her right hip. She
also complained of dizziness when she was driving. The hip pain was the most
bothersome for her, as well as turning her neck. I suggested that she attend
physiotherapy and massage and I would re check her in three weeks time.

[22]        
Following a September 10, 2008 visit, he noted she had

persistent soft tissue injury of
the bilateral neck trapezius and an episode of left low back pain. She has
chronic right low back pain and hip pain since the motor vehicle accident with
compensatory aggravation on the left side of her body….

X-rays were ordered by Dr. Wong but the results did not
indicate any collision-related injuries.

[23]        
On October 29, 2008, Dr. Wong observed that she complained she
could not carry 4 litres of milk, her elbow was still troubling her, and
extending her arm was difficult. He diagnosed tendonitis. The plaintiff also
complained at this time of dizzy spells which he determined were unrelated to
the collision. He did determine on another occasion that another complaint of
“dizziness” was collision-related.

[24]        
On February 12, 2009, he noted she attended his clinic complaining of
pains in the right side of her head which she described as “repetitive stabbing
sensations quite intolerable”. On a scale of one to ten, with ten being the
worst, she described this pain as a “ten”. Dr. Wong ordered a CT scan
which was done at Eagle Ridge Hospital on February 13. No abnormalities were
found.

[25]        
On April 1, 2009, she attended on Dr. Wong, again complaining of
“stabbing sensations in the right side of her head”. He noted that these seemed
to be changing direction. The plaintiff continued to complain of dizzy spells
while doing treadmill exercises. She was then receiving physiotherapy and
massage therapy on a weekly basis, which therapy seemed beneficial insofar as
her hip complaints were concerned. Dr. Wong was concerned enough about her
head complaints to refer her to a neurologist.

[26]        
Dr. Devonshire, the neurologist, reported to Dr. Wong that Ms. Cariglino
was experiencing “ice pick” headaches, commonly seen in patients with migraine
headaches, though they could have been triggered by muscle spasms. Dr. Devonshire
felt that the headaches and other complaints were resolving and she could see
no long-term concerns.

[27]        
On May 20, 2009, the plaintiff complained to Dr. Wong of muscle
tension in the neck, headaches, and continued stabbing sensations, especially
on the left occiput. He also noted tenderness on the right trapezius.

[28]        
Dr. Wong’s last examination of the plaintiff prior to his report
dated July 22, 2009 was on July 8, 2009. She then complained of continuing pain
and numbness to her right arm and shooting pains in the neck. Dr. Wong
noted, “She seemed 70 percent improved from her injuries and with
physiotherapy she felt she could improve to 80 percent.”

[29]        
According to the plaintiff, she could not afford physiotherapy and ICBC
would not pay for continued therapy treatments.

[30]        
Dr. Wong offered the following summary:

… Marcia suffered a motor
vehicle accident on August 12, 2008 where she was a passenger in the front
seat. She suffered multiple soft tissue injuries to her left neck, right neck,
right hip, hand going numb, and dizziness when driving. Investigations included
cervical spine and lumbar spine x-rays. The lumbar spine x-rays showed mild
arthritis and the cervical spine x-rays were normal. She started complaining of
stabbing sensations on the right side of her head, which increased resulting in
anxiety and further follow-up of CT Scan of her head was normal. Due to the
severity of the stabbing pains in the head, she was referred to Dr. Devonshire,
the neurologist, who diagnosed her with ice pick headaches and treatment was
reassurance. The dizziness she thought would also subside along with the residual
effects of her symptoms from the motor vehicle accident. All these symptoms have
affected her in terms of her daycare where she is self-employed ….

[31]        
Dr. Wong opined that so long as she received continued therapy she
should be able to resolve her motor-vehicle-related injuries over the next year
or two.

[32]        
The plaintiff testified that presently most of her symptoms have
“improved” although she continues to have regular aching in her lower back and
elbow. She also complained that she still gets headaches several times a week
and certain activities, such as playing with her children, can aggravate her
symptoms.

[33]        
No medical opinions were proffered by the defence, rather defence
submitted that the plaintiff’s evidence is “unreliable” as she downplays the
role of significant family stressors in her life, fixating on the collision as
the sole cause of all of her problems, both before and after the collision.
Curiously, defence accepts that the plaintiff is credible but not reliable.
That seems to me to be a distinction without a difference.

[34]        
I found the plaintiff to be generally credible and, for the most part, a
reliable historian. Certainly she had stresses in her life that created
difficulties but she was able to manage these much more easily before the
collision. A defendant takes a plaintiff as he finds her. Here the defendant
has caused injury to the plaintiff who was in a somewhat fragile state, given
her many family issues.

[35]        
The defendant contends that the very minor nature of the collision would
render “improbable” the nature and extent of the injuries the plaintiff
contends she suffers. I was not provided with opinion evidence to support that
contention and thus am unable to accept the bald proposition that minor damage
equals minor injury.

DAMAGES

[36]        
The plaintiff contends that three years post-collision she still suffers
some disability which her counsel describes as “chronic”. She claims the
following damages:

1. Non-pecuniary damages – $55,000

2. Loss of opportunity to earn past
income – $10,000

3. Diminished earning capacity –
$25,000

4. Cost of future care/special
damages – $2,500

5. Moving costs – $2,000

[37]        
Defence submitted that all claims should be dismissed but if I found
injury and loss it should be restricted to an award between $10,000 and $15,000
for non-pecuniary damages. Apart from perhaps some award for special damages,
defence contends that no other losses have been proved.

[38]        
The medical opinion spoke to the need for both past and continuing
massage and physiotherapy treatments. Interestingly, although initially
provided with funds for these treatments, eventually those payments stopped and
given the plaintiff’s precarious financial situation, she has been unable to
obtain those treatments. Thus, she has been deprived of the very treatment that
should lead to complete recovery.

[39]        
The medical opinion has the plaintiff at 70% of full recovery one year
post-collision. I accept that thereafter she continued to have some difficulty
which continues to date but that she should, with continued therapy, soon be
fully recovered.

[40]        
I set $35,000 as a reasonable amount for non-pecuniary damages.

[41]        
The claim for past wage loss relates to an allegation that the plaintiff
was obliged to limit the number and category of children in her daycare. She
also deposed to taking a sprinkler certification course which could pay her up
to $20 per hour but which she could not do because of her injuries.

[42]        
Ms. Cariglino never attempted any work in the sprinkler industry
nor was any evidence (apart from her opinion) called as to potential earning
ability and/or employment opportunities. It was a vague unsubstantiated claim
that was not proven. However, I accept that she suffered some loss in that her
injuries prevented her from taking on the kind of daycare load she was
previously capable of doing. I fix the sum of $2,500 under this heading.

Diminished Earning Capacity

[43]        
The plaintiff again relies upon her stated claim to pursue work in the
sprinkler-fitting industry or use it as a “fall back” job while pursuing her
university degree. As I understand the plaintiff’s position, she has, as her
ultimate goal, work as a counsellor after obtaining her psychology degree.

[44]        
She claims this loss is a “real and substantial possibility and not mere
speculation” per Athey v. Leonati, [1996] 3 S.C.R. 458.

[45]        
In my respectful view the claim under this heading is entirely “speculative”.
I had no evidence as to earnings in this field (apart from, as I noted
earlier, the plaintiff’s evidence as to her “expectations”), no evidence of
openings in the field, and only a vague opinion by Dr. Wong that she
couldn’t do this type of work. She never even tried to do it.

[46]        
I am persuaded that she should receive an award for future care costs.
The medical opinion is that she would recover completely if she received
massage and physiotherapy treatments. While I was not given any specific time
frame, there is evidence with respect to these costs and sufficient evidence to
infer a reasonable period of time. I award the plaintiff $2,500 under this
heading.

[47]        
I am not prepared to award any sum for her move. Apart from saying that
she needed help to make this move, there is no evidence that she actually
expended any money.

[48]        
In summary I make the following awards:

1.       Non-pecuniary damages – $35,000

2.       Loss of opportunity to
earn past income – $2,500

3.       Cost of future care – $2,500

4.       Special damages – $490.50

 Total – $40,490.50

[49]        
Judgment accordingly.

“The
Honourable Mr. Justice R. McKinnon”