IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121004

Docket: M105645

Registry: Vancouver

Between:

Chelina Santina Richelle Wallner

Plaintiff

And:

Kamal Uppal, Surinder Singh Uppal,
Sukhdev Garcha,
Darshan Kaur Garcha and Harjeet Kaur Garcha

Defendants

Before: The Honourable Madam Justice
Stromberg-Stein

Oral Reasons for Judgment

October 4, 2012

[1]            
THE COURT: On May 29, 2009, the 37-year-old
plaintiff was the passenger in her car, a 2008 Chevrolet Cobalt, driven by her
then boyfriend.  The car stopped for traffic on the Knight Street Bridge and
was rear-ended by Mr. Garcha’s 2002 Chevrolet Venture.  Mr. Garcha’s
vehicle was struck from behind by Mr. Uppal’s 1997 Pontiac Grand Am, which
impact caused the Garcha vehicle to strike the plaintiff’s car a second time.

[2]            
The impacts to the
plaintiff’s car were minor.  The damage to the plaintiff’s rear bumper was
estimated to be $449.59, taxes included; and to the Garcha front bumper was
$549.99.  The minor damage to the bumpers was cosmetic only.  The plaintiff
never repaired the damage.

[3]            
On impact, the
plaintiff was jarred and felt like an elastic snapped in her back by her left
shoulder blade.  As a result of the accident, the plaintiff complained of
injuries to her left shoulder, arm, upper back extending into her neck, and
tingling and numbness in her left arm and fingers.

[4]            
Liability is
admitted. The issue is quantum of general damages.  The defendant does not
dispute special damages in the amount of $283 for seven physiotherapy visits
and mileage.

[5]            
As plaintiff’s
counsel points out, citing Sourisseau v. Peters, 2012 BCSC 1163, minor
damage does not necessarily equate to the extent of a plaintiff’s injury.  As Mr. Justice
Sewell said at para. 54 of that decision, “The issue for determination is
whether the plaintiff’s injuries were caused or contributed to by the
accident.”

[6]            
As defendants’
counsel points out, citing Makara v. Weihmann, 2005 BCSC 1757, the
plaintiff bears the burden of proving her injuries were caused by the
defendants’ negligence, and the nature and magnitude of vehicle damage, in the
absence of objective evidence of injury, is relevant.

[7]            
In this case,
there were very few medical visits by the plaintiff regarding her accident
injuries.  She never missed a day of work on account of her injuries.  She
attended only seven physiotherapy visits.  Neither her family doctor nor Dr. Cameron,
a neurologist retained by her counsel, were able to find any objective signs of
injury.  Yet both doctors, relying on the plaintiff’s self report of subjective
complaints, concluded the plaintiff continues to suffer injuries as a result of
the accident.  Her family doctor documented that the symptoms were minimal and
did not interfere with her recreational, social or household activities.  Dr. Cameron
documented minimal symptoms that were not always present.

[8]            
She reported to
her family doctor back pain in only two visits.  She reported neck pain in only
two visits. Initially her family doctor was hopeful she would recover fully;
however, he now allows that her condition may be permanent.

[9]            
In examination,
Dr. Cameron noted full range of motion, no pain behaviour, no muscle
wasting, and a negative test, despite a complaint, of a weak left grip
strength.  In the opinion of Dr. Cameron, the plaintiff’s complaints are
consistent with aggravation of dysesthesia or hypoesthesia in the left hand in
the C8-T1 distribution as a result of soft tissue and musculoskeletal injuries
resulting in muscle spasm in the left neck and left shoulder area following
this accident.  Dr. Cameron opined the plaintiff will continue to suffer
permanent disability due to ongoing pain and discomfort involving the left
shoulder, left base of neck and left proximal arm area.

[10]        
The plaintiff
relies on a number of cases which suggest a range of damages of $22,500 to
$50,000.  The defendants rely on cases which suggest a range of damages of
$10,000-$18,000.  However, the defendants say the court should consider a range
of $15,000-$20,000, minus a percentage for failure to mitigate.

[11]        
With respect to
the issue of mitigation, the plaintiff’s family doctor recommended
physiotherapy and completion of a Customized Rehabilitation Program.  The plaintiff
went to seven of 12 visits.  She said she sometimes had temporary improvement
with physiotherapy.  She denies she told her family doctor she could not go to
the other visits because she was busy with work.  She was referred again for
physiotherapy and failed to go to any appointments.  She claims she does not
recall this referral.  Where the plaintiff’s evidence is at odds with the
documented evidence of her doctor, I accept the documented evidence, noting the
passage of time must have impacted the plaintiff’s recollection.  The doctor
testified no further treatment would make a difference to her present situation
and physiotherapy might have assisted with recovery but does not always help.

[12]        
The defendant
bears the burden of proof that the plaintiff unreasonably failed to follow the
recommended treatment of a doctor.  Given the evidence in this case, the defendants’
burden is not satisfied.

[13]        
An award of
damages must be crafted to an individual plaintiff bearing in mind Stapley
v. Hejslet, 2006 BCCA 34, which sets out an inexhaustive list of factors to
consider in assessing general damages.

[14]        
The plaintiff’s
claim is for damages for a permanent partial disability relating to her
intermittent ongoing neck, upper back and shoulder pain and left arm pain, and
numbness and tingling she says is caused by the accident.  The plaintiff
acknowledges her condition is relatively mild but maintains it is persistent
and likely permanent.  She claims she experiences pain and discomfort while
commuting to work, at work, doing household work, and during recreational
activity.  She complains of intermittent weakness and lack of sensitivity in
her left hand.  She claims she is unable to predict when she will be
symptomatic.

[15]        
In this case, in
addition to minimal cosmetic damage to the vehicles, the plaintiff’s subjective
complaints were not objectively verifiable, and in any event her injuries were
minor and of minimal impact on her life.  The plaintiff has not missed any work
and has no claim for past wage loss or for loss of future earning capacity
despite maintaining a permanent partial disability.  The evidence establishes
the plaintiff suffered soft tissue injuries of a minor nature, with continued
minor, intermittent numbness and tingling in her left arm and fingers, which injuries
have had and will have minimal impact on her life.

[16]        
In the result,
based on an assessment of the evidence and considering the authorities relied
on by counsel, the plaintiff is awarded general damages in the amount of
$20,000.  In addition, she is awarded special damages in the amount of $283,
with court order interest.  With the agreement of counsel, costs are set
pursuant to Supreme Court Civil Rules, R.15-1(15)(c) at $11,000 and
disbursements.

"STROMBERG-STEIN
J."