IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120523

Docket: M071128

Registry:
Vancouver

Between:

Kulvinder
Singh Sangha

Plaintiff

And:

Yi San (Sandy)
Chen

Xuyen
Thi Kim Pham

Defendants

Before: The Honourable Madam
Justice Boyd

Reasons for Judgment

1.0          
Introduction

[1]            
The plaintiff claims damages arising from a motor vehicle accident which
occurred on May 31, 2005, when his taxi cab collided with a vehicle owned
by the defendant Xuyen Thi Kim Pham (“Pham”) and driven by the defendant Yi San
Chen (“Chen”).  Liability and damages are in dispute.

2.0          
The Accident:

[2]            
The accident occurred at approximately 4:45 p.m. in Vancouver, at
the intersection of Willow Street and West 8^th Avenue.  The plaintiff
had just picked up a passenger, Dr. Becky Temple, at the nearby BC Cancer
Control Agency and was driving her to a hotel in downtown Vancouver, travelling
northbound on Willow Street.  At this point Willow Street is a through street
for northbound and southbound traffic, uncontrolled by either traffic lights or
signage.  The posted speed limit for northbound traffic is 50 kph.  Eastbound
or westbound traffic on West 8^th Avenue is governed by stop signs on
either side of the intersection.

[3]            
The plaintiff testified that he was driving approximately 30-40 kph as
he headed northbound on Willow Street, well within the speed limit.  There is a
slight downhill grade on Willow Street as it heads north.  He has no
recollection of seeing any traffic on Willow Street.  Suddenly, without
warning, he says that the front driver’s side fender of his vehicle was struck
with “extreme force” by the defendant’s vehicle.  He says that at no point
before the impact did he see the defendant’s vehicle, or hear the sound of a
horn or brakes.  He insists that the defendant’s vehicle had run the stop sign facing
eastbound traffic and had “t-boned” his vehicle as it drove through the
intersection.

[4]            
He describes the impact as “very hard”.  In the instant of impact, he
says that his body was thrown to his left, with his body and the left side of
his head striking the driver’s side window.  The plaintiff was not wearing any
seatbelt.  In accordance with the local City of Vancouver by-law, he was not
required to wear a seatbelt since he was driving a taxi and travelling under 70 kph.

[5]            
The plaintiff’s passenger, Dr. Temple, was seated in the right rear
passenger seat wearing a lap and shoulder seatbelt.  She had just completed a
day’s study at the local Cancer Agency and was en route to her hotel in
downtown Vancouver.  Just before the accident, she was holding a cup of coffee
in her hand and was looking down, either reading or looking at her cell phone,
and not paying any attention to traffic.  She has no idea of the taxi’s speed
of travel.  Without warning, she said she felt “a sudden jerking of the
vehicle” in a forward direction, “as if the driver had slammed on the brakes”. 
Just a moment later, (she said perhaps a half second or a second later), there
was an actual impact.  She conceded that she is not good at estimating time. 
That said, she was adamant that the “jerking motion” and the impact which
followed were two discrete episodes.  While the impact almost immediately
followed the jerking motion of the taxi, she said that it was “quite
distinct”.  At some point, the coffee she was carrying was spilt into her lap.  She
did not have the impression that the taxi moved very far after the impact.

[6]            
The defendant Chen was 22 years of age on the date of the accident.  She
had driven for approximately 2-3 years before the accident and while she did
not own her own car, she had regularly driven her boyfriend’s car and was
familiar with it.  On this date, she had borrowed his car to drive to her
doctor’s clinic on West 8^th Avenue.  At the time of the accident,
she was returning home from that medical appointment.  Her sister was riding as
a passenger in the right front passenger seat.

[7]            
Chen testified she was very familiar with this particular intersection,
having driven to and from her doctor’s office on many previous occasions.  She
says that she understood how “very busy” the street was in this area, that is
at or near the intersection of West 8^th Avenue and Willow Street. 
As she put it, there is usually “lots of traffic”, both pedestrian and
vehicular.

[8]            
She says that she drove eastbound along West 8^th Avenue and
came to a stop at the stop line, behind the stop sign at the intersection of
West 8^th Avenue and Willow Street.  Her intention was to travel
through the intersection and continue eastbound along Willow Street.  From her
stopped position she says that she was unable to see beyond the car parked to
her right, on the west side of Willow Street, and therefore could not see
whether there was any northbound traffic approaching on Willow Street.  Thus,
she says she moved her vehicle forward at bit and stopped, so as to see past
the parked car.  Having looked and having seen no approaching southbound or
northbound traffic, she says that she began to drive, travelling slowly forward
through the intersection.  As she drove forward, she concedes that she did not
again check to her left or right, but simply looked straight ahead as she
travelled forward.

[9]            
She says that she had almost reached the other side of the intersection,
when the right front corner of her vehicle was suddenly hit on the right side
by the plaintiff’s northbound vehicle.  Before the impact she did not hear the
sound of a horn or brakes being applied.  She says that at no point before the
impact did she see the plaintiff’s vehicle.  Her impression was that her
vehicle was suddenly “shifted to the left”.  Her vehicle was spun in a
counter-clockwise motion and came to rest pointing up against the stop sign for
westbound traffic in the northeast corner of the intersection.

[10]        
The defendant’s sister, Winnie Chen, was riding in the right front
passenger seat.  Her evidence mirrored that of her sister.  While she did not
see the plaintiff’s vehicle at any point before impact, her impression was
that, given the force of the impact, it must have been travelling “very fast”.

[11]        
There is some conflict in the various versions of what occurred
following the accident.  The plaintiff insists that once he was able to get out
of the vehicle, he experienced “a spinning” in his head and felt “dizzy”.  He
says that he had a chance to look at the damage to his own vehicle and he
recalls that the other driver “was saying something” to him.  He says that he
did not talk to her but simply returned to the vehicle.  After approximately 10
minutes he says he called the dispatch operator to call another taxi.  He
believed that he sat in the taxi waiting for the ambulance which arrived some
15-20 minutes later.

[12]        
Dr. Temple recalled that relatively quickly after the accident,
both she and the plaintiff were out of the taxi.  She had no recollection of
the plaintiff calling dispatch but she assumes he did, since within a short
period another driver arrived and offered to resume her trip downtown.  She
says that while both she and the plaintiff were “stunned”, as in “surprised,
shocked, or distracted”, she saw no indication that his level of consciousness
had changed.  She had no recollection that he appeared either disoriented or in
distress or otherwise exhibiting signs of having lost consciousness.  She does
not specifically recall asking the plaintiff any questions about his condition
but she says that as a physician, following an accident, it would simply have
been the norm for her to make such inquiries.

[13]        
So far as she was concerned she had been in a “minor accident”.  She
experienced no loss of consciousness, suffered no injuries of any kind and felt
no irritation or redness from the seatbelt she was wearing.  She surmised that
“everyone seemed fine”.  Following a three-way conversation between herself,
the plaintiff and the other taxi driver, she accepted the latter’s offer to
resume the trip downtown.

[14]        
Chen recalled that following the accident, the plaintiff was outside his
taxi.  Both Chen and her sister had been wearing seat belts.  Neither had been
harmed in any way.  She recalled that the plaintiff spoke to her but that she
could not understand what he was saying.  It was clear to her that he was “very
angry”.  She too was angry.  She recalled a number of pedestrians about and
noted the plaintiff was walking around trying to find a witness to the collision. 
(The plaintiff denied doing so.)

[15]        
The police eventually arrived and spoke to both the plaintiff and the
defendant Chen.  Both vehicles remained in the intersection blocking traffic. 
Chen adopted the police diagram as accurately reflecting the positions in which
both vehicles came to rest in the intersection.  The defendant’s vehicle is
shown resting in the north east corner of the intersection, pointing north east
against the stop sign facing westbound traffic on West 8^th Avenue. 
The plaintiff’s vehicle is shown on Willow Street, within the eastbound lane of
traffic, also pointing north east (indicating that the vehicle had been rotated
somewhat clockwise).  The vehicle photos show damage to the right front fender
of the defendant’s vehicle and the left front fender of the plaintiff’s
vehicle.  While it is not determinative, I note that following the accident the
attending officer who investigated the accident, recorded under the
Contributing Factors portion of the Police Traffic Accident Investigation
Report, that both the plaintiff and the defendant had been “inattentive” (per
Code 85).

[16]        
While no accident reconstruction evidence was called at trial, the
parties accept that on impact, the plaintiff’s vehicle rotated slightly
clockwise to the right while the defendant’s vehicle rotated counter-clockwise
and came to rest in the north east corner of the intersection.

2.1          
Relevant Statutory provisions:

[17]        
The relevant governing portions of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, (the “Act”) provide as follows:

s.186      Except when a peace officer directs otherwise, if
there is a stop sign at an intersection, a driver of a vehicle must stop:

(a)  at the marked stop line, if any,

(b)  before entering the marked
crosswalk on the near side of the intersection, or

(c)  when there is neither a marked
crosswalk nor a stop line, before entering the intersection, at the point
nearest the intersecting highway from which the driver has a view of
approaching traffic on the intersecting highway.

s.175(1): If a vehicle that is
about to enter a through highway has stopped in compliance with section 186:

(a)  the driver of the vehicle must
yield the right of way to traffic that has entered the intersection on the
through highway or is approaching so closely on it that it constitutes an
immediate hazard, and

(b)  having yielded, the driver may
proceed with caution.

s.175(2): If a vehicle is
entering a through  highway in compliance with subsection (1), traffic
approaching the intersection on the highway must yield the right of way to the
entering vehicle while it is proceeding into or across the highway.

2.2          
Liability:

[18]        
The plaintiff submits that this is a case where the defendant ran the
stop sign for eastbound traffic.  However, assuming the Court finds that the
defendant did stop at the stop sign for east bound traffic, the plaintiff
submits it is clear that before entering the intersection, the defendant failed
to keep a proper lookout for approaching northbound traffic.  The plaintiff
says that his vehicle had the right of way and that since his vehicle
constituted an “immediate hazard” to the defendant, he was not statutorily
obliged to yield his right-of-way to her vehicle pursuant to s. 175(2) of
the Act.

[19]        
In contrast, the defendant submits that she did come to a stop at the
stop line; that she then moved forward slowly to see beyond the parked car; and
that she satisfied herself there was no approaching northbound traffic or any
traffic which would constitute an immediate hazard before she entered the intersection. 
She says that she thus satisfied her statutory duties under the Act and that
had the plaintiff been paying attention and not travelling at such a high rate
of speed, her vehicle was there to be seen by him as he drove his vehicle into
the intersection.

[20]        
The defendant relies heavily on the fact that the point of impact
occurred in the eastern half of the intersection, from which it may be inferred
that by this point the Chen vehicle had already crossed over half the
intersection while the plaintiff was apparently just entering the
intersection.  Relying on Dr. Temple’s evidence, the defence submits that
contrary to the plaintiff’s evidence, the plaintiff had actually seen the
defendant’s vehicle as he travelled down the hill and had even attempted to
apply his brakes to avoid the impact, when he struck the right front corner of
the Chen vehicle.

[21]        
The defence relies on several authorities: Lindberg v. Siu, 2006
BCSC 1349, Amador v. Hans, 2004 BCSC 348 (rev’d on damages
2005 BCCA 514); and Ryon v. Whitehouse, 2008 BCSC 1090 (rev’d
on other grounds 2009 BCCA 304).

[22]        
In Amador, the plaintiff, like the defendant here, stopped
at a stop sign and then entered the intersection when he said the defendant’s
vehicle was still a block away, approaching in the eastbound lane.  He said he
did not see the defendant’s vehicle again until immediately before the
collision.

[23]        
Masuhara J. held that fault rested largely but not solely with the
defendant.  He held that the plaintiff ought to have proceeded with caution per
s. 175, and kept an eye on the approaching vehicle as he progressed across
the intersection.  That said, once the plaintiff was in the intersection, the
Court held the plaintiff could expect that oncoming vehicles would respect the
priority of his position.  Since he had substantially entered the intersection,
the plaintiff became the dominant vehicle to which the defendants should have
yielded.  Had the defendant exercised ordinary care and judgment, the Court
held he could have avoided colliding with the plaintiff.  Thus while:

the plaintiff may have been
somewhat careless or erroneous in entering the intersection and not proceeding
with caution, it was the negligence of [the defendant] that made the accident
inevitable.  Had [he] seen the plaintiff’s vehicle proceeding through the
intersection, he would have had sufficient opportunity to avoid the accident.

He apportioned liability 90% to the defendants and 10%
to the plaintiff.

[24]        
The Amador decision was followed by Justice Wong in Ryon. 
There the plaintiff saw the defendant half a block away, determined he was not
an immediate hazard and entered the intersection.  The plaintiff had
“substantial entry” into the intersection, yet was found to have a continuing
duty to proceed with caution once she was into the intersection.  As Wong J.
noted, even though she might expect that oncoming traffic would yield the right
of way to her as the dominant driver under s. 175(2), she still had the
ongoing duty to proceed with caution and “she was erroneous perhaps somewhat in
not proceeding with  more caution before she crossed onto the far side lane”. 
Yet he found it was the defendant’s failure to “see what was there to be seen
and to modify his speed” that substantially caused the accident.  He
apportioned liability 90% against the defendant and 10% against the plaintiff,
however the case was reversed on appeal and a new trial was ordered due to
misapprehension of the evidence.

[25]        
At the very least, the defendant’s counsel submits these authorities
stand for the principle that a driver must keep a proper lookout.  He submits
that where a driver with the right of way (the plaintiff) has failed to keep a
proper lookout and see what is there to be seen (i.e. that another vehicle has
entered the intersection), liability will rest wholly or substantially with the
driver who has failed to keep a proper lookout.

[26]        
Similar circumstances were considered in Salaam v. Abramovic,
2010 BCCA 212, a case not referred to by either counsel.  There, a
collision occurred at a “T”-intersection.  North and Southbound through traffic
was on a multi-lane road while eastbound traffic into the intersection was
controlled by stop sign.  The plaintiff was heading east into the intersection intending
to turn left onto the through road to head south.  The defendant was travelling
south on the through road and saw the plaintiff in the intersection in the
northbound lane moving slowly from the northbound lane into the left-hand southbound
lane when he was approximately 450 feet from the intersection.  The
defendant changed into the right-hand lane but did not slow.  The plaintiff
then suddenly accelerated in front of the defendant and stopped.  The defendant
braked, honked and geared down, but could not avoid the plaintiff.

[27]        
The Court of Appeal held that s. 175 was most applicable in the
circumstances.  The plaintiff had a duty to yield to through traffic that
amounted to an immediate hazard and then could only proceed with caution.  The
court recognized that the servient stopped driver only becomes the dominant
driver, pursuant to s. 175(2), when the driver entering the intersection
has complied with their statutory obligations:

17        … Section 175(2)
conditions any duty on the defendant to yield the right of way to the plaintiff
on the plaintiff having complied with her own statutory obligations.

[28]        
The plaintiff was found not to have complied with her statutory
obligations.  The trial judge said the following:

[48]      … The plaintiff …
did not stop at the stop sign, she did not ascertain whether there was any
through traffic, whether such traffic constituted an immediate hazard or not,
nor did she proceed with caution.

[29]        
Unlike the result in Amador and Ryon, substantial entry
into the intersection was not determinative to the application of s. 175(2).
The through driver remained the dominant driver because the defendant failed
to meet her statutory obligations.

[30]        
The Court of Appeal also recognized that, in addition to the statutory duties,
all drivers are subject to common law duties:

18        While the statutory provisions provide guidelines
for assessing fault in motor vehicle accident cases, they do not, alone,
provide a complete legal framework.

19        In Carich v. Cook (1992), 90 D.L.R. (4th)
322 at 326, 9 B.C.A.C. 112, this Court considered liability for an accident
that occurred when a vehicle turning left on a four-lane road was in collision
with a vehicle proceeding in the opposite direction, in the outside lane.  While
the Court was considering what is now s. 174 of the Motor Vehicle Act
rather than s. 175, it is my view that the opinion expressed by Lambert
J.A. has some relevance to this case:

The question as a driver turns left is whether there
is any vehicle in any approaching lanes that constitutes an immediate hazard.  If
there is, the turn should not be made.  If there is not, then the turn can be
made and of course, care should be taken throughout the turn and as each new
lane is entered to make sure that the situation as it was assessed when the
turn started has not changed in the meantime.  But that care is more a matter
of the ordinary duty of a reasonably careful driver and not a duty, in my view,
imposed specifically by s. 176 [now s. 174] which, in my view, states
the situation when the turn is commenced.  Once the turn is commenced both of
the drivers in that situation, the one who is doing a left turn and the ones
that are approaching straight ahead in a situation where a vehicle could turn
in front of them, all must keep a proper look-out.

20        To the extent that there is a need to refer to a
section of the Motor Vehicle Act for this proposition, one can turn to s. 144,
which requires drivers to drive with "due care and attention" and to
have "reasonable consideration for other persons using the highway".

21 In the end, a court must determine whether, and
to what extent, each of the players in an accident met their common law duties
of care to other users of the road.  In making that determination, a court will
be informed by the rules of the road, but those rules do not eliminate the need
to consider the reasonableness of the actions of the parties.  This is both
because the rules of the road cannot comprehensively cover all possible
scenarios, and because users of the road are expected to exercise reasonable care,
even when others have failed to respect their right of way. While s. 175
of the Motor Vehicle Act and other rules of the road are important in
determining whether the standard of care was met, they are not the exclusive
measures of that standard.

[Emphasis added.]

[31]        
 In determining whether the standard of care for each driver was
satisfied, the court must be cognisant of both the statutory regime and the
reasonableness of the actions of the parties.

[32]        
In the result, the court applied the standard of care to both drivers
and found the through, dominant driver 25% liable and the other driver 75%
liable.

[33]        
In Lindberg, Crawford J. recognized that dominant drivers
had a duty to keep a proper lookout and proceed through the intersection in a
reasonable manner.  While factually distinguishable and applying a different Motor
Vehicle Act provision, it is notable that Crawford J. found the dominant
driver 50% liable for the accident because she failed to keep a proper lookout
and failed to proceed through the intersection with due speed: para. 100.

[34]        
In the case at bar, I am satisfied that Chen stopped at the stop sign,
that she moved forward to check for northbound traffic and that, finding there
was none, she began to move out into the intersection.  Unfortunately from that
point forward she simply proceeded forward in her slow course across the
intersection, without keeping any continuing lookout for oncoming northbound
traffic.  Chen did not, therefore, become the dominant driver.  While she
stopped and yielded to traffic, she failed to proceed with caution.  This was
also a breach of her common law duty to other users of the highways because she
clearly failed to meet the standard of care as set out by Lambert J.A. in Carich
v. Cook: “care should be taken throughout the turn and as each new lane is
entered to make sure that the situation as it was assessed when the turn
started has not changed in the meantime”.

[35]        
For his part, I am satisfied that the plaintiff was likely travelling over
30-40 kph, although perhaps still within the speed limit.  Contrary to his
evidence, I find that at the last moment, he did (perhaps even unconsciously)
see the defendant’s vehicle and did slam on the brakes momentarily (accounting
for the initial jerking motion Dr. Temple experienced).  While he could
not avoid hitting the defendant’s vehicle (which by this time was in his lane
of traffic), his vehicle effectively came to a stop on impact, although
rotating somewhat to the right in a counter-clockwise direction.

[36]        
While the plaintiff may have remained the dominant driver, he had a duty
to exercise reasonable care even if those around him did not respect his
dominant position.  He clearly did not exercise reasonable care as he failed to
keep a proper lookout.  The fact the defendant proceeded slowly across the
intersection and that the collision occurred on the far side of the
intersection convince me he should have seen the plaintiff earlier.  Had he
kept a proper lookout he would have seen her vehicle earlier than he did and
thus could have applied his brakes to avoid the collision.  But he had not kept
a proper lookout and the accident ensued.

[37]        
In determining the division of liability, the court is to consider the
relative responsibilities of the parties for the accident: Salaam,
para. 35-38.  This is not a case similar to Amador, Ryon and Salaam
where one driver saw the other and made a decision to proceed in a certain
manner, while the other driver failed to see them and keep clear.  Here,
neither driver saw the other prior to impact when the circumstances are clear
that they should have.  Liability must therefore be shared more evenly.  That
being said, while both parties failed to keep a proper lookout, and failed to
see what was there to be seen, the defendant, as the servient driver, had a
higher standard of care and the plaintiff, to a certain extent, was permitted
to expect servient drivers to respect his dominant position.  Thus the
negligence of Chen contributed more to the accident than that of the plaintiff.

[38]        
In all the circumstances I find that the defendant is primarily liable
for this collision.  In this case, I would divide liability 60% against the
defendant and 40% against the plaintiff.

2.3          
Seatbelt defence:

[39]        
The defence submits that the plaintiff ought to also be found
contributorily negligent by reason of his failure to wear a seatbelt.  Although
exempted under the City of Vancouver by-laws from any obligation to wear a
seatbelt when travelling under 70 kph, common sense requires that one take
care of one’s own safety and reduce the likelihood of harm or injury.

[40]        
The defendant has admitted he understood that wearing a seatbelt would likely
reduce the risk of harm or injury.  Yet, relying on the City of Vancouver
by-law, he chose not to wear a seatbelt.  He knew that he would not be subject
to any fine for not wearing a seatbelt if he was travelling under 70 kph.

[41]        
In Jaswal v. Tait (1987), 15 B.C.L.R. (2d) 232 (S.C.), Ruttan J.
considered a similar Motor Vehicle Act Regulation which exempted taxi
cab drivers from fines for not wearing seatbelts.  He held that “though the
taxi driver is exempt from fines, if he was contributing to his own injuries by
not doing up his seat belt, the defendants are entitled to be relieved of some
degree of responsibility for the resulting injuries, as provided by the Negligence
Act, R.S.B.C. 1979, c. 298.”  (This decision was followed by Arkell J.
in Zoney v. Wakefield, [1994] B.C.J. No. 1299 (S.C.)).

[42]        
Thus in this case, I am satisfied that the plaintiff may be found
contributorily negligent for failure to wear his seatbelt, notwithstanding the
City of Vancouver By-law.  The issue however remains whether the defendants
have proven on a balance of probabilities that the plaintiff’s injuries would
have been prevented or lessened had he been wearing the lap-shoulder seatbelt
in his vehicle.

[43]        
The defence submits that there is no need for any expert evidence and that
as a matter of common sense it is clear that the plaintiff’s injuries would not
have occurred or would not have been as severe had he worn a seatbelt.  The
defence submits that had the plaintiff been properly belted and held in
position, he would not have experienced a forward and backward coil and recoil
motion, as well as a twisting to the left on impact.

[44]        
In Lakhani (Guardina ad litem of) v. Samson, [1982] B.C.J. No. 397
(S.C.), McEachern C.J. held:

I reject the suggestion that
engineering evidence is required in these cases.  The court is not required to
leave its common sense in the hall outside the courtroom, and the evidence is
clear that upon impact in both cases the Plaintiff’s upper body was flung or
thrown forward striking the dashboard or the steering wheel.  And common sense
tells me that the restraint of a shoulder harness would have prevented that,
and therefore some of the injury from having occurred.

[45]        
Again, in this case, the evidence is more nuanced.  The accident was no
simple rear end collision in which the driver was thrown forwards and then
backwards.  Here the left front corner of the plaintiff’s vehicle struck the
right front corner of the defendant’s vehicle.  The plaintiff’s vehicle stopped
almost immediately on impact, although it rotated clock-wise approximately
30-45 degrees until it was pointing approximately north-east.  While Dr. Temple
described being “jerked forward” in the vehicle, either just before or on
impact, the plaintiff described being thrown to his left at the point of
impact.  There is no reliable evidence concerning the speed of travel of either
vehicle on impact.

[46]        
On the evidence, I am unable to “intuitively” conclude that had he been
wearing an over-the-shoulder seat belt harness, the plaintiff’s upper body
would not have coiled and recoiled and then twisted to the left, striking the
driver’s window, as the defence theorizes were the dynamics here.  While the
plaintiff’s lower body may have been more firmly planted in place in the
driver’s seat had he been wearing a lap shoulder harness, I infer that his
upper body would have still been free to move to the left, at least somewhat. 
While I will review his injuries at greater length later in these reasons, I am
also unable to find that any specific injury suffered by the plaintiff was
caused by any specific movement in the vehicle which would have been avoided had
he been wearing a seatbelt.

[47]        
The defence relies on the fact that Dr. Temple was not injured in
the accident, a fact which the defence attributes to her wearing a seatbelt.  I
am unable to find that Dr. Temple avoided injury simply by virtue of
wearing a seatbelt.  The forward motion experienced by Dr. Temple was more
likely than not related to the initial sudden braking of the vehicle.  While
her coffee spilt in her lap, she did not describe any great forward motion. 
She described no movement to her left.  Since she was seated in the rear side
passenger seat, at the axis of the rotating vehicle, I expect she experienced
little in the way of any sideways shift.  In short, the plaintiff and the
passenger did not experience the same dynamic forces.

[48]        
In the end result, I am unable to find the plaintiff was contributorily
negligent by virtue of his failure to wear a seatbelt.

3.0          
Non-Pecuniary Damages:

3.1          
Positions of the parties:

[49]        
The plaintiff claims that as a result of the accident, he has suffered
soft tissue injuries which have resulted in myofascial pain and a chronic pain
syndrome, a mood disorder and ongoing depression.  While there was some
suggestion at trial that he might also have suffered a mild traumatic brain
injury (or at least a concussion) as well as post traumatic stress disorder,
those claims were not advanced in submissions.  Now, over seven years since the
accident, the plaintiff says that he has been left with an irresolvable chronic
pain condition and is thus unable to return to work as a taxi driver.  He
claims non-pecuniary damages of $125,000.  (Frangolias v. Parry, 2010
BCSC 630; Eccleston v. Dresen, 2009 BCSC 332; Murphy v.
Jagerhofer, 2009 BCSC 335; Adamson v. Charity, 2007 BCSC 671;
and Ashcroft v. Dhaliwal, 2007 BCSC 533)

[50]        
While admitting that the plaintiff did suffer soft tissue injuries as a
result of the accident, the defendants submit that those injuries ought to have
resolved within a minimum of nine months or a maximum of two years post-accident. 
To the extent the plaintiff continues to experience any pain, the defendants
say this is chronic pain which arises from his own depression or dysthymia
which pre-existed the accident and is not causally related to the accident.

[51]        
In the alternative, the defence submits that if the Court finds the
accident caused some or all of the plaintiff’s psychological symptoms, the
evidence establishes the plaintiff had a “crumbling skull” and would have
suffered from these symptoms in any event.

[52]        
In these circumstances, the defence says an appropriate range of damages
is $30,000-$40,000.  (Kirk v. Frocklage, 2003 BCSC 922; Rod v.
Greco, 2003 BCSC 935; and Morriss v. Leung, (1996) B.C.J. No. 242)

3.2          
Pre-accident medical history:

[53]        
Perhaps one of the most controversial areas of evidence in this action
concerned the plaintiff’s pre-accident medical history.  On the date of the
accident, the plaintiff was 41 years old.  Dr. Harvey Wong had been his
family physician in Surrey for the preceding 12 years.

[54]        
In his report of May 8, 2007 as well as at trial, Dr. Wong
reviewed Mr. Sangha’s pre-accident medical history.  Following a motor
vehicle accident in 1995, Mr. Sangha had suffered post-traumatic
headaches, sciatica, and strains to his shoulders, neck and thoracic and lumbar
spine—which injuries were resolved within a few months.  In the years before
the accident in question, Mr. Sangha had no relevant pre-accident
condition other than stress and ongoing depression which began in 2002 and
extended until the date of his last pre-accident visit with Dr. Wong in February
2005, just months before the accident in May 2005.

[55]        
The plaintiff’s evidence concerning this history of depression was
troubling.  Under cross examination he alternatively denied that he had ever
complained to Dr. Wong of depression or that he had ever been treated for
depression.  In answer to other questions, he stopped short of denying that
history but insisted he simply could not recall being treated for depression. 
Alternatively he said that he was not aware he was being treated for
depression.  If Dr. Wong had provided him with prescriptions for anti-depressants
which he had filled, he said he was unaware that the drugs were
anti-depressants.

[56]        
I must note here that Mr. Sangha was born in the State of Punjab in
India.  He grew up in India and did not immigrate to Canada until 1993 when he
was 28 years of age.  He completed the equivalent of Grade 9 in India and
since his arrival in Canada, has not pursued any further education other than
to attend ESL classes.  During the time he lived in India, he and his family
engaged in farming.  He came to Canada with no funds of any kind.  Since coming
to Canada, he has done very well.  He worked as a landscaper for approximately
six months and then launched into the taxi business, as a driver.  By 1998 or
1999, he was able to purchase his first taxi license for approximately
$200,000.  By the date of the accident, he wholly owned one taxi (taxi #63) and
shared ownership of a second taxi with a brother.  He also owns his own home
and co-owns a second rental property with a brother.  He lives in his home with
his wife, his two children, his parents, and sometimes (when the rental home is
fully rented) his younger brother and his wife.

[57]        
While Mr. Sangha has obviously done well in Canada, he did not
strike me as a particularly sophisticated individual.  Despite testifying
through a Punjabi interpreter at trial, he appeared to have trouble
understanding the questions posed and responding clearly and directly to
counsel.  Many of legal counsel’s questions required repetition or
clarification.  Many of his own answers were simultaneous claims that he either
could not recall or did not know something.  Despite his repeated denials that
he had been treated for depression by Dr. Wong, on the face of  the
clinical record, which Dr. Wong confirmed at trial, it is clear that Mr. Sangha
had complained to Dr. Wong of various symptoms of depression on a number
of different occasions over a span of three years before the accident.

[58]        
While I initially wondered whether Dr. Wong might have
misunderstood his patient or might have had difficulty understanding his poor
English, Dr. Wong reassured the Court that he actually had no difficulty
communicating with Mr. Sangha.  Indeed approximately one-third of his
medical practice is made up of Punjabi patients and for that reason, some years
ago, Dr. Wong took private tutoring classes to learn Punjabi.  He
testified that as a result he is able to communicate fairly well in the Punjabi
language with his Punjabi patients, particularly regarding their health
issues.  Both Dr. Wong and Mr. Sangha testified they had no
difficulty communicating with one another.

[59]        
At trial, Dr. Wong confirmed that in June 2002 the plaintiff
complained to him of right temporal pain and depression.  On September 4,
2002 he returned to Dr. Wong’s offices complaining of headaches. 
Notwithstanding Mr. Sangha’s denial of depression, Dr. Wong was
satisfied he was suffering tension headaches and depression and by way of
treatment, he prescribed Paxil, an anti-depressant.  On October 15, 2002,
the plaintiff returned to Dr. Wong’s offices complaining of feeling “drunk
and dizzy” and “that the room felt like it was spinning”, which sensation
worsened when he stood up.  He told Dr. Wong that he felt depressed and
tired.  Again Dr. Wong diagnosed the condition as one of depression and
tension headaches.  He recorded Mr. Sangha was not suicidal.  Since the
plaintiff complained that the Paxil had made him sleepy, he prescribed a
different anti-depressant Zoloft.

[60]        
On November 5, 2002, he again returned to Dr. Wong’s offices,
this time complaining of ectopic atrial symptoms.  Dr. Wong recommended he
discontinue any caffeine, smoking and alcohol.

[61]        
On April 28, 2003 he returned to Dr. Wong’s offices, this time
complaining of an ear infection and cold symptoms.  He also complained of
headaches and tiredness.  While the clinical notes record that Mr. Sangha
denied being depressed, Dr. Wong diagnosed him as suffering an ongoing
depression and prescribed Eflexor, an anti-depressant.

[62]        
In July 7, 2003, Dr. Wong records that the patient’s
depression was “better” and that he should discontinue the Paxil.

[63]        
Approximately a year later, on April 28, 2004, the plaintiff again
returned to Dr. Wong’s offices complaining of tiredness, decreased
appetite, and stress.  Dr. Wong records that he was obese.  He denied
being suicidal.

[64]        
On October 14, 2004, he returned to Dr. Wong’s offices,
complaining about his teeth and gums, a “mouth bleed”, decreased sleep,
decreased hearing in the right ear and depression.  Dr. Wong noted that his
affect was appropriate and that he was not suicidal.  He records that “stress
better”.  It is noteworthy that on that same date, Dr. Wong completed a
Driver’s Medical Examination form on behalf of the Plaintiff.  In that form,
under heading D. (Details of Conditions that affect or may affect driving), the
first matter noted is “fully recovered from prior depression”).

[65]        
On January 21, 2005, the plaintiff returned to Dr. Wong, this
time complaining of insomnia for four days, decreased appetite, poor concentration,
and decreased sleep, Dr. Wong noted his presentation with a flat effect,
consistent with a diagnosis of depression.  He recorded that while the patient
was not suicidal, he was “scared”.  Dr. Wong was unable to recall the
source of his fear.  He diagnosed the patient as depressed and suffering an
“adult adjustment disorder”.  He prescribed Nortriptyline, an anti-depressant. 
By way of further treatment he recommended the plaintiff do more exercise and take
steps to lessen his stress.

[66]        
On February 4, 2005, Mr. Sangha again complained of decreased
sleep and stress.  Dr. Wong confirmed the patient was not suicidal, but
stressed.  Again he diagnosed the condition as “adult adjustment disorder”.  Under
the heading “Investigation” he has recorded “depressed?”  He testified that he
was ambivalent as to whether the plaintiff was actually depressed.  He
recommended that he eat less fat, reduce his alcohol consumption, get more
exercise, eat more fruits and vegetables, and rise at the same time daily.

[67]        
This last visit occurred three months before the accident in May 2005.

[68]        
Dr. Wong was very clear in his evidence that prior to the accident,
he had treated Mr. Sangha for depression, and that while his symptoms had
occurred over a period of three years, they were most acute in 2002 and 2005.  He
acknowledged that on many occasions, while the plaintiff did not specifically
complain of depression, he was satisfied he was.  He recalled that at some
point he “briefly” provided counselling to Mr. Sangha although he could
not recall when.  He was unable to recall the particulars of the plaintiff’s
situation or what specific concerns underlay his depression other than his
diagnosis of “adult adjustment disorder” which he described as a
“pre-depression”.  He acknowledged that at no time before the accident did he
believe it was necessary to refer Mr. Sangha to either a psychologist or a
psychiatrist for treatment.  As a long time practicing family physician, he was
satisfied he had the training and experience to both diagnose and treat the
plaintiff for depression.

[69]        
In any case, on a review of all of the evidence, and notwithstanding Mr. Sangha’s
denials, I am satisfied that beginning in 2002, he did indeed suffer from
depression which abated somewhat, but continued over the course of three years
and was an active condition as late as January 2005, just four months
before the accident.  By February 2005, he continued to complain of
depression-like symptoms, which Dr. Wong diagnosed as an adult adjustment
disorder.

3.3          
Post-accident medical history:

[70]        
As I noted earlier, on the date of the accident itself, the plaintiff
was taken to the VGH emergency where he was examined and discharged
approximately three hours later.

[71]        
Over the course of the next year the plaintiff visited his family
physician Dr. Wong on many occasions.  While Dr. Wong was satisfied
he had suffered soft tissue injuries of the neck and back, he was confident
that the plaintiff’s injuries would resolve within a short period.  He
prescribed anti-inflammatory medication, a course of physiotherapy treatments
and recommended the plaintiff remain as active as possible.

[72]        
Early on Dr. Wong referred the plaintiff to Dr. Schweigel, an
orthopaedic surgeon.  He examined the plaintiff July 13, 2005, just over
two months after the accident.  Dr. Schweigel confirmed the plaintiff had
suffered soft tissue injuries to his neck, shoulder and low back.  He reassured
Dr. Wong that he should continue with his treatment plan for Mr. Sangha,
including physiotherapy, exercise, and anti-inflammatory medication.  In
keeping with Dr. Schweigel’s report, on August 11, 2005, just over
three months post-accident, Dr. Wong completed a CL-19 form for ICBC,
advising that he anticipated the plaintiff would be able to return to work in
2-4 weeks time.

[73]        
The plaintiff continued to visit Dr. Schweigel and saw him next on
August 23, 2005.  Again Dr. Schweigel found a normal range of motion
of the neck and cervical spine, although some slightly decreased flexion of the
lumbar spine.  He recommended the plaintiff continue with his exercises.  He told
him he would be able to return to work in a graduated fashion in approximately
one month’s time and that to assist him in doing so, he should consider using a
lumbo-sacral belt for support while driving the taxi.

[74]        
He returned to see Dr. Schweigel again in October 2005.  He continued
to complain of severe low back pain, some upper back pain and some slight right
posterior thigh pain.  Again the examination was normal.  Dr. Schweigel
ordered a CT scan and some x-rays.

[75]        
In the interim, in January 2006, the plaintiff was assessed by Dr. Hawk,
an orthopaedic surgeon retained to conduct an independent medical legal examination
on behalf of ICBC.  Mr. Sangha reported to Dr. Hawk that he believed
his neck pain and stiffness had improved an estimated 30-35%.  Despite the
patient’s complaints of pain during the examination, Dr. Hawk found his
paracervical muscles to be of normal tone.  He was unable to detect any
abnormal muscle tension or muscle spasm of the neck muscles during his
examination.  Overall the examination was normal.  He concluded that in his
view, the plaintiff had largely recovered from the soft tissue injuries
suffered in the accident.

[76]        
In early February 2006, following his fourth examination of the
plaintiff, Dr. Schweigel wrote to Dr. Wong, once again reassuring him
that the injuries were soft tissue in origin and that the patient should simply
continue with exercises, physiotherapy and anti-inflammatory medication.  Once
again, he expressed the opinion that the plaintiff would hopefully be able to
return to work within the next 1-2 months in a graduated fashion.

[77]        
The physiotherapy treatments continued and a variety of
anti-inflammatories, muscle relaxants and topical analgesics were tried.  Over
the second half of 2006, the plaintiff’s condition did gradually improve, at
least according to Dr. Wong’s assessment set out in his report of May 16,
2009.  (At trial he adopted that report as an accurate assessment of the plaintiff’s
course, rejecting his comment in the May 8, 2007 report that there was no
improvement during this period).

[78]        
In early 2007, the plaintiff attended Dr. Herschler, a physiatrist,
and Dr. George Aitken, an orthopaedic surgeon, at the request of Mr. Sangha’s
original legal counsel, Mr. Vecchio.

[79]        
Dr. Herschler’s report is short and offers a very different picture
of the plaintiff.  While the plaintiff was able to walk unaided into his
office, Dr. Herschler noted that his movements were stilted, that he had
difficulty sitting comfortably, and that there was a marked restriction in the
range of movement of his lumbar spine.  Dr. Herschler was unable to offer
any firm prognosis other than to say it was likely the disability would last
for “at least another year and maybe longer”.

[80]        
Dr. Aitken examined the plaintiff on March 26, 2007.  He
provided a somewhat more moderated opinion.  While he noted there was a
“significant potential for serious spinal injury in the collision which
occurred”, he was glad to report this was not in fact the case.  In his
opinion, Mr. Sangha was experiencing “intense referred scleratomal pain
from the various points of attachment of myofascial structures to the bony
skeleton”.  He believed that Mr. Sangha should be offered injection
therapy to the tender spots and suggested Dr. Wong consider a referral to Dr. Marchanda
at the Thorson Pain Clinic in Burnaby, BC.  Interestingly, having observed the plaintiff’s
“low mood”, he also suggested that he would profit from cognitive behavioural
therapy while at the Pain Clinic.

[81]        
Dr. Aitken’s identification of Mr. Sangha’s low mood seems to
have been something of a wakeup call for Dr. Wong.  Acting on Dr. Aitken’s
suggestion, he followed up quickly and referred the plaintiff to Dr. Marchanda. 
The referral note specifically requests “cognitive behavioural therapy”. 
However, as it was, while the Pain Clinic team included a psychologist who
conducts such therapy, this was not Dr. Marchanda’s particular expertise. 
He completed training as a family practitioner and completed a further six
month fellowship in orthopaedics and sports medicine at the University of
Ottawa.  He was declared at trial to be an expert in family medicine with a
special interest in chronic pain and musculoskeletal pain.  So far as Dr. Marchanda
was concerned, Dr. Wong was not expecting the patient would be sent
directly to behavioural therapy (for which he would have to pay privately) but
rather was seeking an assessment by the physician recommended by Dr. Aitken.

[82]        
Dr. Marchanda examined the plaintiff on June 14, 2007.  He
noted the plaintiff was presenting with pain on the right side of his head,
neck and upper right back, with radiation into the right forearm and some
numbness and tingling of some fingers of the right hand.  He offered the
plaintiff a course of cortisone injections.  The first set of injections to the
right occipital base and the right cervical facets took place on June 28,
2007.  Later the plaintiff reported that 50-60% of his pains had disappeared,
but after 7-8 days the pains all gradually returned.  Dr. Marchanda
provided a second set of injections to the thoracic spine and right thoracic
facets region on October 2, 2007.  Again the plaintiff later reported that
50% of his chronic pain had resolved but that the benefits lasted only 7-8
days.  By late October 2007 he reported that his pain was neither better nor
worse, but just the same.

[83]        
On the final treatment visit of October 25, 2007, Dr. Marchanda
advised the plaintiff there was no point to continuing with this form of
therapy.  They discussed alternative therapies—including exercise and
prolotherapy.  It was during this final appointment that Dr. Marchanda
advised the plaintiff he ought to seriously consider attending counselling.  As
he stated at trial, it was at this point that he was starting to realize there
was a “depression issue at play”.

[84]        
I should note here that while Dr. Aitken was apparently unaware, Dr. Marchanda
did know that by the time he examined the plaintiff in June 2007, the plaintiff
had already returned to work.  He was not aware of precisely how much he was
working, although he assumed it was “part-time”.  In fact the plaintiff had
returned to work at some point in February 2007.  While it is not entirely
clear, it appears that he stopped work for a period, and then returned again in
September 2007 and remained at work on a part-time basis for 4-5 days a
week until December 2008.

[85]        
In mid August 2010 the plaintiff began treatment sessions with Dr. William
Hay, a psychiatrist.  I note that Dr. Hay was not entirely satisfied he
was communicating effectively with the plaintiff.  As he put it, “He (the
plaintiff) is not a good historian as English is a second language and his
education is limited”.  In order to clarify the situation, he referred Mr. Sangha
to a Punjabi psychiatrist.  While that psychiatrist did not adopt Dr. Hay’s
PTSD (post-traumatic stress disorder) diagnosis, she did agree that Mr. Sangha
was suffering from a Major Depression Disorder (non-psychotic) and chronic pain. 
By virtue of the problems obtaining a history from Mr. Sangha, Dr. Hay
was unable to verify whether he had also suffered an mTBI (mild traumatic brain
injury).

[86]        
Mr. Sangha continues to attend Dr. Hay for regular treatment
sessions.  He continues to prescribe anti-depressants and believes Mr. Sangha
should seek treatment from a Punjabi speaking psychologist or psychiatrist to
clarify the suspected PTSD or mTBI symptoms.

[87]        
While there was no current report from Dr. Wong filed at trial (his
May 16, 2009 report was the most current), he apparently continues to
treat Mr. Sangha in his family practice.  While Dr. Wong has
quarterbacked an exhaustive list of referrals to various specialists to assess
and treat the plaintiff’s condition, he did not offer any current analysis of Mr. Sangha’s
condition, nor any evidence regarding his prognosis.  He testified however that
even by May of 2007, he was satisfied that while there was a musculoskeletal
“issue”, the plaintiff’s main problem was psychiatric.

3.4          
Discussion

[88]        
In response to the plaintiff’s evidence and that of his various
consulting and treating physicians, the defence has filed a series of
independent medical-legal reports from Dr. Hawk, (orthopaedic surgeon), Dr. Reebye
(physical medicine and rehabilitation), and Dr. Kulwant Riar (a
psychiatrist).

[89]        
Dr. Reebye was an impressive witness.  He completed training as a specialist
in general surgery, orthopaedic surgery and reconstructive surgery before
moving to Canada in 1982.  Due to the rules governing medical qualifications in
Canada, he shifted his focus and completed a further four years of training in
physical medicine in Saskatchewan before moving to British Columbia in 1988.  Until
the mid-1990’s he worked half time at the GF Strong Center and half time at the
Workers Compensation Board (now Worksafe BC).  Eventually he left both and
concentrated on his own practice in New Westminster.  He was declared a
specialist in physical medicine and rehabilitation, as well as the diagnosis
and treatment of chronic pain and brain injury.

[90]        
Dr. Reebye examined Mr. Sangha over a period of hours and was
able to communicate with him using both the English and Hindi languages.  Hindi
is apparently very close to Punjabi.  He was satisfied Mr. Sangha had
indeed suffered soft tissue injuries with pain which had persisted beyond a six
month period, thus qualifying him as someone who suffers chronic pain.  He
considered and dismissed the possibility he had suffered any traumatic brain
injury.  Since Mr. Sangha reported decreased sensations over the right
side of his body, he conducted an extensive neurological examination but found
no evidence of any neurogenic injury.  He noted that Mr. Sangha exhibited
an exaggerated pain response during the examination and that he took several
breaks and broke down in tears.

[91]        
Dr. Reebye concluded that while Mr. Sangha’s initial symptoms
were caused by the motor vehicle accident, his continuing symptoms were likely
multi factorial.  He concluded:

There is no evidence of any significant musculoskeletal
problems to explain his ongoing symptoms or his disability at this stage.

One has to consider the
possibility of psychosocial problems and/or depression playing a part in the
cause of his ongoing symptoms.

[92]        
He noted that Mr. Sangha is doing very little physically and not
exercising regularly.  In his view his lack of activity has contributed to a
downward spiral in his condition.  He recommended he be more active at home as
well as recreationally and that he return to work.  In his view there was no
justification for any prolonged period off work.  He admitted that when he saw
him in late November 2010, he did not consider him capable of returning to work
full-time.  However, he stated that if the plaintiff received adequate
treatment for his ongoing psychological-psychiatric problems, he believed he
would be able to gradually return to work and eventually resume full-time
employment.

[93]        
Dr. Reebye’s assessment was echoed by Dr. Kulwant Riar, the
psychiatrist who examined him in September 2010.  Dr. Riar is a
psychiatrist who completed medical school in India and then completed a
residency in psychiatry in Canada in 1992, followed by a further fellowship in
forensic psychiatry which he completed in 1993.  He too was a strong witness. 
He was able to fully conduct his interview with Mr. Sangha in the Punjabi
language.  He concluded that Mr. Sangha was totally focused on his pain or
as he put it, “extremely preoccupied with somatic sensations to a delusional
proportion”.  He opined that there is no indication Mr. Sangha’s ever
suffered a concussion or head injury or that he ever experienced any symptoms
suggestive of Post-Traumatic Stress Disorder.  At the time of his interview in
September 2010, he believed Mr. Sangha suffered “moderate symptoms of
depression and anxiety”.  However having reviewed the more recent reports of Dr. Hay,
he formed the view that Mr. Sangha’s depression symptoms have actually deepened
over time.  In his opinion, this depression pre-dated the accident.

[94]        
He recommended Mr. Sangha begin to become involved in physical
activities as well as some household activities.  He recognized that this will
be a slow painful process, given his level of deconditioning.  He also
recommended he consult with a Punjabi speaking psychiatrist or psychologist.  He
disagreed with Dr. Hay’s evidence that there were very few Punjabi
speaking psychologists and said that such professionals were readily available
in the Lower Mainland and Surrey area.  Noting that Mr. Sangha has not
complied with medication programs in the past, he suggested his medication
should be reviewed and compliance achieved.

[95]        
Finally, he opined that the conclusion of this litigation would likely
reduce his stress and “take away any tendency to take a sick role for secondary
gains”.  I should stress here that Dr. Riar was careful to point out he
was not characterizing Mr. Sangha as a malingerer.  Dr. Riar accepts
that he is truly experiencing the pain symptoms of which he complains.  However
he says that the symptoms are a reflection of his low mood and anxiety rather
than any actual physical pain.

[96]        
In his view, while Mr. Sangha has been under psychiatric care since
late 2010, this treatment has not been very effective—first, because Mr. Sangha
has little insight and a poor history of compliance with his medications and
secondly, since he has not received adequate counselling.  While he said that
his psychiatric prognosis is somewhat guarded, he is confident that with
regular psychiatric intervention and proper counselling, the plaintiff’s symptoms
can be managed and that he will return to a much higher level of functioning.

4.0          
Causation:

[97]        
The first issue is whether Mr. Sangha’s complaints are
physiologically based or not?  Relying on the opinions of Dr. Wong, Dr. Aitken
and Dr. Marchanda, the plaintiff says his complaints are physiologically
based.  The defence says that while Mr. Sangha did suffer soft tissue
injuries which did cause him to suffer pain and discomfort for a period, those
injuries were largely resolved within nine months or more following the
accident.

[98]        
To the extent that the Court finds those physical injuries continue to persist
and have not totally resolved, the defence says that the plaintiff’s complaints
are the result of the degeneration of his lumbar spine, which underlying degeneration
predated the accident.  (Here the defence relies on the report of Dr. Schweigel
dated January 10, 2007, where he relies on the results of the MRI of the
lumbar spine, conducted in May 2006.  That report identifies mild disc
bulging with slight disc dessication at L4-5 and a tiny tear in the annulus
fibrosis.  Further mild facet joint irregularities at L3-4, L4-5 and L5-S1 are
present).  Nonetheless, Dr. Schweigel concluded the plaintiff’s injuries
were largely resolved and that he ought to have returned to work within nine
months of the accident.

[99]        
However the main position taken by defence is that the plaintiff’s
presentation at this point, seven years post-accident, is not the result of any
physical injuries but rather is the result of his ongoing psychiatric or
psychological problems which predated the accident.

[100]     Relying on
such authorities as Chanakos v. Bruce, [1997] B.C.J. No. 750 (S.C.),
the defence says the plaintiff has failed to prove on a balance of
probabilities that the plaintiff’s depression and chronic pain were caused by
the accident.  Rather the defence says that if the plaintiff suffered any
injury as a result of the accident it was limited to a soft tissue injury,
which was largely resolved by September 2005 and fully resolved by the
time he returned to work in late 2007, with no relapse over a period of a year until
December 2008 when he decided to quit work.  The defence says that any ongoing symptoms
are not the result of the accident but rather were caused by the plaintiff’s
pre-existing psychological illness.

[101]     On a review
of all of the evidence, I am not persuaded that Mr. Sangha’s ongoing
complaints are the reflection of any ongoing physiological pain.  Rather I agree
with Dr. Marchanda, Dr. Aitken, Dr. Wong, Dr. Reebye and Dr. Riar
that here we are faced with an individual with ongoing chronic pain rooted in
depression and anxiety.

[102]     Based on
the evidence of Dr. Wong and Dr. Kulwant Riar, I find that his
current chronic pain is symptomatic of his depression, which depression
pre-existed the accident.  As Dr. Wong testified, Mr. Sangha suffered
depression off and on over a period of three years before the accident.  According
to Dr. Riar, this was not a significant depression but rather a chronic
depression or dysthemia.  Still, Dr. Riar noted that the depression was
significant enough that Mr. Sangha’s long time family physician took the
trouble to consider and dismiss the possibility that he was suicidal, while
also prescribing him a number of different anti-depressants.

[103]     In Dr. Riar’s
view, Mr. Sangha has a tendency to express his low mood and anxiety
through somatic complaints, instead of feeling them at an emotional level.  This
tendency in turn created a certain dynamic here:

On the issue of Mr. Sangha’s chronic pains as well as
anxiety and depression, I believe strongly that Mr. Sangha suffered from
low mood, either in the form of chronic depression or Dysthymia prior to the accident
which needed medical attention from time to time and it became complicated and
worse with passing time.  I also believe that Mr. Sangha expresses his low
mood and anxiety through somatic complaints instead of feeling them at an
emotional level.  I base this opinion on his pattern prior to the accident and
also having various strange and vague symptoms which to him has emerged since
the accident.  Even his anxiety expresses itself through his digestive and
urinary system.  I feel that the accident in question aggravated his mood
symptoms, which in turn fed into his pains, and they have continued like that
all along.  I feel that the impact of the accident would have been over long
ago but his tendency to express his mood symptoms through physical complaints
has perpetuated his condition.  As his symptoms of anxiety and depression
deepen, they came to the attention of health care professionals for which he
was been given treatment.

…even if Mr. Sangha was
not involved in the  motor vehicle accident, he would have continued to
experience symptoms of depression and anxiety in increasing intensity with
time.  The only thing the accident did was complicate his situation somewhat
more.

[104]     Dr. William
Hay’s psychiatric assessment of the plaintiff reaches an entirely different
opinion.  Dr. Hay has concluded that the motor vehicle accident was the
“sole precipitating cause” of Mr. Sangha’s psychiatric illness.  Following
his interview of Mr. Sangha he concluded that he had no predisposing
factors for psychiatric illness—that is that there was no family history, no
history of mental illness, no head injury and most significantly, no
psychiatric history.  In eliciting such a history he said that he would ask the
plaintiff whether he had ever seen a psychiatrist or psychologist; whether he
had ever been to an alcohol or drug treatment center and whether he had ever
been admitted to a psychiatric ward or hospital.  He admitted that he was
unaware of the plaintiff’s history of depression prior to the accident, including
the fact he had been prescribed a variety of anti-depressants during this
period.  While he was keen to support the plaintiff’s position and insisted
that Mr. Sangha had not misled him, he admitted that in eliciting his
history it would have been “helpful” to have known that he had been prescribed
various anti-depressants prior to the accident.

[105]     While in
his view Dr. Wong’s previous diagnosis of “depression” and “adult
adjustment disorder” would not necessarily have reflected any major depression
issue, Dr. Hay admitted that he would have liked an opportunity to have
investigated this history so as to have determined how significant or prolonged
it was.  He admitted that had he known of Mr. Sangha’s pre-accident history
here, it might have changed his opinion.  Since he was unaware of any of Mr. Sangha’s
pre-accident symptoms or history of depression, he proceeded on the assumption
that the motor vehicle accident in issue was the “sole, precipitating” cause of
his of his subsequent psychiatric illness.

[106]     In effect,
Dr. Riar is the only medical expert in this action who had the benefit of
reviewing Mr. Sangha’s full medical history, including the clinical
records of Dr. Wong.  In these circumstances, and with all due respect to Dr. Hay,
I am not able to give much weight to Dr. Hay’s opinion.

[107]     I accept
that Mr. Sangha did suffer from depression over a period of years prior to
the accident.  That said, I do not find that he has deliberately lied to either
the Court or the various doctors he visited about his pre-accident mental
health history.  He struck me as a relatively unsophisticated individual with
little insight into his condition.  I accept Dr. Riar’s opinion that like
many people he either does not understand or simply does not accept that he is
depressed.  This situation is complicated by the fact that Mr. Sangha has
a tendency to express his symptoms of depression and anxiety through his
ongoing somatic complaints.

[108]     Unfortunately
it appears that post-accident, his physical complaints masked his depression
for some time.  It was not until the matter was raised by Dr. Marchanda
that Mr. Sangha’s caregivers shifted their focus to his mental health. 
Even now, according to both Dr. Riar and Dr. Marchanda, he is not receiving
effective therapy or treatment, largely due to his inability to communicate
effectively with his psychiatrist in the Punjabi language.

[109]     I do not
agree that as in Chanokos, the plaintiff’s accident-related injury is
simply “an incident on which the plaintiff’s mind has focused or fastened as a
result of a depressed psychological condition which has its real origin apart
from the Accident”.

[110]     To the
contrary, I find this case much closer to the facts set out in Somers v.
Wesnoski, 2008 BCCA 139.  I am satisfied that the accident did cause
at least some of the plaintiff’s psychological symptoms, in the sense that his
physical injuries aggravated his previous depressed state.  That said, I am
satisfied that his previous psychological condition was an active one or at
least one that was likely to become active, even if the accident had never
occurred.  I am satisfied that while the plaintiff did suffer soft tissue
injuries as a result of the accident, most of her ongoing complaints beyond the
two year mark, were likely due to his mental health issues.  Thus I find that
most of Mr. Sangha’s present physical complaints are not grounded in any
physical injuries but are grounded in his chronic depression which preceded the
motor vehicle accident.  Relying on the opinion of Dr. Kulwant Riar, I
find that here we are faced with a plaintiff with a “crumbing skull” who would
have suffered from his current symptoms, in any event.

5.0          
Conclusion:

[111]     On a review
of all of the evidence, I find that the plaintiff suffered moderate soft tissue
injuries which resolved within approximately two years of the accident. 
Thereafter the plaintiff has suffered ongoing chronic pain, which condition is
a reflection of his chronic depression which pre-dated the accident.  I am satisfied
that at most the injuries suffered in the accident aggravated the plaintiff’s
mood symptoms.  In these circumstances I conclude that an award in the sum of
$40,000 is appropriate.

6.0          
Pecuniary Damages:

6.1          
Positions of the parties:

[112]     The
plaintiff seeks damages for past wage loss in the sum of $80,819, while the
defence says that the plaintiff lost no more than $550 per month for each month
he was unable to return to work following the accident.  Assuming that period
was approximately 9 to 24 months, the defence says the past loss of income
claim is in the range of $5,000–$13,200.

6.2          
Discussion: Pre Accident history of earnings:

[113]     Prior to
the accident, the plaintiff had three sources of income—the income he earned
driving his taxi; the income he earned from the second taxi which he co-owned
with his brother; and the rental income from the rental home he co-owned with
his brother.

[114]     The
plaintiff testified that prior to the accident he usually worked five and
sometimes six days a week year round, driving taxi #63.  He said that he usually
worked the day shift and sometimes worked on Friday and Saturday nights as
well, if it was busy.  He said he earned a net income of $175-$200 per day plus
tips of $20-$30 per day.  By my calculation, assuming he was working 300 days
per year, he would have been earning $52,500-$60,000 net, plus tips of $6000–$9000
per year, thus totalling $58,500- $69,000 per year.

[115]     Yet on a
review of the pre-accident tax returns, the plaintiff did not earn a net income
anywhere near those figures, particularly in the two years before the accident. 
His tax returns show the following earnings from his taxi business:

[116]     Mr. Sangha
distanced himself from those figures, insisting that throughout those years he
always told his accountant that he earned $175–$225 per day plus tips of $20-$30
per day.  He explained that the accountant prepared the tax returns and that he
simply signed the documents presented to him.  While not saying so
specifically, he effectively stated that the returns were inaccurate and that
he did not understand how the accountant had reached these figures.  I must
note that his long time accountant was not called as a witness at trial.

[117]     I note
that before the accident, the most significant drop in his income was for the
year 2004.  The evidence appears to offer two explanations for this drop.

[118]     First I
note that it was during 2004 that the plaintiff’s younger brother Satnam began
to drive taxi #63.  At some point the brothers reached a lease arrangement,
although it is not clear when.  The plaintiff was vague as to the financial
arrangement.  He said that pre-accident, his brother paid between $300–$500 per
month to lease a share in taxi #63 from him.  He acknowledged that he might
have earned more money had he leased the vehicle to another driver, but he was
confident that since his brother paid for transmission oil, any car repairs and
“does everything for me”, the arrangement made sense.  In any case, from the
time Satnam began to drive the taxi, the plaintiff was almost always driving
the day shift, although he sometimes drove at night if another driver was not
available.

[119]     Second, I
note that the McClure’s Cabs records produced for the period January 2003
to November 2004 (Exhibit 10) indicate that Mr. Sangha was not
working at all during August 2004 or September 2004.  He worked a
single day in October 2004 and was off work for seven days in November 2004. 
This was during the same period Mr. Sangha was complaining of depression
to Dr. Wong.

[120]     The only
other source of information concerning Mr. Sangha’s pre accident earnings
are the Trip Sheets he produced for the period March-May 2005 (Exhibit 4, Tab 31). 
I understand that some time after the accident, Mr. Sangha produced these
documents to ICBC in support of his ongoing Part VII benefits claim.  The
trip sheets only record tips to the extent a tip is included in a credit card
or McClure’s Cabs charge account fare.  On discovery the plaintiff testified
that on average he received tips of $10 per day, although sometimes the tips
were as low as $5 and sometimes as high as $15 per day.  At trial he attempted
to distance himself from that answer, explaining he had meant to say an average
of 10% rather than a dollar figure.  I have difficulty accepting that
explanation since I note that he testified via an interpreter on discovery.

[121]     In any
case, overall, I accept that Mr. Sangha’s tax returns are likely an
accurate reflection of his pre-accident earnings history.

6.3          
Post-accident history of earnings:

[122]     After the
accident, Mr. Sangha was unable to drive his taxi for some time.  He
attempted to return to work for a short period in 2006, and then did not return
to work again until October 2007.  Thereafter he remained at work, driving
part-time until he quit altogether in December 2008.  He said that during
this period, he usually drove taxi #68 (the taxi he co-owns with his brother)
since it is a van and the driver’s seat is larger and more upright, allowing
for a more comfortable ride.  While he testified that he quit driving in
December 2008 on the recommendation of his doctor, in his evidence Dr. Wong
denied ever making such a recommendation to Mr. Sangha.  He said the
decision was Mr. Sangha’s.

[123]     It has
been difficult to reconstruct how much the plaintiff earned driving part-time
after the accident.  Curiously, although he apparently understood the
importance of producing his trip sheets in this action (since he had to produce
those documents to ICBC in the spring of 2005 in support of his Part VII
loss), Mr. Sangha has not produced any other trip sheets of his own to
verify his post-accident loss.  So far as I am aware, he has produced no trip
sheets for either taxi #63 or taxi #68.  While I understand that he felt no
need to produce any trip sheets for taxi #68, since he apparently claims no
loss arising from same, it is difficult to understand his failure to produce
the trip sheets for taxi #63.

[124]     As I have
already mentioned, he produced the trip sheets for the immediate pre-accident
period.  He says that despite the Vancouver By-Law which requires a taxi owner
to retain such documents for a period of six months, he has never done so since
he simply assumed McClure’s Cabs would retain those documents.  He says that he
was able to produce the pre-accident trip sheets since those were in McClure’s Cabs’
possession in the spring of 2005.  However when he approached McClure’s Cabs for
production of the post-accident trip sheets he says that, to his surprise, he
discovered that the trip sheets had been destroyed.

[125]     Again, I
have difficulties with this evidence.  The request for the trip sheets was made
by defence counsel on a number of occasions, but most specifically at the examination
for discovery of Mr. Sangha conducted in September 2008.  At that
time, Mr. Sangha was still driving the taxi.  Indeed he continued to drive
until December 2008.  If he had not retained the trip sheets, as he
claims, they would still have been in the possession of McClure’s Cabs, going
back as far as March 2008.  In my view he has offered no cogent explanation for
his failure to produce the trip sheets.

[126]     Despite
that failure he insists that once again, but for the accident, he would have
earned $175-$200 per day, plus tips of $20-$30 per day for each day he did not
work after the accident.

[127]     His
counsel submitted that rather than rely on those figures the best way to
calculate his loss was to consider the amount which he had paid a Mr. Shoker
to drive this taxi, commencing in 2010 (see Shoker trip sheets, Exhibit 4,
Tab 32).  Mr. Shoker has been driving taxi in Vancouver since 1994
and was asked by Mr. Sangha’s brother Pavitar whether he would drive taxi
#63.  He said that he drove Mondays through Wednesdays, from 4:00 p.m.
until midnight; Thursdays from 4:00 p.m. until 10:00 p.m.; Fridays
from 4:00 p.m. until 3:30 a.m.; and Saturdays from 6:00 p.m.
until 3:30 a.m.  He said that he was an experienced driver and was only
interested in driving the most lucrative shifts.  Nonetheless, despite these
long hours, he was unable to earn any significant income.  Pursuant to his
agreement with Mr. Sangha, he split his income 50/50 with him and paid for
half his gasoline costs during his shifts.  Including tips, Mr. Shoker’s
net income has been approximately $15,000 per annum.

[128]     Mr. Sangha’s
counsel adopts this $15,000 figure as representing the income that Mr. Sangha
would have earned post-accident, had he been driving his own taxi.  From June 1,
2005 until the first day of trial (a period of approximately 6.75 years), he claims
that he would have earned $101,250.  Deducting the income he says he earned
post-accident (which he says he over-estimates at 300 days x $60 per day net of
expenses = $18,000), he claims a net loss of $83,250.

[129]     There are
several difficulties with this calculation.

[130]     First Mr. Shoker’s
net business income of $15,000 per annum exceeds Mr. Sangha’s own net
business income for the pre-accident period, particularly 2003 and 2004.  As I
noted earlier, there is some evidence that Mr. Sangha did not work for
protracted periods in 2004 and that he was suffering depression at that time.  Further
it was in 2004 that he began to lease the taxi out to his brother Satnam at
admittedly bargain rates.

[131]     Secondly, Mr. Sangha
testified that for the most part, he drove day shift prior to the accident, and
only sometimes drove the night shift.  By contrast, Mr. Shoker set out to
only drive the most lucrative shifts and always drove until midnight three days
a week, and until 3:30 a.m. on Fridays and Saturdays.

[132]     I have
some doubts that but for the accident, Mr. Sangha would have worked as
long or as hard as Mr. Shoker and would have duplicated these earnings. 
Indeed I note that in January 2009, after he quit driving taxi #63, he
arranged for a Mr. Jatinder Manjat to drive that taxi.  While he drove the
taxi, Mr. Manjat split all revenue from the taxi fares equally with Mr. Sangha. 
The plaintiff has admitted that Mr. Manjat paid him an average of $550 per
month.  Adopting this figure results in a loss of only $6,600 per year, a
significantly lower figure than the amount earned by Mr. Shoker.

[133]     Thirdly,
without any trip sheets, it is difficult to calculate precisely how much Mr. Sangha
worked either in 2006 or from late 2007 until December 2008, and what his
earnings were during this period.  Thus the figure which must be properly
deducted from the calculated income loss remains elusive.

[134]     Fourthly, Mr. Shoker
has testified that over the last five years, the overall business in Vancouver
has declined significantly by 40%, due to the rise of the Aerocar scheme at the
Vancouver International Airport and the loss of customers to the Canada Line
which transports riders to and from the airport.  Indeed Mr. Shoker
complained that his taxi driver income has declined to the point he has decided
to leave the industry since it is impossible to support his family on such low
earnings.  That 40% decline figure would presumably apply to Mr. Sangha’s
own theoretical earnings during this period, substantially reducing his income
from even its pre-accident levels.

[135]     Fifthly,
and most significantly, we have the issue of the period over which any income
loss would have been suffered.  Based on my earlier findings, I am unable to
say that Mr. Sangha’s post-accident loss occurred over a period of 6.75
years, as plaintiff’s counsel submits.  To the contrary, I believe that but for
Mr. Sangha’s pre-existing depression and the aggravation of that injury,
he ought to have been back to work no later than two years post-accident.

[136]     Finally, I
must note that if one compares Mr. Sangha’s pre-accident and post-accident
earnings, there has been little in the way of any significant decline.  As I
noted earlier, in 2003 and 2004, he earned gross business income of $38,124 and
$29,599.  He says that he returned to work in late 2007 and worked throughout
2008, working only part-time.  Yet I note that his gross business income was
$44,477 in 2007 and $41,604 in 2008, more than he earned driving full-time in
2004.  At trial the plaintiff offered no explanation for his dramatically
increased gross earnings during this period.

6.4          
Conclusion – Past wage loss:

[137]     For the purposes
of this calculation, and adopting what I consider to be the most reliable
evidence, I assume that Mr. Sangha’s loss would be the equivalent of Mr. Manjat’s
earnings that is $550 per month for a period of approximately two years,
resulting in a loss of $13,200.  This figure is the equivalent of $6,600 per
annum, which is somewhat less than Mr. Sangha’s immediate pre-accident
earnings in 2003 and 2004 but is likely in line with the decline in the taxi
business which Mr. Shoker testified has occurred over described by Mr. Shoker
which has taken place over the last five years.  I award $13,200 for the past
wage loss to the date of trial.

6.5          
Future income loss:

[138]     Adopting
the earlier figures, Mr. Sangha has calculated that the present value of a
future loss of $15,000 per annum over the remaining 18 years of his working
life, is $250,290.  Assuming a longer working life to age 66.6 years, he
calculates a loss of $272,538.  He rejects the notion that the usual labour
market contingencies ought to apply in this case.

[139]     I am not
persuaded that the plaintiff has proven any loss under this head of damages.  I
accept the evidence of Dr. Schweigel, Dr. Reebye and Dr. Riar
that provided he receives the appropriate treatment, the plaintiff is capable
of returning to work full-time as a taxi driver.  To the extent he cannot do
so, I find that this is as a result of his own pre-existing psychiatric illness
and is not the result of the accident.

[140]     I should
also note that even if Mr. Sangha is unable to return to work as a taxi
driver, due to his inability to sit for periods exceeding 20 minutes at a time,
(which I do not accept given his continual period of employment from October 2007
until December 2008), there is no dispute that he nevertheless retains the
residual capacity to work in light or sedentary work.  This would include work
as a security guard or a parking lot attendant.  I accept, as Mr. McNeill
of Harbourview Rehabilitation testified, that such occupations would attract
wages in the range of $30,000-$35,000 per year, well in excess of his earnings
as a taxi driver.

6.6          
Future care costs:

[141]     The
plaintiff has advanced a claim for the future costs of physiotherapy,
medication and psychological counselling.  He has spent an average of $687.78
per year for physiotherapy and medication.  Adopting Mr. Hildebrand’s
future costs multiplier of $16,768 per $1,000/year, Mr. Piamonte estimates
that portion of the claim has a present value of $11,532.70.  As to the
psychological counseling, he adopts Dr. Hay’s prediction that the
plaintiff will need to spend $1500 per year on psychological counselling, for
ten years, thus having a present value of $ 13,470.

[142]     Again I am
of the view that the evidence does not support such a future loss.  The
plaintiff was treated with anti-depressants and anti-anxiety medication pre-accident. 
Any future prescriptions in my view would be for a pre-existing symptomatic
condition not caused by the accident.  Similarly, the need for cognitive
behavioural therapy is not related to the accident.  I agree that such
counselling would be to assist with the treatment of his pre-existing depression. 
I will make no award under this head of damage.

6.7          
Loss of housekeeping services:

[143]     The
plaintiff claims the sum of $259 per month by way of the amounts he says he
pays others to do yard work and repair work around the home.  This evidence was
very vague and non-specific and was not corroborated by his brother, the co-owner
of the home who testified at trial.  There is an insufficient evidentiary
foundation for such an award of damages.

6.8          
Special damages:

[144]     The
plaintiff seeks recovery of special damages totalling $3,782.78 which he spent
on physiotherapy ($2,267.65) and medications ($1515.13) from the date of accident
until the date of trial.  The defence agrees that he is entitled to some of
that claim, particularly the initial pain medications and physiotherapy. 
However the defence contests the notion that all of the costs over the past
seven years are properly recoverable since they are not causally connected to
the accident.  I agree.  While it is difficult not to be arbitrary, I have
determined that all of the physiotherapy and only some of the medications costs
are recoverable here.  I award the sum of $2500 as special damages.

7.0          
Costs:

[145]     Since I am
unaware of the settlement offers exchanged by the parties, I am unable to make
any award here.  I leave it to counsel to address the matter between themselves
and if they are unable to agree, to arrange to make further submissions on the
matter.

“The
Honourable Madam Justice Boyd”