IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120313

Docket: M105939

Registry:
Vancouver

Between:

Ying Yu Andy Sun

Plaintiff

And

Yuriy
Oleksandovych Sukhan, Valentyna Grygorivna Sukhan and
Nissan Canada Inc.

Defendants

Before:
The Honourable Madam Justice Maisonville

Reasons for Judgment

1.    Introduction

[1]            
The plaintiff, Ying Yu Andy Sun, brings an application for summary trial
pursuant to Rule 9-7 of the B.C. Rules of Court for an assessment of damages
sustained in a motor vehicle accident. The collision occurred on October 31,
2009 in Vancouver B.C. On that Halloween evening at 8:20 p.m. the plaintiff was
travelling westbound in the left lane of two westward lanes on 49th Avenue. He
was driving his 2001, BMW 325i, four door sedan. He had stopped at the intersection
of 49th Avenue and Tyne Street. The light was green and the plaintiff had
stopped waiting to turn left. The vehicle driven by the defendant Valentyna
Grygorivna Sukhan then rear-ended the plaintiff’s motor vehicle. Liability for
the accident has been admitted by all of the defendants. As a consequence of
the accident, the plaintiff claims injuries were sustained to his neck, back,
left arm and left leg.

2.    Summary
Trial – Appropriateness

[2]            
Liability for the accident has been admitted. This summary trial consequently
concerns an assessment of damages only. There are neither credibility nor
complexity issues to resolve according to both counsel for the plaintiff and
the defendants. I find accordingly that the case is appropriate for
determination by summary trial (see Mayer v. Mayer, 2012 BCCA 77).

3.    Background
of the Plaintiff

[3]            
Mr. Sun will be 31 years of age this year and is employed in the
Information and Technology sector as an IT specialist by Richwood Trading Ltd. He
is not married. Prior to the accident, he enjoyed good health and was an active
person who enjoyed snowboarding and golfing.

4.    The
Accident

[4]            
The plaintiff had stopped his vehicle at the intersection of 49th Avenue
and Tyne Street. He was stopped in the left lane on 49th Avenue waiting to turn
left from 49th Avenue onto Tyne Street. At the time of the accident he had with
him a passenger, his girlfriend Sharon Chin. The impact occurred when the
vehicle driven by the defendant driver, a 2008 Infiniti, rear-ended the
plaintiff. He felt his body move. While he was wearing a seatbelt, he is unsure
if the seatbelt engaged or if any part of his body hit the inside of the
vehicle. On exiting his vehicle, he noticed there was slight damage to the
licence plate of the other car but he did not recall seeing any other damage to
the other car. No police or ambulance attended.

5.    Injuries
and Treatment

[5]            
Immediately after the collision, the plaintiff thought he was alright,
however, the next day he began to feel pain in his neck and lower back. He
consequently phoned his family doctor, Dr. Allan Yun-Fan Tsang to make an
appointment. That day he rested; he did not take any medication. On November 4,
2009 Mr. Sun attended Dr. Tsang’s office for assessment of his pain. Dr. Tsang
described the plaintiff’s complaint of the onset of pain in his report the
injuries after the accident as follows:

He was ambulatory immediately at
the scene of the accident. The next day, Mr. Sun began to feel pain in his
lower back that radiated down to his left thigh.

[6]            
Dr. Tsang diagnosed the plaintiff with soft tissue injuries to his back
and he was prescribed physiotherapy. When the plaintiff returned to work, he found
that he could not sit for extended periods of time and he developed numbness in
his leg and arm. The weekend after the accident, concerned about the numbness
to these parts of his body, he attended at the emergency department of Burnaby
Hospital, although he was discharged. On November 9, 2009 Mr. Sun
returned to Dr. Tsang’s office complaining of an “achy” type pain in his
neck and back with mild numbness of his left arm and left leg. On examination
Dr. Tsang noted the plaintiff had a full range of motion; there was no
tenderness. However, there was a decreased left ankle jerk reflex. The plaintiff
was given a prescription for Diclofenac, an oral anti-inflammatory medication.
An x-ray revealed his spine to be normal.

[7]            
Mr. Sun was seen again by Dr. Tsang on November 24, 2009. Although
the doctor’s findings remained the same, subjectively, Mr. Sun described
the symptoms as having improved mildly. Mr. Sun was advised to continue
his physiotherapy. Mr. Sun re-attended Dr. Tsang’s office on December
8, 2009 again complaining of pain in his neck and back, in addition to the
ongoing mild numbness in his left arm and leg, although he had improved
further. He felt, however, that his left arm and left leg were weaker than on his
right side. This was noted by Dr. Tsang on physical examination and he
recommended continuing physiotherapy.

[8]            
Mr. Sun again attended Dr. Tsang’s office on December 22, 2009
for a follow-up appointment. He had lifted something in the previous weekend
and felt an exacerbation of his lower back pain. On the other hand, he reported
his numbness in his left arm and left leg had continued to improve and his left
leg felt stronger.

[9]            
On physical examination, conducted on December 22, 2009, Dr. Tsang
noted the tenderness of the left trapezius muscle and the left rhomboid muscles
on palpation. His range of motion was intact, but respecting his lumbar spine, there
was a mild restriction in the range of motion and tenderness on palpation. Continuing
physiotherapy was ordered for Mr. Sun.

[10]        
On both January 14, 2010 and February 8, 2010, Mr. Sun again
presented to Dr. Tsang for assessment. Mr. Sun had been carrying on
with his physiotherapy sessions and he reported slow but steady improvement in
his pain, numbness and weakness. There were no significant findings noted
by Dr. Tsang on his physical examination for those dates. He was seen
again in follow-up on March 15, 2010 where he showed gradual improvement in his
symptoms. He had a business trip planned in which he was to go to Taiwan. He
advised Dr. Tsang of his upcoming trip in April 2010. Mr. Sun was
concerned because of the 12-hour length of the flight; he even considered
upgrading his flight so that he would have more leg room, but this was too
costly. Exercises and stretches were discussed by Dr. Tsang with Mr. Sun. In
fact, the plaintiff’s concern was well founded as when he was in Taiwan in
April 2010 he did suffer an exacerbation of his injury and had to attend at the
Lo-Tung Hospital. While he was not admitted to the hospital, he was prescribed
medication and treated.

[11]        
On May 13, 2010 Mr. Sun, having returned from his business trip to
Taiwan, saw Dr. Tsang and complained of ongoing left side mechanical lower
back pain. Physical examination revealed tenderness when Dr. Tsang’s
palpated Mr. Sun’s paralumbar muscles. The doctor reviewed exercises with Mr. Sun
to alleviate this. On June 3, 2010 he returned for reassessment. Dr. Tsang
wrote, “[h]e still felt an achy pain in his lower back.” No other physical
symptoms presented. On June 29, 2010 Mr. Sun reported that he was
receiving acupuncture treatment and noticing improvement in his lower back.
“[h]e felt that his exercise tolerance was limited, but he was trying to
increase his exercise intensity gradually.” On July 27, 2010 Mr. Sun felt
much better overall with continued acupuncture therapy. He had stopped
physiotherapy two weeks previously. He was exercising regularly in a graduated
fashion. Subjectively, he described his pain as improved by more than 60%. For
at least half of his waking hours, he felt pain-free.

[12]        
He was seen again by Dr. Tsang on September 28, 2010 and stated
that he was virtually back to normal. He had stopped receiving acupuncture
treatments. On February 22, 2011 he was again seen by Dr. Tsang,
functioning normally, having reported that he had been able to go snowboarding
and that he was doing the regular exercises, which had prevented a relapse of
his back pain.

[13]        
He indicated that, following the physiotherapy treatment, which had been
prescribed to him by Dr. Tsang, the numbness in his left arm and left leg
began to resolve in three to six months. Approximately eight to ten months
passed before the numb feelings completely resolved.

[14]        
Writing on July 23, 2011 Dr. Tsang states:

In summary, Mr. Sun suffered
soft tissue injuries of his neck and back as a result of his involvement in a
motor vehicle accident on October 31, 2009. Recovery from his injuries was slow
and required a prolonged period of physiotherapy, independent exercises, and
ultimately acupuncture. While he was able to continue with his usual work
following the motor vehicle accident, the quality of his life with respect to
social, recreational, and overall functioning was affected by his injuries. He
has made slow but continued progress in his rehabilitation. At the time of this
writing, he has recovered fully from his injuries. No future disability or
complication is anticipated.

[15]        
At the plaintiff’s discovery, which occurred on July 12, 2011, he indicated
that he felt about 95% recovered but that he had some residual problems such as
a mild occasional soreness in his neck. He stated:

[16]        
The mild soreness occurs from him being in certain positions, such as
driving for lengthy periods or sitting for prolonged periods.

[17]        
In conclusion, while the plaintiff deposed he still suffers pain on
occasion necessitating physiotherapy treatments, he is now largely recovered from
his neck and back injuries which lasted approximately one year and nine months
The numbness to his left arm and left leg had completely resolved by eight to ten
months after the accident with the help of physiotherapy. This Court accepts
what the plaintiff has said about his injuries and that taken together with
Dr. Tsang’s report indicating that the plaintiff’s injuries continued past
the April 2010 CL19 report date. As noted above, Dr. Tsang, in his medical
summary report dated July 23, 2011, stated that Mr. Sun suffered soft tissue
injuries of his back and neck as a result of his involvement in the motor
vehicle accident on October 31, 2009. Recovery from his injuries continued
slowly, but by July 23, 2011 he was completely recovered according to Dr.
Tsang’s writing on that day. While there is no further medical reports, he
still occasionally seeks chiropractic treatments from Dr. Chan and
occasionally has flare-ups, including September and November of 2011.

[18]        
The plaintiff, as noted, sought out acupuncture and physiotherapy to
assist in his recovery. He also sought chiropractic treatments from Dr. Fredrick
Chan. He first saw Dr. Chan on August 16, 2011.

6.    Issue – Assessment
of Damages

[19]        
The issue in this trial is the amount to be assessed for non-pecuniary
damages for the plaintiff, in the circumstances of this accident. The
defendants say this was a low velocity impact accident. They do not say that
the plaintiff has suffered no injuries, but rather submit that his injuries resolved
earlier than indicated in Dr. Tsang’s medical expert report, and that non-pecuniary
damages should be assessed in the range of $5,000 to $10,000.

[20]        
The defendants agree to his past wage loss with the necessary deductions.
However, the defendants submit that the special damages claimed here should cease
as of the end of August 2010. The defendants agree that all of the
physiotherapy payments made by Mr. Sun for his treatment, totalling $960,
should be paid. In respect of the acupuncture payments, which total $1,140, the
defendants say that only $960 of that should be payable which accords with the
cut-off date of the end of August 2010, after which they say the plaintiff’s
injuries had resolved. In respect of the chiropractor, the total amount paid by
Mr. Sun to date for his treatment is $870; the total the defendants say
should be paid is five visits at $45 each visit, together with the initial
visit of $60 but not the remainder, again coinciding with the date of the end
of August 2010 when the defendants say the plaintiff was recovered from his
injuries. In Taiwan, the special expense was for the medication that he was
prescribed on April 19, 2010 when he attended at the hospital for $16.50. This
amount is not in issue.

[21]        
The plaintiff’s evidence is unopposed, there are no credibility issues
in this matter, and I accept his descriptions of the pain he endured and his
description of his injuries.

7.    Damage to Plaintiff’s Vehicle

[22]        
The damage to the vehicle was described by the assessing adjuster, with
respect to the bumper, as a plastic face all warped, and a gross total damage
of $927.31 was found including all taxes. Total labour costs were estimated to
be $607.20.

8.    Injuries from Low Velocity Accident

[23]        
From the pictures that were put in evidence on the summary trial, the
vehicle appeared to have sustained only minor damage, but again that does not
mean that the plaintiff did not suffer genuine injuries, nor is it the case
that with soft tissue injuries there is always a physical presentation that can
be seen or felt. The pain remains real to the victim of the accident, and his
credibility is not an issue on this application.

9.    Position of the Defendants

[24]        
The defendants submit, however, that the plaintiff was recovered by April
2010. He could do all the pre-accident activities he used to do by that time.
The basis for the defendants’ opinion that the plaintiff had largely recovered
as at that date is taken from the CL19 report of Dr. Tsang on April 6, 2010. The
plaintiff stated that he had seen the CL19 and was aware that Dr. Tsang
had indicated that he was capable of working and that he was capable of doing
non-work activities, including golfing. The relevant discovery evidence is as
follows:

[25]        
I note, however, that Dr. Tsang’s three-page report dated July 23, 2011
is far more thoughtful and detailed than the CL19 report form with
predetermined questions filled in by Dr. Tsang. The plaintiff had deposed at
his discovery held on July 12, 2011 that as at that specific date he felt
better; however, he deposed he had not resumed many activities. He has not
resumed golf or snowboarding since July 2011.

10.   Pre-Accident
and Post-Accident Health

[26]        
Prior to the accident the plaintiff deposed that he had no health
issues. In the winter he would go snowboarding at least eight to nine times in
a season and in the summer and fall he would golf or attend a driving range at
least once a week. He noted that he only began feeling pain after the accident
and attended at his family doctor as noted above. He deposed:

By March 2010, I continued to
experience intense back pain if I drove for more than an hour or sat for
extended periods of time.

[27]        
He tried to alleviate his pain by attending at the acupuncture and
physiotherapy treatments. He deposed that by September 2010 he felt his back
pain had improved somewhat so he discontinued the acupuncture treatments and
carried on only with the at-home exercise taught to him by the physiotherapist.

[28]        
By the summer of 2011, he was performing the exercises he had learned at
physiotherapy for 30 minutes about once or twice a week. He deposed that his
“neck pain [had] recovered to about 95% of its pre-Accident status about one
year after the Accident”.

[29]        
By the time of the examination for discovery, held on July 12, 2011, he
deposed that he felt he had recovered

95% from the injuries caused by
the Accident. However, I continued to experience occasional lingering soreness
in my neck and back. I also continued to feel weaker than before the Accident.

He continued to suffer occasional pain in his back. I find the
plaintiff is stoic, and, while he does not exercise at a gym, I accept he was
an active before the accident. After the accident, he refrained from lifting heavy
objects. It was not until summer 2011 that he believed his injuries had
resolved enough to enable him to resume his earlier activities including lifting
heavy objects, such as furniture and groceries. However, after he made the attempts
at lifting, the flare-ups of his pain increased. He attended Dr. Tsang again
in September 2011 to describe the flare-ups. He was prescribed Celebrex for the
pain on November 24, 2011.

[30]        
He has not resumed golfing, having only attended the driving range once
in July 2011. He had snowboarded twice in December 2010, but he felt weaker.

[31]        
Mr. Sun used to travel to Portland for vacation trips before the
accident. He tried to take a trip to Portland after the accident. In connection
with that, his evidence on the discovery was:

[32]        
Mr. Sun’s recollection was that, in April 2010 his doctor suggested that
he should start trying out all of the activities that he used to do. He did not,
however, and when he did, he felt it worsened his progress and it was not an
enjoyable experience for him.

11.   Income
Loss

[33]        
The CL15 form for income loss was filled out by the vice president, Ellen
Liu, of Richwood Trading Ltd. and was before the Court. I accept the
plaintiff’s income loss as being $2,009.61 less the payroll deductions set out
by Ms. Liu: $320.92 for Income Tax, less $34.88 for Employment Insurance,
less $92.59 for Canada Pension Plan. I accept that the plaintiff suffered a
loss of income in the amount of $1,561.22.

12.   Special
Damages

[34]        
I award special damages to the plaintiff in the amount of $4,172.60,
having been incurred through physiotherapy appointments, acupuncture and travel
expenses. I accept his evidence respecting the type and duration of treatment
taken to mitigate his pain from these injuries. Having found that the plaintiff
sustained the injuries he deposed to above, with occasional flare-ups, I do not
disallow any of his claims for special damages.

13.   Non-Pecuniary
Damages – Parties’ Position

[35]        
The plaintiff submits an appropriate award for non-pecuniary damages would
be in the range of $25,000 to $30,000. The defendants submit the appropriate
range for damages is somewhere between $5,000 and $10,000. Each side provided authorities
in support of their positions.

A.  The Plaintiff’s Position

[36]        
The plaintiff referred to Cariglino v. Okuda, 2011 BCSC 1429 [Cariglino].
In Cariglino, the collision was described by the plaintiff as a “hard
impact” (para. 15). She felt immediately shaken and disoriented, her right
elbow and right collar were hurt and she began getting a headache. It continued
to worsen the next day with a pounding headache pinching between her shoulders
and a burning sensation in her neck and collar bone. While the burning
sensation resolved the following day, she still attended a walk-in clinic five
days after the accident. The notes of one of the walk-in clinic’s treating
doctors indicated “pain [to the] left side [of the] neck, left collar bone,
sore movement, left neck felt hot, tender right neck, pain flexion, lateral
flexion to the left, limited flexion, lateral flexion ….” Mild soft tissue
injuries were diagnosed as well by her general practitioner. She had never
complained of those prior to medical visit. Approximately two weeks later, her general
practitioner noted her complaints included persistent soft tissue injury of the
neck, trapezius and episodes of low back pain and chronic low back pain and hip
pain with a compensatory aggravation of the left side of her body, which were
all related to the motor vehicle accident. She also had dizzy spells and
complained of excruciating pain in the right side of her head. McKinnon J.
noted that the defendant had failed to provide any medical evidence to the
contrary and stated at para. 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.

[37]        
Ultimately, the court awarded $35,000 in non-pecuniary damages.

[38]        
I find that the injuries suffered by the plaintiff in that case, given
that the medical opinion was the plaintiff was only 70% recovered one year
following the collision and that it was accepted that she had some difficulty
which had continued to the date of trial, even anticipating that she should
soon be fully recovered, to be unlike the situation before the Court. Here, the
plaintiff is largely recovered.

[39]        
The plaintiff also provided to the Court the decision, De Leon
v. Harold, 2010 BCSC 1802 [De Leon]. In De Leon, Power J.
awarded $12,000 in non-pecuniary damages, the plaintiff having discharged the
burden that soft tissue injuries to her back and neck were a result of the
accident. As in the present case, the plaintiff thought immediately following
the accident that she was fine. She continued on to her work as a registered
nurse. While she worked the day of the accident, the next day she called in
sick. She attended at her physician and was diagnosed with soft tissue injuries
to her neck and back. Having complained of mid-back pain, she was advised to
embark on a course of therapy, to take anti-inflammatory medications, as well
as to take a week or two off from work. The injuries were substantially
resolved within two months of the accident and the injury was almost completely
resolved within six months. I find that the plaintiff’s injuries in that case were
substantially less severe than the plaintiff’s here.

[40]        
In Khangura v. Zhang, 2007 BCSC 1289 [Khangura], also
provided by the plaintiff, Rice J. reviewed an accident where the
plaintiff’s vehicle’s repair cost was $4,650.12. The injuries to the plaintiff consisted
of pain and stiffness in the neck, shoulders and lower back. The injuries were
healed substantially over the year following the accident, except for lingering
lower back pain. His physician, however, had indicated that the lower back pain
would go on indefinitely. In the decision, there were, additionally, credibility
issues which do not arise here.

[41]        
Mr. Justice Rice helpfully summarized a number of cases considering
non-pecuniary injuries in similar circumstances and those are set out in
para. 13:

Plaintiff’s authorities:

(a) White v. Stonestreet, 2006 BCSC 801:  The
plaintiff was rear-ended by the defendant’s car. The significant component of
the plaintiff’s claim for damages was based on his lower back symptoms. The
plaintiff testified about a prospective business venture at the Tsawwassen
ferry terminal that both he and his father did not proceed with because the
plaintiff was not up to it. The plaintiff was awarded $35,000 for non-pecuniary
damages, $1,401.29 for special damages, and nothing for his loss of opportunity
to pursue the business venture claim.

(b) Lane v. Ford Credit Canada Leasing Limited et al,
2003 BCSC 701:  The defendant drove through a red light and hit
the plaintiff’s passenger side of the vehicle. The plaintiff stated that she
suffered four years of significant painful debilitation symptoms, which included
headaches, as a result of the accident. The plaintiff was awarded $40,000 for
non-pecuniary damages; past wage loss of $2,058.84; special damages for
$2,090.35 and cost of future care of $1,000, with interest on the past wage
loss and special damages awarded.

(c) Verhnjak v. Papa, 2005 BCSC 1129:  The
plaintiff was 55 years old when she was broadsided in a motor vehicle accident.
Her vehicle was a write-off. The plaintiff was attending a residential care
course in Surrey, British Columbia at the time of the accident. She was under
significant financial stress as her husband was ill and their piano
reconstruction business had gone under. She was on welfare and living with her
children for a time. She had pain in her upper back, neck and headache. Almost
three years post-accident the plaintiff’s general practitioner concluded that
her soft tissue injury in the cervical spine and upper and lower back had not
resolved. Prognosis for further improvement was poor. The plaintiff was awarded
$40,000 for non-pecuniary damages; $20,000 for loss of future earning and
$2,307.63 in special damages.

(d) Gorosh v. Bowen et al, 2005 BCSC 917:  The
plaintiff sought damages from a motor vehicle accident that occurred nine years
earlier. The plaintiff was 14-1/2 years old at the time of the accident and a
passenger in the back seat of a car that was broadsided. She was diagnosed the
next day as having neck and back strain. The plaintiff did not miss any school
due to the accident. The plaintiff continued to suffer from chronic pain,
depression, headaches and insomnia. She was unlikely to fully recover from her
injuries. The plaintiff was awarded $40,000 for non-pecuniary damages; $30,000
for loss of future earning capacity; $3,200 for future cost of care; $1,000
plus interest for loss of past earning capacity and $1,928.23 plus interest for
special damages.

(e) Klippenstein v. Parmar et al, 2003 BCSC
1138:  The plaintiff’s truck was hit from behind and spun around into the
path of another vehicle. The plaintiff experienced right shoulder pain with
restricted shoulder motion, loss of grip strength in his right hand, and pain
located in his upper back and neck. There was only a modest prospect of
resolution. His family physician recommended physiotherapy and time off work. The
defence said that the plaintiff failed to take recommended physiotherapy
treatment. Future wage loss was assessed at $50,000. Non-pecuniary damages were
awarded for $40,000, after a 20% reduction for failure to undergo
physiotherapy.

(f) Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178
(C.A.), 123 D.L.R. (4^th) 652:  The plaintiff was injured in a
motor vehicle accident which resulted in the loss of physical capacity and she
was prevented from performing some household tasks. The plaintiff’s husband
shared in the housework and takes. The plaintiff was entitled to damages for
loss of ability to perform household tasks in the amount of $50,000 for
non-pecuniary damages and awarded $3,000 for the cost of future housekeeping.

(g) McTavish v. MacGillivray, 2000 BCCA 164: 
This was an appeal from an award to the plaintiff for loss of housekeeping
capacity. The plaintiff was injured in two motor vehicle accidents and her
ability to do housework was very limited. The Court of Appeal upheld the
judge’s earlier awarded granted to the plaintiff of $20,800 for past loss of
household service and $43,170 for future loss of housekeeping capacity.

Defendant’s authorities:

(a) Al-Mundlawi v. Gara, 2005 BCSC 740:  The
court accepted that the plaintiff had been injured in a rear-end collision with
extensive damage to his vehicle. The plaintiff suffered mild tissue injuries to
his back and neck which resolved within two months with residual discomfort for
an additional four months. He was awarded $7,500 in non-pecuniary damages.

(b) Darji v. Regimbald, 2006 BCSC 834:  The
plaintiff suffered mild whiplash injury, which gradually had improved within
one year of the accident. There was evidence that the plaintiff had
pre-existing lower back pain. He was awarded $12,000 in non-pecuniary damages.

(c) Barrows v. Wong, 2006 BCPC 407:  The
plaintiff suffered mild soft tissue injury to the neck and back and was awarded
$5,000 in non-pecuniary damages. The plaintiff returned to work full time
approximately seven weeks after the accident and was fully recovered some five
months afterwards.

(d) Rempel v. Froese, 2006 BCPC 481:  The
plaintiff’s soft tissue injuries were chiefly resolved within seven months with
some residual discomfort thereafter. The plaintiff was awarded $7,500 in
non-pecuniary damages.

(e) Qualizza v. Lee, 2007 BCSC 303:  The
plaintiff suffered headaches and soft tissue injuries to the back and neck,
which passed the acute stage within a few weeks with residual pain lasting
approximately 18 months. The court awarded non-pecuniary damages of $12,000.

(f) King v. Buccini, 2006
BCSC 1587:  The plaintiff had short-lived back symptoms and neck pain
persisting for approximately six months. He still suffered from minor residual
effects. He received an award of $5,000 for non-pecuniary damages.

[42]        
Ultimately Rice J. awarded $26,000 in non-pecuniary damages in Khangura
for the plaintiff’s injuries.

[43]        
The plaintiff also relied on Lee v. Hawari, 2009 BCSC 1904 [Lee].
In that case it was found that the plaintiff continued to suffer significant effects
from her injuries over a period of six months, until March 2007, with gradual
improvement over that time. The pattern of her pain, however, seemed to change
significantly. The plaintiff also had not made meaningful efforts to undergo rehabilitation
which had been suggested to her by her doctor. It was found by the Court that
she continued to suffer symptoms of her injuries more than two and a half years
after the accident. Although the prognosis was that she will fully recover,
Adair J. awarded $21,000 in non-pecuniary damages. That is not the
situation in the case at bar in that the duration of the injuries in Lee
was longer than the injuries in the present case. Additionally, here, the
plaintiff has sought out physiotherapy, acupuncture and chiropractic treatments
to resolve his pain.

[44]        
The plaintiff cited Millala v. Shaw-Smith, 2008 BCSC 1481 [Millala].
The plaintiff suffered a few days loss of work, but returned to work suffering
flare-ups in his lower back, lumbar region which was his chief area of pain. The
plaintiff in Millala was sent for an independent medical examination. In
that case the plaintiff was seeking non-pecuniary damages in the range of $40,000
to $50,000. Counsel for the defendants argued that the award should be far
less, in the range of $8,000 to $14,000. Non-pecuniary damages were awarded in
the amount of $35,000 by Arnold-Bailey J. The reason for that award was set out
by the court at para. 97:

[97]   I find that an appropriate
award of non-pecuniary damages in the present case is $35,000. This takes into
account the significant pain, suffering and disability experienced by the
plaintiff throughout the first several months after the accident, during which
time he was significantly incapacitated. It also takes into account the pain, discomfort
and loss of enjoyment of life that he has suffered thereafter, in terms of
being unable to sit comfortably and work at his computer for long periods of
time as demanded by his business, and being unable to pursue his former sports
and athletic activities at his pre-accident level. This amount also takes into
account that the plaintiff continues to suffer some flare ups in back pain from
time to time and experiences physical limitations depending on his activity.

I find the extent of the injuries in Millala were far
greater than the injuries in the present case. Here, the plaintiff has, for the
most part, recovered from his injuries and is not disabled or prevented from pursuing
activities based on physical limitations.

[45]        
The last decision cited by the plaintiff was that of Statton v. Haller
and Haller, 2006 BCSC 676 [Statton]. It was a low velocity collision,
although as noted, that alone does not mean that a person has not suffered an
injury, and no evidence was called on that point. The plaintiff in Statton had
neck and shoulder injuries which became stiff and sore. Her condition gradually
improved to the point where she felt that she had recovered 50% to 60%. Defence
pointed out in that case that the plaintiff had continued to play soccer and
baseball within seven days of the accident. The plaintiff testified, however,
that her ability to play sports was reduced. She was also observed by her
treating physician to have physical symptoms, including muscle spasms in her
neck and upper back. When she was seen some weeks after the accident had
occurred, her neck extensions were only one half of the normal range and the
movements were painful to her cervical spine. Other neck movements were only in
the three quarter range. Given these physical findings and the fact that the
plaintiff would likely have ongoing headaches requiring massage and
physiotherapy, the conclusion by the plaintiff’s physician was that even though
the accident had occurred three years prior, he wrote that there was “no
indication that the plaintiff’s problems would resolve themselves.”
Accordingly, the court awarded non-pecuniary damages of $26,000. Again, I find
that to be a more severe situation than the case at bar.

B.  The Defendants’ Position

[46]        
The defence relied upon Butler v. Blaylock Estate, [1981] B.C.J.
No. 31, a decision of McEachern C.J.S.C., as he then was. In that case the
plaintiff was 55 years of age at the time of the accident. He claimed for loss
of income and non-pecuniary damages for his injuries. He was awarded $7,500 for
non-pecuniary damages. The defendants here stressed paras. 18 – 20 of the
Chief Justice’s decision:

18     I am not stating any new principles when I say that
the Court should be exceedingly careful when there is little or no objective
evidence of continuing injury, and when complaints of pain persist for long
periods extending beyond the normal or usual recovery period.

19     An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true
reflections of a continuing injury.

20     I have already said that I
am not satisfied that the Plaintiff’s complaints of continuing pain are real. I
assess the Plaintiff’s general damages for pain, suffering and loss of
enjoyment of life, and the other elements of non-pecuniary damages, at
$7,500.00.

[47]        
Here, I find there is convincing evidence; the plaintiff had met the
burden of proof respecting his injuries. It is not suggested the plaintiff is
fabricating his pain or failed to mitigate. The position of the defendants, as
I understand it, is that the Court should analyze the evidence as a whole. In
cases where there is little in the way of objective findings, such as the
present, the defendants submit the Court must be “exceedingly careful.”

[48]        
The defendants also relied upon Price v. Kostryba (1982), 70
B.C.L.R. 397 (S.C.). In that case McEachern C.J.S.C. analyzed the difficulty
that whiplash injuries pose i.e. soft tissue injuries present little in the way
of objective findings and yet as noted by the Chief Justice, “every physician
knows some patients whose complaint continues for years, and some apparently
never recover” (at para. 4). Nonetheless, it was accepted that soft tissue
injuries do exist and the absence of physical symptoms is not an indication
that the plaintiff is not suffering pain from injuries caused by an accident.

[49]        
The decision of Brar v. Kaur, 2010 BCSC 1220, was also argued on
behalf of the defendants. In that case the plaintiff was recovered, according
to his physician, within six months. In regard to hearing an assessment of
damages by way of summary trial, Truscott J. held at paras. 42 and 43 as
follows:

[42]   It is near to impossible to assess credibility on a
summary judgment application supported only by affidavits. The plaintiff’s
injuries were only soft tissue injuries caused by a very minor accident and
those complaints were subjectively based and not objectively verifiable.
Accordingly the Court must be cautious in accepting his complaints as proven.

[43]   However Dr. Sandhu
does not suggest in his report the plaintiff is not to be believed on his
complaints or even suggest that he is exaggerating. He appears to have accepted
the plaintiff’s complaints as legitimate and consistent with the mechanism of the
accident and I likewise am prepared to accept the complaints of the plaintiff
as stated in his affidavit and as reported to Dr. Sandhu.

In that particular case, the
plaintiff had sustained soft tissue injuries to his neck and back which lasted
about six months. The court only awarded $4,000 for non-pecuniary damages.

[50]        
In the case of Dolha v. Heft, 2011 BCSC 737 [Dolha], also
relied on by the defendants, the plaintiff was awarded non-pecuniary damages
for soft tissue injuries resulting from a motor vehicle accident, although
minor in nature. The collision was described as a low velocity impact accident.
The motor vehicle accident had occurred on June 3, 2008 and the plaintiff last
saw her doctor for pain due to accident related injuries in November 2008. In
that case Bruce J. accordingly awarded only an amount of $7,000 for
non-pecuniary damages. Given the very short duration of the pain suffered by
the plaintiff in Dolha, it is unlike the present case.

[51]        
The defendants also relied on Gradek v. DaimlerChrysler Financial
Services Canada Inc., 2009 BCSC 1572. The accident in that case, occurred on
May 13, 2006. It was not disputed that the plaintiff was still seeing his
doctor in 2009 for difficulties arising from the accident including soft tissue
injuries to the neck and lower back. His injuries were not substantial however and
he showed no evidence of long term damages. The court found his evidence to be
“at times contradictory and confusing.” He was awarded $8,000 for non-pecuniary
damages.

[52]        
The defendants also relied upon Dolha v. Heft, 2011 BCSC 738 [Dolha
v. Heft] which was a companion case dealing with the sister of the
plaintiff in the earlier Dolha v. Heft decision (see para. 49
herein). The second matter proceeded by way of summary trial pursuant to Rule
9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. The accident
had occurred June 3, 2008. The plaintiff complained of neck pain, upper back
pain, lower back pain and headaches and dizziness. She was seen by a physician
and prescribed Motrin, heat and exercise. She also sustained nausea and
dizziness but those did not persist long after June 10, 2008 and were resolved
within six months after the collision. The back and neck pain improved slowly
and completely resolved by November 10, 2010. The court held in Dolha v.
Heft at para 15:

[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.

[53]        
In regard to objective injury findings, it is important to note that Bruce J.
agreed with the earlier cited authorities respecting low velocity impacts and
their relationships to injuries. On this point, Bruce J. stated at paras. 17
to 18:

[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.

The court awarded $10,000 in non-pecuniary damages. Here, in
contrast with Mr. Sun, the plaintiff has sought out medical treatment and
deposed to his ongoing flare-ups of pain which result from doing certain
activities.

[54]        
The defendants also relied on the decision in Ceraldi v. Duthie,
2008 BCSC 1812, which was decided after a summary trial. The plaintiff suffered
soft tissue injuries to her neck, left shoulder and mid back which caused her
pain and suffering from a motor vehicle accident. She could not work for two
months. She also sustained sleeping difficulties. She was found to have
suffered mild to moderate soft tissue injuries that had largely resolved within
eight months of the accident and accordingly she was awarded $13,000 in non-pecuniary
damages.

14.   Conclusion

[55]        
In all of the circumstances, I find while the plaintiff’s injuries had
largely resolved within one year and nine months, he has some ongoing
complaints of pain, coupled with his inability to perform certain activities as
a consequence of his fear of causing flare-ups to his lower back such as carrying
heavy objects.

[56]        
Taking evidence as a whole, I find that the plaintiff has, on a balance
of probability, proved he was injured from this accident for one year and nine
months and that he presently has some minor complaints on occasion relating to
his lower back and neck, but that these are not preventing the plaintiff from
enjoying his pre-accident state of health and activity level.

[57]        
I award the following:

[58]        
In the event that counsel is unable to reach an agreement respecting
costs, counsel may, within 30 days of the release of this judgment, speak to
costs by advising the registry.

“Maisonville J.”

____________________________________

The Honourable Madam Justice Maisonville