IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pardo v. Chen, |
| 2012 BCSC 1525 |
Date: 20121017
Docket: M100512
Registry:
Vancouver
Between:
Janet Pardo
Plaintiff
And
Hui Z. Chen,
Van-Whole Produce Ltd. and Heng Yang
Defendants
– and –
Docket: M115596
Registry:
Vancouver
Between:
Janet Pardo
Plaintiff
And
Douglas Young and
Meredith Young
Defendants
Before:
The Honourable Mr. Justice Kelleher
Reasons for Judgment
The Plaintiff, Janet Pardo: | On her own behalf |
Counsel for the Defendants: | Melinda G. Voros |
Place and Date of Trial: | Vancouver, B.C. September 10-14, 2012 |
Place and Date of Judgment: | Vancouver, B.C. October 17, 2012 |
[1]
This is a trial of two actions. By Master McNaughtons order dated
August 12, 2012, the two actions are being tried at the same time.
[2]
Both actions concern allegations by the plaintiff, Janet Pardo, that she
has been injured through the negligence of the defendants. The first action
concerns two motor vehicle accidents, one on February 8, 2008, and one on
February 18, 2008.
[3]
The February 8, 2008, accident (the First Accident) occurred in the
parking lot of Coquitlam Centre Mall on Barnett Highway in Coquitlam. The
plaintiff alleges that the defendant Hui Chens vehicle struck her vehicle as
she was loading groceries into her car. She was injured, she alleges, when she
fell to the ground. Liability for the First Accident is admitted.
[4]
The February 18, 2008, accident (the Second Accident) occurred on
Westminster Highway in Richmond. The plaintiff was a passenger in a vehicle driven
by her husband. The defendant, Heng Yang was driving a vehicle owned by the
defendant Van-Whole Produce Ltd. There was a collision and the plaintiff
alleges she was injured. Liability is admitted. The issue is whether the
plaintiff suffered injuries, and if so, to what extent.
[5]
The second action concerns a collision which took place on November 3,
2009 (the Third Accident). This occurred at the entrance to a parking lot of
a different mall in Coquitlam, at the corner of Cameron Street and North Road. The
plaintiff says that she was rear-ended by a vehicle owned by the defendant
Douglas Young and being driven by the defendant Meredith Young. The
defendants position is that the plaintiff was responsible for the Third
Accident.
[6]
The plaintiff is 56 years old. She and her husband, Domingo Pardo, came
to Canada from the Philippines in 1990 with their three children, Brian, Tracy
and Christian. The children are now 32, 30 and 27 respectively and still live
at home. The plaintiff has had a difficult time. She has suffered a series of
injuries well before the accident and has had issues with her employers over
the years. She and her husband support their family and as well, send money
monthly to the Philippines to support relatives there.
[7]
Ms. Pardo and her family moved to Coquitlam in 1996. She began
working for the Coquitlam School Board doing noon hour supervision. As well,
she began a part-time job at an Esso service station.
[8]
Ms. Pardo then worked for the Abbotsford School District for a
short time. In 2000 the Coquitlam School District hired her as a full-time
custodian.
[9]
Her employment was terminated by the Coquitlam School District in 2005. She
worked for a short time at New Westminster City Hall. She was then hired by
the Burnaby School Board, again as a custodian, starting in 2006.
[10]
In 2007 Ms. Pardo was diagnosed with a bulging disc and was off
work on medical leave from July 2007 to March 2008. Thus she was on medical
leave at the time of the first two accidents.
[11]
Ms. Pardos physician advised her to seek less strenuous employment.
She worked for EasyServ from April to August of 2008. She then bought a
dry-cleaning business. She maintained her part-time job at the service
station.
The Plaintiffs Condition before the Accident
[12]
It is not disputed that Ms. Pardo suffered from a number of
debilitating conditions many years before the accidents. First, the plaintiff
has had difficulties with her knees since before she came to Canada. She
testified that a neurologist told her she had water in her knees. Numbness in
her left leg continues to be a problem.
[13]
Second, the plaintiff was diagnosed with carpal tunnel syndrome in 2000.
She had surgery for this condition in her right hand in 2001 and her left hand
in 2002. She agrees with her physician, Dr. Choo Fone, who told her that
her work duties as a custodian predispose her to carpal tunnel syndrome.
[14]
The carpel tunnel syndrome caused her to drop things, both at work
(scrapers, dusters, spray bottles) and at home (utensils, pots and pans).
[15]
Third, the plaintiff has suffered from migraine headaches since 1992. Her
migraines are disabling: she must lie down in a silent dark environment when
they strike. She said that migraines can be triggered by exposure to
chemicals, bending and rising quickly, and other things.
[16]
Fourth, the plaintiff was diagnosed with fibromyalgia in 2002. It
affects her back, hands, neck and shoulders.
[17]
Fifth, the plaintiff has chronic back pain. This began with her
involvement in a serious motor vehicle accident in October 2000. Her vehicle
was T-boned. She settled the litigation arising from that accident a few years
later, but feels today that she was not adequately compensated.
[18]
Ms. Pardo suffered an episode in July, 2007, when she alit from her
vehicle and was unable to walk. She was sent for a CT scan and it was
determined that she had a bulging disc at L4/L5. This was when her physician
put her on medical leave for a period of eight months.
[19]
These conditions, even before the accidents, affected Ms. Pardos
life. She used to enjoy going for walks but has been unable to do so since
July 2007. She has avoided social events since 2000. She has done far less
cooking because of her back from July 2000 onwards. Before 2000, she enjoyed
gardening, but has found since then that it affects her migraines and carpal
tunnel syndrome.
The First Accident
[20]
Ms. Pardo testified that she was grocery shopping with her daughter
Tracy in Coquitlam Center Mall on February 8, 2008. Tracy and she returned to
her parked vehicle, a Chrysler van.
[21]
Tracy got into the car. Ms. Pardo had just opened the sliding doors
to load the grocery bags. The defendant Hui Chens vehicle struck her vehicle.
[22]
Ms. Pardo was not in the vehicle and was not in physical contact
with it. She was standing outside. But as a result of the impact, and no
doubt because she was startled, she, in her words, fell on my butt.
[23]
Ms. Pardo explained that she sometimes experiences weakness in her
left leg. This may have been a contributing factor. Ms. Pardo said that
her daughter helped her up.
[24]
The police were contacted but advised them on the telephone that they
were not attending because there were no injuries.
The Second Accident
[25]
The Second Accident occurred on February 18, 2008. Ms. Pardo was a
passenger in a 4-Runner. Her husband Domingo was driving. They were
proceeding east on Westminster Highway in Richmond. There is some conflict on
the evidence about the circumstances that led to the accident. Nothing turns
on these differences in recollection.
[26]
The defendant Heng Yang made a right turn onto Westminster Highway. Mr. Pardo
swerved to avoid the truck. The right mirror of Mr. Pardos car hit the
left rear corner of Mr. Yangs truck. There was no damage to the truck. The
damage to the car was confined to the mirror. It was almost detached from the
car. Mr. Yang testified that the impact was at a very low speed. He had
just pulled away from the stop sign in his loaded truck.
[27]
The plaintiff testified that when she arrived home, she was suffering
from back pain, neck pain and migraine headaches. She took Tylenol.
[28]
I am not persuaded that the plaintiff suffered injuries as a result of
this collision. The only part of the vehicle that was struck was the mirror. There
was no jarring of the vehicle. Ms. Pardo was not propelled forward or back.
Dr. Riad Shahid is an orthopaedic surgeon. He was retained by the
parties as a joint expert. In his opinion dated August 28, 2012, he stated the
following:
It is extremely unlikely that the
second accident of February 18, 2008 has contributed to any pain reoccurrence
since striking knocking off the side mirror of her vehicle cannot possibly
result in forces within a vehicle causing reoccurrence of back pain.
[29]
I agree with Dr. Shahid. The plaintiff has not established on a
balance of probabilities that she suffered any injury as a result of the
February 18, 2008, accident.
The Third Accident
[30]
Ms. Pardo described the November 3, 2009, accident in her evidence.
She was coming from her dry-cleaning store at approximately 5:30 p.m., on her
way to her part-time job at the Esso station. She suddenly thought that she
may have left cash in the till at the dry-cleaners and perhaps left the door
unlocked. She decided to return to the store to check.
[31]
Ms. Pardo was travelling east on Cameron Street at the time. She
decided to enter the strip mall just west of North Road, for the purpose of
turning around and heading back west on Cameron Street. There is a dedicated
left turn lane from Cameron Street into the mall. She turned left, or north,
into the mall, driving past a sidewalk so her vehicle was entirely in the mall.
[32]
Ms. Pardo testified that she brought her vehicle to a stop. She
was planning to look around to ensure that it was safe, and then turn around in
the mall and proceed back onto Cameron Street, west bound.
[33]
She testified that before she could proceed, the vehicle behind her
struck her vehicle. Ms. Pardo said that she got out of the car and had a
conversation with the other driver. She said that the other driver, Meredith
Young, said to her:
Why did you back up?
[34]
Ms. Pardo said that she replied:
I didnt! You hit me from behind.
[35]
She said that Ms. Young told her that she was honking her horn. Ms. Pardo
said that she did not hear that.
[36]
Ms. Young gave evidence about the accident. Her evidence was
similar in some respects, but entirely contrary to the plaintiffs evidence in
other respects. Meredith Young was driving her Honda Civic sedan on her way to
a dance studio that is reached through the mall at Cameron Street and North
Road. Her daughter Laura was a passenger.
[37]
Ms. Young was driving east on Cameron and then entered the left
turn lane to enter the mall. She said that the vehicle ahead of her cleared
the sidewalk. Ms. Young then began her turn. She noticed the brake lights
on the vehicle in front of her and slowed down. She then saw the back-up
lights of the vehicle come on. Ms. Young said that she stopped. At this
point she was straddling the two west bound lanes on Cameron and was
perpendicular to the sidewalk. She came to a stop before the sidewalk.
[38]
When the vehicle in front of her began to back up, Ms. Young
testified she put her hand on the horn for approximately three seconds. The
vehicle in front of her continued to back up. Ms. Young checked behind her
to see if she could back up, but it was too late. Her car was struck by the
vehicle in front of her. The impact was at a very low rate of speed. The
larger car of the plaintiff, a 4-Runner, touched the hood of her Honda. The
hood crumpled.
[39]
Ms. Young said she felt no impact. She recalled that she asked Ms. Pardo
what she was doing backing into an intersection. Ms. Pardo countered that
it was not an intersection and that she was looking in her rear view mirror but
she could not see Ms. Young. Ms. Young asked her if she heard the
honking. Ms. Pardo said that she did not.
[40]
They both proceeded into the parking lot to exchange information. Ms. Young
testified that Ms. Pardo said:
There was no damage to my vehicle
so I didnt hit you.
[41]
Ms. Young said that she was flabbergasted. She heard Ms. Pardo
say that she looked in the rear view mirror and that Ms. Young was not
there. Again Ms. Pardo denied hearing honking.
[42]
Laura Young is the daughter of the defendants. She was a passenger in
the Young vehicle when the impact occurred. Ms. Young testified that they
were on their way to her dance class. Her mother was proceeding east on
Cameron Street. Just before reaching North Road, her mother drove into the
left lane, a dedicated left turn lane to turn into the strip mall where the
studio was located.
[43]
They turned left but did not reach the north sidewalk on Cameron Street.
There was a vehicle in front of them which had turned into the mall.
[44]
Laura Young testified the vehicle in front of them stopped when it crossed
the sidewalk and was in the mall. Its back-up lights came on and the vehicle
began to back up. She said her mother blew the horn for, Laura Young estimated,
five seconds. But Ms. Pardos vehicle backed slowly into theirs. There
was a light impact: the bumper of the larger 4-Runner hit the tip of the hood
of the Young vehicle.
[45]
Laura Young said that both her mother and Ms. Pardo got out of
their vehicles. She said she could tell her mother was very upset.
[46]
Ms. Young was asked in cross-examination whether it was not true
that her mother rear-ended the plaintiffs vehicle. Laura Young maintained her
testimony.
[47]
Two estimators employed by the Insurance Corporation of British Columbia
testified as well. One of them was the estimator for the damage to Ms. Pardos
vehicle. The other was the estimator for damage to Ms. Youngs vehicle. They
were both adamant that the scratches on the hood made it clear that the vehicle
in front was backing into the vehicle behind. That is because if the plaintiff
had been rear-ended, the scrapes would have been parallel or almost parallel to
the vehicle in front of it.
[48]
I prefer the recollection of Meredith Young and Laura Young to that of Ms. Pardo.
It is more consistent with all of the surrounding circumstances. It is
unlikely that Ms. Pardos version is true; there was no reason for Ms. Pardo
to bring her car to a stop before circling the parking lot and returning. Rather,
the circumstances persuade me that Ms. Pardo was intending to make a three
point turn: that is, to pull into the mall, back out and return west bound on
Cameron.
[49]
Ms. Pardo argued, in the alternative I suppose, that Meredith Young
should have simply backed up and driven around her. She could have avoided the
accident by driving to the left of the backing up vehicle and proceeding into
the mall.
[50]
I accept the evidence of Meredith Young that there was no time to do
that.
[51]
I conclude, therefore, that the Third Accident was entirely the fault of
the plaintiff. The Second Action is dismissed.
Other Witnesses
[52]
Juliet Mather described herself as a distant auntie of the plaintiff. She
came to Canada from the Philippines in 1993 and lives just a few houses away
from the Pardo family. Ms. Mather testified that she has observed that
the plaintiff is in pain. She assists the plaintiff with gardening. She also
cooks a meal for the Pardo family once a week.
[53]
Ms. Mather said that the plaintiff used to be jolly; but now when
she invites Ms. Pardo over for social matters or bible study, Ms. Pardo
does not come.
[54]
Ms. Mather could not identify when these changes occurred. However,
the evidence of Ms. Pardo indicates these difficulties described by Ms. Mather
were encountered well before the accident.
[55]
Domingo Pardo has been married to the plaintiff for 33 years. He
testified that his wife is in pain. His evidence is that Ms. Pardo is a
very responsible and hard working woman who does housework despite the fact
that it causes her pain. He said that on a scale of one to ten, her current
pain is between nine and ten.
[56]
Mr. Pardo stated that Ms. Pardo lacks enthusiasm after work
and it has affected their social life. Pain is interfering with her enjoyment
of life.
[57]
Mr. Pardo also testified that their sex life has been affected. He
testified that the third motor vehicle accident triggered this problem.
The Plaintiffs Injuries
[58]
Ms. Pardo was not injured in the Second Accident. The Third Accident
was not caused by Meredith Young.
[59]
The only accident where Ms. Pardo suffered an injury and there is
liability, is the First Accident.
[60]
Ms. Pardo testified that when she fell down because of the First
Accident, she hurt her back. She went home and applied Salonpas, an adhesive
patch which provides pain relief.
[61]
Ms. Pardo said her low back pain was made worse by the First
Accident. She estimated that her back was worsened about 15% by the accident.
She said it returned to the previous level by March, 2008, one month later.
[62]
Ms. Pardo also testified that the February 8, 2008, accident
aggravated her neck. She said that on a scale of 1-10 (where no pain is 1 and
severe pain is 10) her neck pain was a 5 before the accident. After the First
Accident, it was between 5.5 and 7. It went down to 5.5 before the November
2009 accident. By the time of the plaintiffs examination for discovery in
November 2011, it was between 4 and 4.5.
[63]
Dr. Shahid, the orthopaedic surgeon, has examined Ms. Pardo
and has reviewed x-rays and a 2010 MRI of her lumbar spine. He concluded that
her back pain is caused by a posterior annular lesion. This condition
pre-dated all of the accidents. As he put it:
It is clear that none of the
accidents listed are the cause of onset of chronic back pain.
Causation and Damages
[64]
The Supreme Court of Canada recently discussed the applicable principles
in Clements v. Clements, 2012 SCC 32. The test for causation in
negligence remains the but for test. A plaintiff need only prove that a
defendants breach of the standard of care is a cause of her injuries. Two
other principles are applicable here. First, if a plaintiff suffers greater
than anticipated harm as a result of the defendants negligence, the defendant
is liable for the entire harm, not just the harm that one might think
foreseeable for a normal healthy person. This is known as the thin skull
rule.
[65]
Second, a defendant is only liable for the damages necessary to restore
a plaintiff to the position she was in before the accident. That is to say,
negligent defendants are only responsible for the harm their negligence caused,
no more and no less. This is called the crumbling skull rule.
[66]
In Athey v. Leonati, [1996] 3 S.C.R. 458, the Supreme Court of
Canada stated that the crumbling skull rule:
… recognizes that the pre-existing condition was inherent
in the plaintiffs original position. T he defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage [citations
omitted].
[at para. 35, emphasis in original]
[67]
Here, then, the defendant Hui Chen is liable for Ms. Pardos
additional pain and suffering resulting from the First Accident.
Non-Pecuniary Damages
[68]
I have considered a number of decisions including McArthur v. Hudson,
2012 BCSC 1293; Bridges v. Brennan, 2003 BCSC 456; Hough v. Wyatt,
2011 BCSC 910; Demsey v. Oh, 2011 BCSC 216 and Anderson v. Dwyer,
2010 BCSC 526.
[69]
The plaintiff relied on Delgiglio v. Becker, 2012 BCSC 480. This
case does not assist me because the facts are completely different. In that
case, the plaintiff suffered a permanent re-aggravation of his neck and a lower
back injury which had a significant impact on his life. The court in that case
found that the symptoms would not be present but for the accident. He had not
returned to his pre-accident level of pain and his prognosis was described as
guarded at best (at para. 60).
[70]
In the present case, Ms. Pardo was already disabled. She suffered
an aggravation from the February 8, 2008, motor vehicle accident. There was a
temporary worsening of her back and neck symptoms. Ms. Pardos principal
complaint was her back pain. This aggravation lasted less than two months.
[71]
After reviewing the cases, I conclude that an appropriate award is
$8,000.
Past Income Loss
[72]
The plaintiff has not proved any income loss. She was disabled at the
time of the First Accident. The aggravation of her back condition has not been
shown to have caused any loss of income.
Future Income Loss/Loss of Capacity
[73]
Ms. Pardo has fully recovered from any injuries she suffered in the
February 8, 2008, accident. There is no evidence to support a claim for future
income loss or loss of capacity.
[74]
To summarize, Action No. M115596 is dismissed. In Action M100512,
I award $8,000 against the defendant Hui Z. Chen.
[75]
Costs may be spoken to if necessary.
__________________________
Mr. Justice Kelleher