IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121026

Docket: S19972

Registry:
Chilliwack

Between:

Aisha Abdi

Plaintiff

And

Daniel Leigh,

South Coast
British Columbia Transit Authority

(formerly known as
Greater Vancouver Transportation Authority)

doing business as
Translink and/or Coast Mountain Bus Company Ltd.,

John
Doe or Jane Doe and Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff seeks damages for injuries alleged to
have been sustained by her when a Translink bus on which she was a passenger braked
suddenly to avoid a collision with a vehicle driven by an unidentified
motorist.

[2]            
The claim is resisted, in part, on the basis of the plaintiff’s failure
to have taken any reasonable steps to ascertain the unidentified motorist’s
identity.

[3]            
As applied to the facts of the present case, this defence leads to a
question which appears to be a matter of first impression: will such failure on
the part of a plaintiff preclude a claim for damages against ICBC, if the court
is satisfied that any investigation would have been fruitless and that ICBC has
therefore suffered no prejudice?

[4]            
Ms. Abdi, then a 34-year-old single mother of two boys, was injured
in an accident on May 6, 2007.  She was a passenger in a bus.  She was seated
on the aisle in the front row of forward-facing seats.  Her younger son was
with her.  There were five other passengers on the bus. It was late at night,
approximately 1:00 a.m.  They were on their way home from a late movie.

[5]            
The bus was travelling on 200th Street in Langley.  As it neared the
intersection with 64th Avenue, the bus driver had to apply the brakes suddenly
to avoid an oncoming car which suddenly and without warning had turned from the
oncoming centre lane.  The car veered across the bus’ path of travel, a
collision was missed by about five feet according to the bus driver, and the
car vanished into the night.  Because of the violence of the braking motion,
the plaintiff was flung to the floor, hitting her back against the inside wheel
housing.  She was immediately in pain and was taken by ambulance to hospital.

[6]            
It is clear on the evidence that the left-turning, unidentified driver
was wholly at fault.

[7]            
The first question to be resolved in this case is the plaintiff’s right
to recover damages from ICBC.  Her right to do so depends on s. 24(5) of
the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 which requires
her to take all reasonable steps to ascertain the identity of the driver. It
reads:

(5) In an action against the corporation as nominal
defendant, a judgment against the corporation must not be given unless the
court is satisfied that

(a) all reasonable efforts have
been made by the parties to ascertain the identity of the unknown owner and
driver or unknown driver, as the case may be, and

(b) the identity of those persons or that person, as the
case may be, is not ascertainable.

[8]            
The controlling authority on point is the decision of the B.C. Court of
Appeal in Leggett v. Insurance Corporation of British Columbia (1992),
72 B.C.L.R. (2d) 201, 11 C.C.L.I. (2d) 10. At paras. 9 to 12, Justice
Taylor said the following:

[9]        The section provides a means by which a person who
has suffered injury or property damage in a motor vehicle accident may obtain
compensation from the government insurer even though the driver said to be at
fault, and the owner of the vehicle which was being driven by that person, are
insured in another jurisdiction or not insured at all, even though the
corporation will, in any event, be unable to look to the other driver for
assistance in resisting the claim, and even though the corporation will be
unable to obtain reimbursement in the event the other driver is uninsured or
there has been a policy breach, or to obtain contribution by way of increased
premiums through forfeiture of the other party’s ‘safe driving’ discount. As
the trial judge recognized, protection against fraudulent claims is only one of
the purposes of the requirement that the claimant show inability to identify
the other driver and owner as a condition of being able to claim under the
section. In my view the overall purpose of the section is to limit the exposure
of the corporation to claims brought by persons who, in the matter of seeking
to identify those responsible for the accident, have done everything they reasonably
could to protect what ordinarily would be their own interests, and which, by
virtue of the section, become the interests of the corporation.

[10]      The corporation’s exposure under the section is
limited to claims brought by those who could not have ascertained the
identity of the parties responsible. It does not, in my view, extend to claims
by those who have chosen not to do so.

[11]      I do not think the words "not
ascertainable" should be strictly interpreted, so as to mean "could
not possibly have been ascertained". I think they are to be interpreted
with reference to subsection (5) so as to mean "could not have been
ascertained had the claimant made all reasonable efforts, having regard to the
claimant’s position, to discover them". Where a person knows that he or
she has been involved in a motor vehicle accident, but refrains even from
recording the licence number of the other vehicle, when that number is visible
and the claimant could, had he or she wished, reasonably have recorded it, such
a claimant must, in my view, find it particularly difficult, and probably
impossible, to establish that he or she made all reasonable efforts to discover
the identity of the owner and driver of that vehicle for the purposes of the
section.

[12]      The test seems to me to be subjective in the sense
that the claimant must know that the vehicle has been in an accident and must
have been in such a position and condition that it would be reasonable for the
claimant to discover and record the appropriate information. But the claimant
cannot be heard to say: "I acted reasonably in not taking the trouble to
find out".

[Emphasis in original.]

[9]            
I do not find, on reflection, that Justice Taylor’s explanation of the
purpose of the statute in that case assists in determining ICBC’s liability in
a case in which the plaintiff has not made reasonable efforts from a subjective
point of view, but where at the same time the court can be satisfied on
evidence from other sources that the plaintiff’s failure to take such steps had
no material effect; satisfied, that is, that there is no reasonable possibility
of ICBC having been prejudiced.  That, in my view, is the situation of the plaintiff
in the present case.

[10]        
The plaintiff reported her injury to ICBC within days of the accident,
but she then refused to meet with an independent adjuster appointed by ICBC to
take a statement from her.  She indicated – this was in May of 2007 – that she
wanted to retain counsel.  She apparently did not retain counsel, however,
until October, approximately five months post-accident.  The only explanation
she gives for this delay was that she was in great pain throughout this
period.  Initially, she says she was on morphine and pretty much bedridden.

[11]        
However, it is the case that within the first weeks of the accident she did
make medical appointments. It seems from the evidence of her friend Ms. Cender,
who testified, that the plaintiff continued to go to church.  Ms. Cender,
who was responsible for transporting the plaintiff to church from Langley where
she was living at the time to the church in Abbotsford, could not remember any
occasion on which the plaintiff missed going to church.

[12]        
The plaintiff moved to Abbotsford in August and she started school at
Columbia Bible College at the beginning of September.  She did not see a doctor
between June 6 and November 19 but on cross-examination she said that this was
because she was able to get around without seeing any doctors.

[13]        
Obviously, the plaintiff was mobile to some extent and certainly able to
instruct counsel well before October 2007, yet through the weeks and months
after the accident the plaintiff did not do so and did nothing whatsoever to
find possible witnesses who might assist in identifying the vehicle.

[14]        
The plaintiff says there was no pedestrian traffic and there were no
other cars around given the time of night. I am doubtful of the reliability of
the plaintiff’s evidence in this regard.  I do not think it is likely that she
had a good opportunity before the accident to observe fully what was happening
outside the bus. The time of night does lead one to think that the presence of
witnesses would have been unlikely, and that may go to the reasonableness of
any lack of effort to find any witnesses.  I will deal with that momentarily.

[15]        
There were other passengers on the bus.  The plaintiff made no effort to
identify those passengers and obtain their evidence, or the evidence of the bus
driver.  There is no indication that her counsel took any such steps either
once retained.  I do not think – either objectively speaking with regard to the
conduct of a reasonable person, or subjectively, that is, taking into account
any particular limitations she faced at the time – that the plaintiff made
reasonable efforts to ascertain the identity of the driver.

[16]        
However, ICBC did within days of the accident have evidence from two
witnesses – passengers on the bus.  The bus driver at the time of the accident
had circulated cards to his passengers asking them for their contact details.  Three
of the five passengers responded.  It is a fair assumption that the two who did
not respond either had seen nothing or for reasons of their own, did not care
to cooperate.  The latter point is relevant in my view because those witnesses
never were identified.  It is theoretically possible that they might have come
forward if the plaintiff had posted signs around the accident scene or placed
advertisements, but this seems far-fetched.  If they did not come forward at
the time of the accident, there is no real reason to believe that they would
have done so voluntarily at a later time.

[17]        
ICBC was able to interview two of the three witnesses who had responded. 
A Ms. Forbes told ICBC that the vehicle was a black Dodge truck that
"whipped around the corner" and was "going pretty fast".  A
Mr. Phillips told ICBC that it was a black truck, that it cut the bus off,
did a 90-degree turn and took off down 64th.

[18]        
We also have the testimony of the bus driver who was in the best
position to see the vehicle.  He says that the vehicle was black.  He had the
impression that it was a pickup but could not swear to that.

[19]        
ICBC was not able to contact the third witness.  Given the evidence of
the others, it is reasonable in my view to conclude that the other witness
would likely have had nothing more to offer.

[20]        
It is, I find, sufficiently established on the evidence that no witness
saw or likely would have been able to see anything that would have assisted in
establishing the identity of the driver.  I therefore find that there is no
reasonable possibility of the driver’s identity having been ascertained on the
basis of the information that was or reasonably ought to have been available.

[21]        
In Leggett, Mr. Justice Taylor said that the purpose of s. 24(5)
is to limit the exposure of ICBC to claims brought by persons who have done
everything they reasonably could  to ascertain the identity of the unknown
driver.  With the greatest of respect, that statement seems to me to be as much
a description of an effect of the statute as its purpose.  That formulation
does nothing to reveal the purpose that lies behind limiting recovery to such
persons.

[22]        
It cannot have been an arbitrary decision on the part of the Legislature
to impose this limitation on the class of persons entitled to bring
unidentified driver claims. And surely, the requirement was not put in place by
the Legislature solely as a test of a claimant’s moral fibre, that is, their
willingness to go to some lengths to uncover information.

[23]        
In my view, it must be the case that the deeper purpose of s. 24(5)
is to ensure that there is no reasonable possibility of ICBC being prejudiced
through a claimant’s inaction, either by being exposed to a fraudulent claim,
or by being deprived of the ability to identify the responsible driver, or for
any other reason. I find no such reasonable possibility of prejudice in the
present case.

[24]        
To look at the statute another way, the requirement of reasonable steps
being taken has both subjective and objective components to it.  The subjective
aspect allows us to take into account a claimant’s personal circumstances.  The
objective aspect allows us to account not only for the objectively reasonable
behaviour of persons in the claimant’s circumstances, but also for the actual
circumstances which were beyond the claimant’s knowledge but which the court
now knows of through other evidence.

[25]        
Given our knowledge of what the witnesses in fact had to say, in my view
it would be manifestly unfair to deny the plaintiff a right of recovery against
ICBC.  I can see no legitimate purpose that would be met in doing so.  I find
the requirements of s. 24(5) to have been satisfied in this case.

[26]        
That brings us to the quantum of damages.  I am not going to detail the
plaintiff’s evidence.  Both counsel summarized it very fairly in their helpful
submissions.

[27]        
It will suffice to say that the plaintiff complains of persisting
debilitating neck and back pain, neck pain primarily, with associated headache
and arm pain; that her symptoms have continued to disrupt her activities of
daily living; that they have prevented her from engaging in recreational
activities and have limited her schooling and her pursuit of gainful
employment.

[28]        
The plaintiff’s general practitioner, Dr. Burns, feels that the
plaintiff has suffered activation of a previously quiescent mild degenerative
disc disease, the extent of which having been shown in various radiological
studies.

[29]        
I was not persuaded by anything Dr. Burns had to say in his reports
or on the witness stand as to the plaintiff’s condition.  I alluded to some of
my concerns with Dr. Burns’ evidence in the course of argument this
morning:

a)    Neither of Dr. Burns’
reports (there are two of them) state a diagnosis.  Dr. Burns did not even
allude to a diagnosis until questioned by me at the conclusion of his evidence;

b)    I see only a
couple of indications in Dr. Burns’ reports that he ever carried out even
a superficial orthopaedic examination of the plaintiff, those being a reference
on September 10, 2008 to pain when she flexes or rotates her neck, and on
October 9, 2008 apparently some assessment of her neck range of motion.

c)     There is
no evidence of any neurological exams ever having been carried out;

d)    There is no
evidence of any exams focussed on making a diagnosis;

e)    Dr. Burns’
treatment of the plaintiff seems largely to have been a matter of listening
sympathetically and encouraging her, organizing referrals to specialists, and
prescribing painkillers.

[30]        
After he received Dr. Grover, the orthopaedic surgeon’s report of
March 15, 2011, Dr. Burns reviewed the report with the plaintiff on April
21, 2011 and he encouraged her to realize that she has chronic pain syndrome. 
More than a year later, in June 2012, he initiated a referral to a pain
management clinic.  The delay was not explained.  He has also recently made a
referral to a psychiatrist.

[31]        
Dr. Grover saw the plaintiff on March 5, 2011.  The diagnosis he
records in his report was that the plaintiff had initially sustained a Grade 2
whiplash-associated disorder.  He felt that she had a significant degree of
disability, that is, as expressed by her subjectively.  He did not identify any
real objective signs of impairment due to any physiological mechanism.  He
differentiated in his evidence between disability being subjective and
impairment being objective.

[32]        
Given the plaintiff’s pre-existing arthritis, Dr. Grover believes
that she has, to some extent, suffered activation of symptoms of a previously
asymptomatic arthritic disease in her cervical and lumbar spines.  However,
this was simply an inference that he drew from her reported pain and from the
radiographic studies.

[33]        
In addition to this, Dr. Grover, in the course of his examination
of the plaintiff, identified seven out of ten positive Waddell’s signs, that
is, indications of pain or pain behaviour with no organic basis.  These included
exaggerated tenderness; a non-anatomical distribution of pain; and, an
inconsistency between reported restrictions in range of motion, and what he
observed passively when the plaintiff was not being examined.

[34]        
Dr. Grover, in his evidence, described Waddell’s signs as being a
behavioural, not physiological, response to an examination.  There are, he
described, many non-physiological reasons for such pain behaviour.  Psychosocial
stressors and work avoidance can be factors.  He felt that her pain behaviour
however was very likely subconscious, i.e. not intentional.

[35]        
Dr. Grover acknowledged in cross-examination, though, that it was
impossible to say when her degenerative arthritis would most probably have
become symptomatic eventually – in any event, that is – whether or not there
had been an accident.  Dr. Grover did not conclude that the underlying
arthritis itself had been worsened or accelerated because of the accident.

[36]        
Dr. Sovio, who is also an orthopaedic surgeon, examined the
plaintiff on behalf of the defence in May 2012.  Dr. Sovio does not feel
that any of the plaintiff’s current complaints and disability can be explained
on a physical basis.  Dr. Sovio, too, found significant positive Waddell’s
signs on his examination.  He does not feel that there is anything to be gained
in terms of giving the plaintiff medical attention, from a physical standpoint. 
He refrained from attempting any diagnosis beyond the scope of his expertise as
an orthopaedic surgeon.

[37]        
Dr. Sovio did testify that he was a bit confused by Dr. Grover’s
attribution of some degree of the plaintiff’s complaints to her arthritis.  In Dr. Sovio’s
view, the generalized nature of her pain complaints and the Waddell’s signs
rule out any contribution being made by the underlying degenerative condition.

[38]        
The testimony of Dr. Sovio and Dr. Grover as to the presence
of the Waddell’s signs and their significance has led me to a consideration of
the plaintiff’s social or psychosocial background.

[39]        
Unfortunately, I do not have the benefit of a psychological or
psychiatric assessment.  I am, however, mindful of the Court of Appeal having
expressed some skepticism as to the likelihood of medical practitioners being
able to answer, as matters of expert opinion, the ultimate questions on which
cases involving persistent psychological symptoms associated with physical injuries
often turn: see Justice Lambert’s summary, in Yoshikawa v. Yu (1996), 21
B.C.L.R. (3d) 318 (C.A) at para. 9, of the reasons of Justice Taylor in Maslen
v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) at 134 – 137. In the
present case, it falls to the court to assess all of the evidence holistically.

[40]        
The plaintiff had a traumatic childhood in what she called a “biker
family”.  Her parents did not have a stable relationship; her father was a drug
user; she suffered sexual abuse; she was in foster care from age 14; she left
school early and became a teenaged mother.

[41]        
She moved from Manitoba to British Columbia with her sister and her
young son at the age of 18.  She soon had another son, by another man.  She has
had only some limited financial support from her boys’ fathers; they have had
nothing to do with their children.  She has had little in the way of other
family support. She has subsided mostly on child support and/or social
assistance from the age of 18.  She has never had steady, long-term, full-time
employment.  She has had some sporadic part-time work over the years, but from
the evidence I have, has never made as much as $5,000 in a year from
employment.  She has had trouble holding on to jobs.

[42]        
On top of all of this, her elder son has had serious drug use issues
since the age of 13.  This, she testified, has caused her considerable stress,
leading to two or three applications having been made over the years prior to
the accident to be awarded disability benefits.

[43]        
What all of this background information indicates to me is that there is
a very significant potential in this case for what is called secondary gain
being a factor in the plaintiff’s presentation.  That is to say that, perhaps
unconsciously, the plaintiff has become focussed or fixated on the accident so
as to produce symptoms that might provide her with financial benefit and enable
her to avoid employment, for example.

[44]        
I also cannot overlook the possibility that the plaintiff may in some
sense benefit emotionally from being the centre of attention or from now being
someone who now needs to be cared for rather than someone who has from a very
young age been a care provider.  I am mindful that I am in no position to
diagnose the plaintiff, but I must assess the evidence.

[45]        
I accept what Dr. Sovio says about the plaintiff’s pain complaints
and pain behaviour not likely being connected to the underlying degenerative
disease.  This leaves the only possible explanation for the plaintiff’s
condition on the evidence being a behavioural mechanism or phenomenon.

[46]        
I find that this case is most appropriately dealt with purely as a case
of chronic pain syndrome with some initial whiplash type injury of moderate
duration having been present after the accident.

[47]        
The principles of assessment of such injuries as expressed by the Court
of Appeal in Maslan and the summary of that decision’s principles by
Lambert J.A. in Yoshikawa are to guide us.  I would also in particular
adopt Lambert J.A.’s further comments on Maslan as found at paras. 24
and 28 through 33 of his decision.

[48]        
I find that the plaintiff’s symptoms in the present case are
predominantly the product of an unconscious fixation on the injuries she suffered
in the accident. To that extent, they are compensable.  The pain she feels is
real and she would not be in this position but for the accident.

[49]        
I do also find, however, that there has likely been on top of that some
degree of conscious exaggeration or acting out on the plaintiff’s part. I
largely agree with the concerns raised by the defence as to the plaintiff’s
overall credibility  Chief amongst my concerns are the following:

a)    the fact that
she complained to Drs. Grover and Sovio of back pain, but only ever complained
to Dr. Burns of neck pain;

b)    her attributing,
in conversations with her doctors, the non-completion of her studies at Trinity
Western University and Columbia Bible College to her injuries, when it emerged
on cross-examination that she also had financial issues that had stood in the
way of her studies continuing;

c)     contrary
to her testimony of having failed courses at Columbia Bible College, that she
in fact had good grades;

d)    that she was
able to complete a year of fashion design studies with good grades;

e)    and, that she
was not forthright in her examination-in-chief as to her non-attendance on any
doctors during the June to November 2007 time period.

[50]        
Further, with respect to the assessment of the plaintiff’s non-pecuniary
damages, I bear in mind two considerations:

·      
First, I have no reason on the evidence to believe that the
plaintiff will not receive some significant benefit from the pain clinic and
from the psychiatric treatment that she has been referred to, once these are
underway;

·      
Second, in my view there is every reason to think that financial
gain is providing a significant unconscious motive for the plaintiff.  That
being the case, it can be fairly anticipated that the plaintiff will respond
more positively to treatment now that the litigation has concluded.

[51]        
I have been assisted by the submissions of counsel on the case law on
the assessment of non-pecuniary damages.  I assess this plaintiff’s
non-pecuniary damages at $40,000.

[52]        
The assessment of the past and future earning capacity losses is
difficult due to the plaintiff’s work history as I have described.  I am also
mindful that Dr. Grover has not assessed the plaintiff as being fully
disabled.  She has and for some time has had some residual employability.  I
assess her past income loss at $5,000.

[53]        
There is in my view here a real possibility of a modest, very modest,
loss of future earning capacity.  Bearing in mind the relevant contingencies, I
assess her future earning capacity loss at a further $10,000, on the basis of
loss of a capital asset.  I emphasize that these are awards for the loss of earning
capacity.  In my view, the availability of welfare benefits does not affect the
valuation of these claims.

[54]        
Special damages have been claimed in the amount of $7,909.65.  I
disallow the claim for vitamin purchases at $88.59; it is not shown to have
been related to the plaintiff’s injuries.

[55]        
The plaintiff has also included a claim for the purchase of an
elliptical trainer at $539.93.  The plaintiff says this was suggested by a
physiotherapist, but there is no other evidence of this.  The plaintiff has
also testified that she is and has been unable to use the machine for more than
a few minutes at a time, as it greatly exacerbates her neck pain.  In my view,
it would have made far more sense for the plaintiff to be attempting to walk
and if able, to walk vigorously for exercise, and then perhaps to try out a
similar machine at a local recreation centre before incurring the expense of a
purchase.  That claim is disallowed.

[56]        
The remaining items were not challenged on cross-examination.  My
arithmetic is subject to correction and the special damages are to be allowed
in the amount of $7,281.13.

[57]        
Finally, I allow a modest amount for the purchase of future medications
of $200.00.

[58]        
In summary, the award is as follows:

[59]        
The plaintiff will have judgment in that amount.

[60]        
Any further submissions?

[61]        
MS. POULIN: No.

[62]        
THE COURT: No, nothing?  Costs?

[63]        
MR. HARGRAVE: There are no offers that affect – are
affected.

[64]        
THE COURT: All right then.  Costs at Scale B?

[65]        
MR. HARGRAVE: Scale B.

[66]        
THE COURT: So ordered.

“A. Saunders J.”