IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120208

Docket: M104070

Registry:
Vancouver

Between:

Khairun Nisha
Hussain

Plaintiff

And

Young Hee Cho and
Ana Kyunghyun

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

I.                
Introduction

[1]            
On August 24, 2008, Khairun Hussain, the plaintiff, was riding as a
passenger in the front seat of a Honda Civic driven by her daughter, Rana, which
was travelling westbound on Kingsway in Vancouver and came to a stop at the
intersection of Kingsway and Beatrice Street. Without warning, the Honda Civic
was “rear-ended” by a vehicle owned by the defendant, Young Hee Cho, and driven
by the defendant Ana Kyunghyun. The cost of repairing damage to the Honda Civic
amounted to approximately $2,800. Following the accident, the plaintiff got out
of the vehicle under her own power, comforted her daughter and eventually
returned to the vehicle before she and Rana continued on their way. Emergency
vehicles did not attend the accident, nor were they requested. Liability for
the accident is admitted by the defendants.

[2]            
Agreement has been reached on damages for past income of $4,219 and
special damages of $286.01 plus court order interest on those amounts. The only
remaining claim to be determined is the plaintiff’s claim for damages for
non-pecuniary loss, i.e. pain and suffering.

II.              
Plaintiff’s Background

[3]            
Ms. Hussain was 58 years at the time of the accident and is now 61. She
is married and has three adult children, one of whom, her other daughter,
Romaana, lives at home with Ms. Hussain and her disabled husband. By all
accounts, Ms. Hussain is very industrious, determined and hard-working. She is
the “breadwinner” and leader of her family. Romaana testified in support of the
plaintiff and described her mother as stubborn in the sense that she was
determined to do things “her way” around the house. Prior to the accident Ms.
Hussain performed the vast majority of the household work, including yard work,
cooking, cleaning and more. Due to her work commitments and family obligations,
she had little or no time for any recreation, which consisted, at most, of
walks to a nearby park when she was able to take a break. Ms. Hussain has spent
her adult life working and taking care of her family and home.

[4]            
As of the time of the accident, Ms. Hussain had been working full-time for
23 years for the same employer, Southview Heights and Terrace (“Southview”),
which is a seniors assisted living and care facility in Vancouver operated by
the Salvation Army. For many years, Ms. Hussain had worked as a dietary aide in
the kitchen, serving meals, cleaning tables, cleaning dishes, loading and
unloading carts with trays and more. In April of 2007, she changed jobs to
become a housekeeping aide which involved cleaning all resident rooms, common
areas, bathrooms and related duties. The tasks as a housekeeping aide were less
physically demanding than the lifting and other work required of a dietary
aide.

[5]            
In addition to working at Southview, Ms. Hussain also worked one or two
days a week at another seniors facility known as Brock Fahrni Centre (“Brock
Fahrni”) as a dietary aide. Also, when on vacation from Southview, Ms. Hussain
worked additional hours at Brock Fahrni. To say she was industrious would be an
understatement.

[6]            
I found Ms. Hussain to be generally credible. She did have difficulty
answering some questions, which resulted in several answers of “I don’t know”
and “I cannot remember”, but from my observations, I could not conclude that
she was being evasive by so answering. She is a fairly quiet individual;
English is her second language and although she did not require assistance from
an interpreter made available at trial except on one occasion, she clearly had
difficulty in expressing her thoughts and recalling evidence so as to be able
to answer all questions.

III.            
Plaintiff’s pain after the accident

[7]            
Within hours after the accident, the plaintiff developed pain,
specifically a headache plus neck and back pain. That evening, some seven or
eight hours after the accident, the plaintiff sought treatment at a medical
clinic and was seen by Dr. Chu, who prescribed Voltaren 50, a muscle relaxant
which unfortunately made the plaintiff nauseous. She had very little sleep that
evening due to pain which continued in her neck, shoulders and back.

[8]            
The next morning, Ms. Hussain still experienced pain but was determined
to go to work in spite of the difficulties she was facing. Once at Southview,
she met with her supervisor who promptly sent her home due to her injuries.

[9]            
Later that day, Ms. Hussain met with her doctor of 12 years, Dr. Menzies,
who prescribed Tylenol 3 for pain and another prescription she could not recall.
She continued visits to Dr. Menzies who noted tenderness in her neck and upper
back muscles. Over time he prescribed further Tylenol 3, Flexeril, Ibuprofen
and instructed Ms. Hussain to stop taking Voltaren 50.

[10]        
Although the above prescriptions lessened the plaintiff’s pain, Ms.
Hussain continued to experience pain in her neck, shoulder and back, daily
headaches, stiffness in her shoulders and lack of sleep due to pain from the
date of the accident until she returned to work on October 6, 2008. She was
also receiving massage therapy recommended by Dr. Menzies which provided some
relief. Around her home, Ms. Hussain was unable to perform regular duties and
needed assistance from her daughter for the laundry, cooking, cleaning and for
driving to appointments and elsewhere. She no longer was able to mow the grass
and hired someone to perform that work.

IV.           
Plaintiff’s return to work

[11]        
When Ms. Hussain returned to work, Dr. Menzies provided her a “To Whom
It May Concern” letter dated October 9, 2008 in which he stated “Kharun is fit
to return to work as of October 6, 2008” (Ex. 1 – Tab 6). It was clear that in
her visits to Dr. Menzies in late 2008 she continued to complain of back,
shoulder and neck pain, headaches, difficulty bending down and her difficulties
in completing simple tasks in a timely manner.

[12]        
Also in the fall of 2008, Ms. Hussain would often take Tylenol Extra
Strength or other pain killers at lunch or at times during the day. At night
she continued to take Tylenol 3 and muscle relaxants. She was able to drive to
and from work. Ms. Hussain did return to performing some of her household
duties including cooking, cleaning and laundry with assistance from her
daughter, Romaana. All of these tasks took much longer for her to perform after
the accident than before.

V.             
PLaintiff’s Pain: One year after the accident to trial

[13]        
One year after the accident, the plaintiff’s headaches were less
frequent and less severe, she still suffered some pain in her neck, her back
pain was “a little better”, her shoulder hurt but “not that bad”, and she
continued to take Tylenol 3 at bedtime for pain and to aid her in getting to
sleep. Up to February of 2011, headaches were suffered less and less frequently
and were not as painful. She also noticed progressive improvement in her back,
shoulder and neck pain, but she continued taking Tylenol Extra Strength.

[14]        
Ms. Hussain experienced a set-back in February 2011 when she suffered a
“slip and fall” in the parking lot at work. She has been off work ever since
and in December 2011 underwent surgery to repair her left shoulder, which was
injured in the “slip and fall”.

[15]        
Between October 2008 and February 2011, the plaintiff stated she continued
to work full time at Southview as well as part time at Brock Fahrni and it
would appear she was able to carry out her duties, albeit with some difficulty.
She did miss one month of work in April / May 2009 due to ear surgery.

[16]        
Currently, Ms. Hussain’s evidence is that she no longer suffers
headaches, her neck is getting better, her lower back is painful each day or
second day but is improving. She takes painkillers mainly as a result of the February
2011 “slip and fall” incident and subsequent shoulder surgery, from which she
continues to be off work and is still recovering.

VI.           
Report of Dr. Menzies

[17]        
In support of the plaintiff’s claim, her family doctor, Dr. R.D.
Menzies, gave evidence at the hearing. His medical report of October 18, 2011
was an exhibit tendered as evidence at trial (Ex. 1 – Tab 7). At page 5 of that
report, Dr. Menzies stated:

… the diagnosis is soft tissue
injuries to the muscles named, left erector spinae (neck muscles near the
spine) and thoracic paraspinals (upper back muscles near the spine and a
transient Voltaren (NSAID)), induced gastritis which settled quickly and need
not be mentioned further.

He went on to say that the
plaintiff’s injuries from the “slip and fall” were “likely a little worse
because of the foregoing injury”, and I took this statement to mean that the
plaintiff’s injuries from the “slip and fall” were likely a little more serious
than they would have otherwise been because of the pre-existing soft tissue
injuries she sustained in the motor vehicle accident.

[18]        
In his report, there was considerable statement of his observations, the
plaintiff’s injury complaints and her treatment, but other than the quoted findings
above, there is very little in the way of opinions or conclusions.

[19]        
Arising from his cross-examination and re-direct, Dr. Menzies offered
further conclusions regarding the plaintiff’s injuries:

·      
Dr. Menzies stated that although trapezius pain and shoulder pain
were different, patients often confuse the two types of pain because of the
proximity of the trapezius to the shoulder, which could explain why Mrs. Hussain
complained of shoulder pain when what she was actually experiencing was pain in
the trapezius muscle.

·      
Dr. Menzies agreed that the first mention of lower back pain in
his notes was from the December 5, 2008 appointment with the plaintiff. He agreed
with defence counsel that a low back pain complaint at this date, more than 3
months after the accident, makes it probable that the lower back pain was
unrelated to the accident. Ms. Hussain was certain that she had mentioned lower
back pain to Dr. Menzies prior to December 5, 2008 and Dr. Menzies was not
certain on this point. He could only confirm he had no written record of lower
back pain before that date. In looking back in his notes of the August 25, 2008
visit of Ms. Hussain where he referred to “back”, he agreed that note could be
a reference to the lower back or mid back. In redirect, Dr. Menzies explained
what he meant by pain being “related” to the accident. He testified there can
be a distinction between pain directly caused by an injury and pain resulting
from an injury; a patient can be injured in one area and experience the pain
resulting from that injury in another area. These are possible explanations as
to the lack of a reference at an earlier date in the doctor’s notes of lower
back pain. In other words, I understand Dr. Menzies to be saying that pain
experienced in the lower back may be caused by or related to an injury located
in a part of the body other than the lower back.

·      
Dr. Menzies did state that within one year after the accident,
Ms. Hussain was “probably substantially recovered” from the injuries caused by
the accident.

[20]        
The defendants did not produce expert evidence of the plaintiff’s
injuries and so the only medical evidence available to determine this issue is
the report and viva voce evidence of Dr. Menzies.

VII.          
Findings of Fact

[21]        
Based on the above and all of the evidence, I find Ms. Hussain’s
injuries arising from the motor vehicle accident of August 24, 2008 consisted of
soft tissue injuries to the left erector spinae and thoracic paraspinals
evidenced by pain in her mid and lower back, shoulder and neck and as well as
headaches. Although Dr. Menzies did state that Ms. Hussain was “probably
substantially recovered” from the injuries caused by that motor vehicle
accident within one year, she did continue to suffer some pain and headaches
for more than a year after the accident. Also, Ms. Hussain’s injuries from the February
2011 “slip and fall” were a “little” worse due to the injuries suffered August
24, 2008.

VIII.        
non-pecuniary damages

[22]        
Plaintiff’s counsel claims non-pecuniary damages in the range of $30,000
to $40,000. Authorities relied upon by counsel for the defendants point to a
range of $5,000 to $11,000. The gap between the two sets of authorities is
mainly explained by the duration of the pain and suffering experienced by the
plaintiffs in each case.

[23]        
The authorities describing injuries most similar to those of the
plaintiff include:

·      
Burton v. Insurance Corporation of British Columbia, 2011
BCSC 653 – A moderate soft tissue injury to the left shoulder and right back
along with headaches and tingling in the arm and fingers over a period of about
2.5 years with expected continued improvement resulted in an award of $35,000.

·      
Basi v. Buttar, 2010 BCSC 9 – An award of $30,000
“in addition to a $7,000 award for diminishment of homemaking capacity” for a
female plaintiff 36 years of age with a moderate soft tissue injury. The
damages for diminishment of homemaking capacity was not, as I understand it, a
separate head of damages but a factor in non-pecuniary damages. The plaintiff
was 70% recovered within a period of over 18 months and had made almost a full
recovery by trial, which occurred 32 months after the accident. In that case,
damages for diminishment of homemaking capacity were separated from the other
non-pecuniary damages for pain and suffering. In the case at bar, it is clear
that the plaintiff struggled with her work around the home, exhibiting not only
pain but tiredness and excess time in completing the housework. Defence counsel
in the case at bar attributes some of Ms. Hussain’s problems with homemaking to
some of her pre-existing health problems including diabetes, high blood
pressure, thyroid problems and her age and I accept that those items were
likely factors in her problems with house work both before and after the
accident.

·      
Olianka v. Spagnol, 2011 BCSC 1013 – A moderate soft
tissue injury to the neck and mid-back and mild soft tissue injury to the lower
back. The plaintiff experienced significant recovery by 27 months after the accident
and intermittent pain at trial, 32 months after the accident. The Court granted
an award of $30,000.

[24]        
The “upper end” of awards referred to by counsel for the defendants
included:

·      
Morales v. Neilsen, 2009 BCSC 1890 – The Court
found that the plaintiff’s mainly mild soft tissue injuries were substantially
resolved within one year, lingering complaints were minor and there was very
little interference with daily activities. The Court granted an award of
$11,000. Notably, the Court had concerns regarding the plaintiff’s credibility.

·      
Mohamadi v. Tremblay, 2009 BCSC 898 – The plaintiff
suffered from soft tissue injuries to the neck, back and shoulder which lingered
for 2 years, and regular headaches. These injuries, combined with a finding of
inconsistent evidence on the part of the plaintiff resulted in an award of
$10,000.

[25]        
Other authorities relied on by the defendants emphasized impacts in the
accidents which were much less severe than in the case at bar, of even less
duration in the soft tissue injuries which included even less severe injuries.

[26]        
Considering all of the above findings and authorities, I find the
plaintiff to be entitled to a total of $25,000 in non-pecuniary damages which
includes $5,000 for diminishment of homemaking capacity. Homemaking was a very
significant activity for Ms. Hussain before the accident and it is clear that
she struggled at that activity for some time thereafter.

[27]        
The award of $5,000 for diminishment of homemaking capacity takes into
consideration the recent comments of Madam Justice Kirkpatrick in O’Connell
v. Yung, 2012 BCCA 57 [O’Connell]. In O’Connell, Kirkpatrick
J.A. reiterated the distinction between awards for loss of homemaking capacity
and awards for the cost of future care. At para. 67, Kirkpatrick J.A.
characterized an award given to a plaintiff for loss of homemaking capacity in
the following manner:

[67] … it is the loss of a
capacity – an asset – that is compensated. Accordingly, because the award
reflects the loss of a personal capacity, it is not dependent upon whether
replacement housekeeping costs are actually incurred.

[28]        
The Court in O’Connell distinguished awards for loss of
homemaking capacity from awards for the cost of future care, stating at para.
67 that “[u]nlike loss of housekeeping capacity awards, damages for the cost of
future care are directly related to the expenses that may reasonably be
expected to be required”. Thus, the Court in O’Connell held at para. 68
that the trial judge erred in “concluding that future care costs are payable
whether or not they may be incurred in the future.”

[29]        
The Court in O’Connell also considered the decisions in Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), and McTavish
v. MacGillivray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281 [McTavish]. 
The Court in O’Connell referred to the following statement of Huddart
J.A. in McTavish:

[43] As I have noted, the majority in Kroeker quite
clearly decided that a reasonable award for the loss of the capacity to do
housework was appropriate whether that loss occurred before or after trial.
It was, in my view, equally clear that it mattered not whether replacement
services had been or would be hired.

[Emphasis
added.]

[30]        
I find the above statement in McTavish to be of assistance in the
case at bar, as the plaintiff’s difficulties pertaining to homemaking caused by
the injuries she sustained in the accident occurred before trial.

IX.           
Conclusion

[31]        
In conclusion, the plaintiff is entitled to $25,000 for non-pecuniary
damages, past income loss as agreed of $4,219 and special damages, also as
agreed at $286.01, for a total of $29,505.01. Court order interest is to be
added to the damages for past income loss and special damages.

[32]        
Costs to the plaintiff on Scale B.

“Jenkins J.”