IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Nemoto v. Phagura, |
| 2012 BCSC 1809 |
Date: 20121203
Docket: M135027
Registry:
New Westminster
Between:
Rui Nemoto, an
Infant by her Mother and Litigation Guardian,
Sanae Nemoto and
the said Sanae Nemoto
Plaintiffs
And
Paramjit S.
Phagura, Wells Fargo Equipment Finance
Company/Societ de
Financement DEquipement Wells Fargo
and
BBD Trucking & Excavating Ltd.
Defendants
Before:
The Honourable Mr. Justice N. Smith
Reasons for Judgment
Counsel for Plaintiffs: | J.F.R.Chouinard A.E.Kuntze |
Counsel for Defendants: | A.Spence |
Place and Date of Trial/Hearing: | New Westminster, B.C. September 25-27, 2012 |
Place and Date of Judgment: | New Westminster, B.C. December 3, 2012 |
[1]
The plaintiff Rui Nemoto seeks damages for injuries in a motor vehicle
collision that occurred on August 27, 2008. She was 13 years old at the time
and was a front seat passenger in a car driven by her mother. Her brother was
in the back seat. The car was stopped at a red light when it was hit from
behind by the defendants truck. Liability is not in issue.
[2]
The plaintiff, her mother and brother had come to Canada from Japan about
two months before the accident and the plaintiff was about to start school here
in September 2008.
[3]
No medical attention was sought at the time of the accident, but the
plaintiff testified that she was unable to move the next morning because of
pain in her neck, shoulders, back and right arm. Her mother took her to the
nearest walk-in clinic.
[4]
The plaintiff entered grade 8 in Burnaby in September 2008 as scheduled.
In mid-September, her pain started to become intermittent and would come and go
depending on activities. She testified that for the first three months after
the collision, she found it difficult to study because of shoulder and back
pain. She had to take frequent breaks for resting and stretching. At school,
she was unable to do some of the activities that were part of her physical
education class.
[5]
The plaintiffs mother, Sanae Nemoto said that during the fall of 2008,
her daughter was unable to sleep at night and appeared to lose interest in most
things. All she could do was go to school and come back home.
[6]
The plaintiff said intermittent pain continued until at least her grade
9 school year. However, even in grade 8 she was able to play on a school
volleyball team. The only problem in volleyball came in grade 9, when the
overhand serve was introduced and she was the only player unable to do it
because of arm pain. This difficulty disappeared by Grade 10. Before coming to
Canada, the plaintiff had attained a high level in karate, but has not
continued in that sport.
[7]
The plaintiff said her ability to help with household chores was reduced
for several months. She also had nightmares about the accident.
[8]
In the spring of 2009, she joined a school field trip to Europe and was
unable to fully participate because she became too tired walking long distances.
Two others in the group would stay with her to assist and to carry her back
pack. Judy Fujiki, the teacher who supervised the tour, confirmed that those
three had difficulty keeping up with the group, although she was unaware at the
time of the reason. The plaintiff said her fatigue problems gradually improved
after June 2010, when she was prescribed medication for an unrelated iron
deficiency.
[9]
The plaintiff had regular physiotherapy treatments, usually twice a
week, from September 2008 until June 2009, and then had chiropractic treatments
from September 2009 to January 2010. She testified that she found these
treatments helpful but recovery was gradual. She is now largely pain free.
[10]
In February 2011, the plaintiff began to see a new family physician, Dr.
Arora. At that time–two and a half years after the accident–neither the
plaintiff nor her mother told Dr. Arora anything about the accident or problems
related to it.
[11]
Dr. Arora subsequently learned about the accident from counsel and
examined the plaintiff for the purpose of preparing a report in June 2012. At
that time, his examination was completely normal and the plaintiff had no
symptoms. Dr. Aroras opinion–the only medical opinion in evidence– is
therefore based entirely on his review of medical records and the plaintiffs
recollection of her symptoms. His opinion is that the plaintiffs symptoms are
consistent with soft tissue injuries to the neck, lower back and right forearm
and became chronic and intermittent over the next three and half years.
[12]
In addition to the physical problems, the plaintiff says that after the
accident she was nervous and fearful when riding in a car with her mother, particularly
if there was a truck nearby or her mother braked hard for any reason. She said
hard braking still scares her. The plaintiffs sister, Rei Nemoto, who
subsequently joined her mother and siblings in Canada, says the plaintiff will
yell and scream at her mother when she brakes hard.
[13]
Mrs. Nemoto said the plaintiff is still fearful when a large truck is
near their car– her body stiffens and she leans back as if avoiding something
and grips the armrest. According to the mother, this behaviour was most
pronounced during the first two years after the accident. Mrs. Nemoto agreed
that she also experiences anxiety in these situations. It therefore may be that
some of the plaintiffs anxiety mirrors what she sees in her mother.
[14]
At the time of trial, the plaintiff had obtained her learners licence
and said that when driving she tends to check her rear-view mirror excessively.
Her mother describes the plaintiffs driving as slow and overcautious.
[15]
The plaintiff was seen by a psychological counsellor, Dr. Naoko Harada
Winther on three occasions in May and June 2010. Dr. Harada diagnosed a
generalized anxiety disorder, which she assumed to be the result of the
accident, although it appears the plaintiff did not fully meet the diagnostic
criteria for that disorder. Dr. Harada agreed that the disorder was a mild one
and that the plaintiff had recovered by the time of a follow-up session in
February 2012.
[16]
On the evidence before me, I find that the plaintiff suffered
significant pain and limitations from the date of the accident until
approximately the end of 2008, with intermittent, lingering difficulties for at
least another year, but had achieved full physical recovery no later than two
years after the accident. The physical difficulties in the immediate
post-accident period were likely more difficult for the plaintiff to deal with
than might otherwise have been the case because she was, at the same time,
adjusting to a new school and life in a new country.
[17]
I also find that the plaintiff experienced severe anxiety while riding
in cars for approximately two years and that anxiety still affects her efforts
to learn to drive. For purposes of assessing damages, it does not matter that
this anxiety may, to some extent, be influenced by the fact that her mother has
similar fears and anxiety flowing from the same accident. In any event, there
is no reason to believe this will be a long-term problem.
[18]
The plaintiff is in Canada on a student visa, which does not permit her
to work, so there is no claim for income loss. I find there is no need for any
future care arising from the accident.
[19]
Counsel for the plaintiff submits non-pecuniary damages of $55,000 would
be appropriate, relying on Raun v. Suran, 2010 BCSC 793 and Cabral v.
Brice, 2010 BCSC 197. Both those cases involved much more severe physical
injuries than are present in this case.
[20]
Counsel for the defendants argues for non-pecuniary damages between $10,000
and $20,000, citing a number of cases involving relatively mild soft-tissue
injuries, some with continuing symptoms. These cases include: Dolha v. Heft,
2011 BCSC 738, Glew v. Klimm, 2004 BCSC 972 and Williamson v.
Nakashimada, 2004 BCSC 1348. I agree that the plaintiffs physical injuries
are roughly comparable to those cases, but find the psychological factors to be
more significant.
[21]
Of course, previous cases provide only a guideline and the most
important consideration is the impact of the injury on the individual plaintiff.
I give particular weight to the plaintiffs age, her active sports-oriented
lifestyle and the accidents impact on an exciting, but challenging, period in
her life.
[22]
In all the circumstances, I assess the infant plaintiff Rui Nemotos
non-pecuniary damages at $25,000. I am also satisfied that her mother, the
adult plaintiff and litigation guardian, incurred special damages for her
daughters physiotherapy and other treatment in the amount of $2,023.75. The
plaintiffs will have judgment for those amounts, plus costs.
N.
Smith J.