IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130131

Docket: M138242

Registry:
New Westminster

Between:

Kristy
Christoffersen

Plaintiff

And

Samuel Howarth

Defendant

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

Introduction

[1]            
This action involves a rear-end collision that occurred on July 13,
2010.  Liability is not in issue.

[2]            
The defendant’s insurer, Insurance Corporation of British Columbia
(“ICBC”), has classified the collision as a “low velocity impact case”.  Damage
to the vehicles was minor.  Nevertheless, the plaintiff says that she suffered
unrelenting pain that she attributes to the collision.  The issue for
determination is whether she did.

Evidence at Trial

The plaintiff’s case

a)    The
Plaintiff

[3]            
The Plaintiff is 25 years old.  At the time of the collision she was 22
years old.  She was working as a receptionist.  She was also an avid sports
enthusiast.  After the collision, she has continued to work and maintain an
active lifestyle, although her injuries continue to cause her pain in all
aspects of her life.  In August, 2011, she left her receptionist position to
work as a project coordinator, which involves sitting at a desk at least 8
hours per day.  She continues to regularly play hockey and softball, ski, jog
and work out at the gym.

[4]            
On July 13, 2010, at approximately 6:45 pm, the plaintiff was heading home
from work, driving her 2000 Volkswagen Beetle southbound along 208^th
Avenue.  There was heavy traffic.  She was wearing her seat belt and her
headrest was adjusted for her height.  She was alone in the vehicle.

[5]            
When she reached the overpass above Highway 1, she came to a full stop
because the traffic ahead of her had stopped.  Her foot was on the brake pedal.

[6]            
The defendant’s vehicle suddenly struck her vehicle from behind.  She
did not expect the impact, which she described as “fast”.  Her body moved
forward and was caught by the seat belt which then moved her backward.

[7]            
Neither the police nor any other emergency personnel attended the
scene.  She had no symptoms of any injury while at the scene, other than
heartburn.

[8]            
Later that evening, she attended a medical clinic because the right side
of her neck as well as her mid to lower back hurt.  The physician who examined
her prescribed muscle relaxants.  She does not remember whether or not she
filled the prescription.  There is no indication in her PharmaNet patient
record that she did.

[9]            
Three days later, on July 16, 2010, the plaintiff went to her family
doctor, Dr. Morgan, complaining of pain to the right side of her neck that
radiated down to her shoulder blades.  She also complained of heartburn, pain
in her mid to lower back and headaches.  She has no explanation for why there
is no mention of her headaches in Dr. Morgan’s clinical records.  Nevertheless,
she was adamant in her testimony that she did report both her headaches and
their severity to him.

[10]        
Dr. Morgan prescribed an active program of rehabilitation exercises and
referred the plaintiff to a physiotherapist.

[11]        
On July 26, 2010, the plaintiff attended her first physiotherapy
appointment.  She reported to the physiotherapist that, on the evening of the
accident, her neck stiffened and became sore.  She said she was experiencing
burning between her shoulders.  She also reported that she was suffering from frequent
headaches.

[12]        
The plaintiff testified that she continues to suffer from pain in her
neck, shoulder and mid to lower back.  She testified that a “lump” or “knot” has
developed in the right side of her neck that is the size of a small baseball
which aches constantly.  The pain increases during and after activities.  Dr.
Morgan first mentions this phenomenon in his clinical record dated January 11,
2011.

[13]        
Within the last year or so, the lower back pain has begun to radiate to
her hips.  She testified that she showed Dr. Morgan where her lower back and
hips were painful.  There was no mention of hip pain in any of Dr. Morgan’s
clinical notes.

[14]        
She described her lower back pain as constant.  It gets worse during
work days when she sits for long periods of time.  She attributes the pain in
her hips to her sitting posture.  She slouches in her chair to minimize her
back pain.

[15]        
The plaintiff testified that she experienced heartburn three to five
times a day for approximately one year after the accident.  Each incident
lasted between 10 and 20 minutes.  She continues to suffer heartburn but now
only once in every few weeks.  She finds that stretching helps relieve the
heartburn.

[16]        
The plaintiff suffers from headaches three to five times a day, which
she said was usually associated with her neck pain.  Each headache lasts
between 10 and 20 minutes.  They tend to worsen after sports and exercise.

[17]        
As a result of her pain, the plaintiff has trouble sleeping.  She is
awakened three to five times each night because of her pain.  She finds that
stretching and adjusting her pillow provide some relief.  She is usually able
to go back to sleep in about 20 minutes.  She did not report her sleeping
problems to Dr. Morgan because he was well aware of her pain and the problems
with her neck and back.

[18]        
The plaintiff’s lifestyle has been affected by the pain she has
experienced.  She fatigues easily and is in pain after playing hockey, skiing
or working out at the gym.  She now has difficulty throwing a softball.  Blow
drying her hair, grocery shopping, household chores and teeth brushing are all
activities that aggravate her neck and shoulder pain.

[19]        
She did not sustain any injuries to her neck, shoulders or back either
prior or subsequent to the collision.

[20]        
In an effort to relieve her symptoms, the plaintiff attended various
physiotherapy sessions and does isometric neck and other prescribed exercises
every day.  She plans to continue with physiotherapy.

b)    Dr.
Brian Morgan

[21]        
Dr. Morgan has been the plaintiff’s family doctor for the past 13 years
(since the plaintiff was 12 years old).  He gave both factual and opinion
evidence regarding the plaintiff’s injuries.  He was qualified to do so.

[22]        
Dr. Morgan first saw the plaintiff after the collision on July 16,
2010.  Her neck flexion was 70% of normal.  Her neck extension was 80% of
normal.  Her neck rotation was normal.  She had mild tenderness in the mid
belly of the trapezius bilaterally.  He assessed her condition as a mild soft
tissue cervical strain caused by the collision that occurred three days
earlier.  He sent the plaintiff to physiotherapy for an active program of
rehabilitation exercises.  He also provided the plaintiff with a list of
isometric neck exercises to perform.

[23]        
Dr. Morgan saw the plaintiff again on August 18, 2010.  At this time she
complained of neck and lower back pain.  Of the two, the lower back pain was
worse.  He found that she had a full range of motion in the lumbar spine with
some tenderness when her back was extended.

[24]        
Dr. Morgan next saw the plaintiff on October 21, 2010.  She reported
intermittent tightness in the neck and lower back.  He found there was active
range of motion in her neck with some local tenderness in the mid body of the trapezius
bilaterally.  Her lumbar spine showed full flexion and extension.  He assessed
her condition as a persistent mild soft tissue injury.

[25]        
He saw the plaintiff again almost three months later on January 11,
2011, at which time she reported a daily knot in the right side of her neck as
well as some lower lumbar pain.  She showed full range of motion in her neck
with pain at the extremes of motion on lateral bending to the left.  He found
that she was showing slow improvement and he encouraged her to continue all
activities and to expect steady albeit slow improvement.

[26]        
On February 11, 2011, the plaintiff again saw Dr. Morgan and reported
that the pain in the right side of her neck was worse.  He found full range of
motion in the neck, with mild tenderness in the trapezius.

[27]        
The plaintiff’s next visit to Dr. Morgan was on June 8, 2011.  She
reported that a lump develops in her neck when she works out at the gym.  She
also reported experiencing pain when sitting at her desk.  He found a
“prominence” in the soft tissue on the right side of her neck and that this
area of the muscle was in spasm.  Dr. Morgan agreed on cross-examination that
the presence of muscle spasms was generally consistent with both whiplash and
muscle overuse after vigorous activity such as playing hockey.  However, he
pointed out that the chronic spasms experienced by the plaintiff were not
consistent with muscle overuse.  In Dr. Morgan’s opinion, the plaintiff’s
dedication to a good fitness regime made it less likely that the chronic pain
she was experiencing was due to hockey.

[28]        
The plaintiff’s next relevant visit to Dr. Morgan was on May 2, 2012. 
She reported continuing pain in her neck and lower back.  He found full range
of motion in her neck, some tenderness along the region of the interspinous
ligament as well as spasm in the erector spinae muscles.  He prescribed
physiotherapy.

[29]        
On June 7, 2012, the plaintiff again went to see Dr. Morgan.  She was
frustrated that her neck pain was not getting better.  He found some spasm in
the right sided trapezius.  He reassured her that her symptoms would improve
over time.

[30]        
On June 21, 2012, the plaintiff advised Dr. Morgan that sitting at her work
desk made her lower back ache and that workouts at the gym resulted in pain in
her shoulder and neck.

[31]        
Generally, despite having over 2000 patients under his care, Dr. Morgan
clearly recalled the plaintiff in his office on various occasions in
significant distress due to pain.

[32]        
Throughout his consultations with the plaintiff, Dr. Morgan encouraged her
to remain active and to play sports.

[33]        
He also testified regarding his note taking practice.  Although he
usually records anything of significance reported to him by a patient, it is
possible that the plaintiff mentioned her headaches during her description of
her neck and back pain symptoms without him making a record of it.

[34]        
Dr. Morgan prepared a medical/legal report dated August 20, 2012.  In
his opinion, using a 2007 neck pain task force classification system for neck
pain severe enough to cause patients to seek care, the plaintiff suffered a Grade
1 injury (no signs of major pathology and little interference with daily
activities) that subsequently developed into more than a Grade 1 injury but
less than a Grade 2 injury (no signs of major pathology but may impact daily
activities) due to her spasms.  She also suffered a cervical strain, with intermittent
neck and lower back discomfort caused by continued facet joint inflammation
with associated myofascial (soft tissue) pain.  In other words, the plaintiff
suffered and continues to suffer from a mild whiplash injury.

[35]        
In Dr. Morgan’s opinion, the plaintiff’s injuries were caused by the
forward acceleration of her body whilst her head and upper spinal elements were
snapped backwards during the collision.  The pain she has experienced during
her various sporting and other activities are the result of those collision
injuries.

[36]        
Based upon Dr. Morgan’s experience, the extent of injury suffered during
a rear-end collision is not entirely dependent on the force of the crash.

[37]        
Dr. Morgan testified that, in his opinion, the plaintiff would have
benefitted from attending more physiotherapy sessions within the first three
months post-accident than the two sessions that she did attend.

The Defendant’s Case

[38]        
The defendant called two witnesses:

a)    the
Defendant

[39]        
The defendant testified that he was driving home from work when the
accident occurred.  The traffic was “relatively heavy” and was “bumper to
bumper”.  He was proceeding slowly – “rolling speed”.  He glanced to his left,
turned his eyes forward and realized he was going to collide with the
plaintiff’s vehicle.  He braked and braced his arms before the impact
occurred.  His body did not move forward upon impact.

[40]        
He described the force of the impact as “very minor”.  However, he
agreed on cross examination that the impact caused the plaintiff’s vehicle to
move forward slightly.  He was not injured although he admitted he was a little
shaken up.  He agreed that the plaintiff appeared to be shaken up as well.

[41]        
The damage to the plaintiff’s vehicle, as observed by him, was limited
to an imprint of his front license plate holder on the plaintiff’s rear
bumper.  There was slight damage to the front bumper of his vehicle.  He did
not have that damage repaired.

b)    Jeff
Morris

[42]        
Mr. Morris is an ICBC estimator with over 24 years experience in that
capacity.  He inspected the plaintiff’s vehicle at the ICBC claims centre.

[43]        
The rear bumper assembly of the plaintiff’s vehicle consisted of three
parts: the outer bumper cover made of rubber; a reinforcement bar bolted to the
vehicle’s body; and a shock absorber between the two.

[44]        
He agreed on cross-examination that the purpose of the shock absorber is
to absorb energy upon impact.

[45]        
The only damage to the plaintiff’s vehicle that he observed was an
imprint of a license plate bracket in the rubber bumper cover.  He described
the damage as “cosmetic”.

[46]        
ICBC paid a total of $588.70 to repair the plaintiff’s vehicle.

c)     Steve
Wood

[48]        
Mr. Wood is also an ICBC estimator.  He inspected the defendant’s vehicle.

[49]        
The front bumper was made of plastic and was equipped with an internal
shock absorber.  He did not examine the absorber.

[50]        
The front license plate bracket, which surrounds the license plate, was
made of plastic.

[51]        
The only damage he observed was cracked paint on the front bumper cover
and a slight scuff mark in the paint on the vehicle’s hood.  He described the
damage as cosmetic.

[52]        
He estimated that the damage to the plaintiff’s vehicle would cost
$641.31 to repair.

Analysis

[53]        
The defendant takes the position that on the basis of the objective fact
that there was minimal damage to the vehicles, the Court must exercise caution
in accepting subjective injury complaints.  It must examine all of the evidence
carefully before concluding that the plaintiff has met the onus of
establishing, beyond the balance of probabilities, that she was injured as a
result of the collision: Price v. Kostryba (1986), 70 B.C.L.R.
397 (S.C.) at 398 – 399.  Defendant’s counsel submits that the collision impact
was so negligible that plaintiff could not have suffered any injury. 
Alternatively, she argues that the plaintiff has either exaggerated her pain or
that it is attributable to activities unrelated to the accident.

[54]        
The defendant urges me to draw what she described as the common sense
inference that the plaintiff could not have been injured in such a minor
collision.  Simply put, the defendant argues that the minimal damage speaks for
itself and that no other evidence is necessary to show the plaintiff did not
sustain any injury.

[55]        
This approach has been tried many times before.  It was commented upon
by Mr. Justice Thackray (as he then was) in Gordon v. Palmer, (1993),
78 B.C.L.R. (2d) 236 (S.C.) at 237 (excerpted in full in 1993 CanLII 1318):

I do not subscribe to the view
that if there is no motor vehicle damage then there is no injury.  This is a
philosophy that the Insurance Corporation of British Columbia may follow, but
it has no application in court.  It is not a legal principle of which I am
aware and I have never heard it endorsed as a medical principle.

Significant injuries can be
caused by the most casual of slips and falls.  Conversely, accidents causing
extensive property damage may leave those involved unscathed.  The presence and
extent of injuries are to be determined on the basis of evidence given in
court.  Objectivity is thus preserved and the public does not have to concern
itself with extraneous philosophies that some would impose on the judicial
process.

In the case at bar the limited
amount of motor vehicle damage is not, in my opinion, the yardstick by which to
measure the extent of the injuries suffered by the plaintiff.  No evidence was
called to substantiate the theory of ‘no physical damage: no injury’.  The
plaintiff alleged serious back injuries and resultant damages.  The extent will
be decided on the evidence.

[56]        
In Hoy v. Harvey, 2012 BCSC 1076, Madam Justice
Fitzpatrick wrote:

[44] The defence submits that
Mr. Hoy could not have sustained his claimed injuries from such a minor
impact. The defendants rely on the comments made by the Court in Sinclair v.
Norman, 1996 CarswellBC 1761 (Prov. Ct.) where the Court dismissed the
claim where there had only been a “light touch” or “nudge”:

[16]      Common sense will tell me that
surely there has to be a threshold of impact for any soft tissue injury. Given
the evidence in this case of a light touch of the independent witness or
imperceptible nudge of the Defendant. I cannot on balance conclude that the
Claimant has the causation established necessary to find in her favour.

[45]  
     Evidence of the damage caused and the impact generally can
be one of many factors considered by the Court in the determination of what
injuries, if any, were caused by the accident. In Miller v. Darwel, 2005 BCSC 759 (CanLII), 2005 BCSC 759, the
Court stated:

[9]        On appeal, the
claimant argues that the trial judge erred in considering the force of the
impact of the collision on the issue of liability. In support of this position
the claimant relies upon the case of Gordon v. Palmer 1993 CanLII 1318 (BC SC), (1993), 78 B.C.L.R.
(2d) 236 (B.C.S.C.) in which Thackray J. (as he then was) said at para. 4:

I do not subscribe to the view that if there is no motor
vehicle damage then there is no injury. This is a philosophy that the Insurance
Corporation of British Columbia may follow, but it has not application in
court. It is not a legal principle of which I am aware and I have never heard
it endorsed as a medical principle.

[10]      As other judges who
have considered this passage have already said, these words should not be taken
to mean that the extent of damage in a collision is irrelevant to causation. It
is some evidence of impact, which is not logically unrelated to injury.

[11]      I agree with Taylor, J.
in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.),
when he said at para. 7:

Such evidence is therefore relevant with respect to what
injuries resulted from the impact and to the issue of the credibility of the
plaintiff who asserts such injuries, by reason of the fact that such injuries
often do not have objective symptoms. Such evidence may, depending upon the
extent of the property damage, either contradict or corroborate evidence of
personal injury.

[57]        
I echo these sentiments.  Causation and the extent of any injury are to
be decided on the whole of the evidence before me.

[58]        
In order to accept the defendant’s argument, I would have to completely
disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff
was injured as a result of the collision.  I am not prepared to do so.  I found
each to be credible, honest and forthright.  Their evidence was uncontroverted
by the defendant.  At most, the plaintiff’s evidence was shown on cross
examination to have been exaggerated in a few minor respects.

[59]        
The defendant chose not to lead any medical evidence or opinion to
contradict that of Dr. Morgan.  No evidence was led by the defendant regarding
the amount of force that the plaintiff’s body was subjected to during the
collision or how the shock absorbers built into the vehicles’ bumpers affected
the damage that otherwise would have been sustained.  In my view, such evidence
was required if the defendant wished to argue that the plaintiff was not
injured by this collision.

[60]        
I accept that the collision was relatively minor.  However, even a low
impact collision can cause injury: Lubick v. Mei, 2008 BCSC 555
at paras. 5-6.  Here, the evidence clearly establishes that this low velocity
impact was sufficient to move the plaintiff’s vehicle forward from a completely
stopped position even though the plaintiff had her foot on the brake pedal.

[61]        
Causation has been established by the plaintiff.

[62]        
I accept Dr. Morgan’s opinion that the plaintiff suffered a mild
whiplash injury and that she continues to suffer from intermittent neck and
lower back discomfort which represents continued facet joint inflammation with
associated soft tissue pain.  The symptoms of her injury and the frequency of
her pain are genuine.

[63]        
I also find that she was a healthy, athletic young girl of 22 who was in
very good physical condition at the time of the collision.  Her pain cannot be
attributed to any other cause.

[64]        
In Dr. Morgan’s opinion, the plaintiff has an excellent prognosis for a
full recovery due to her commitment to physical activity.

[65]        
The plaintiff did not attend as many physiotherapy sessions as Dr.
Morgan had suggested.  In his opinion, she would have benefitted from doing
so.  Her reason for not doing so was that she was diligently maintaining the
rigorous exercise regime prescribed by both Dr. Morgan and the physiotherapists. 
She was and continues to be highly motivated to recover from her injuries.  I
find that, in all of the circumstances, the steps she took and continues to
take to rehabilitate herself and mitigate her loss were and are reasonable.

[66]        
The plaintiff argues that she is entitled to non-pecuniary damages in
the range of $35,000 to $40,000, relying on the following decisions of this
court: Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053
($40,000); White v. Stonestreet, 2006 BCSC 801 ($35,000); Lane
v. Ford Credit Canada Leasing Limited et al, 2003 BCSC 701 ($40,000); Verhnjak
v. Papa, 2005 BCSC 1129 ($40,000); Gorosh v. Bowen et al,
2005 BCSC 917 ($40,000); Klipenstein v. Parmar et al, 2003 BCSC
1138 ($40,000); Kroeker v. Jansen, 1995 CanLII 761 ($50,000). 
Each of these decisions involved injuries of similar degree and duration to the
plaintiff’s.

[67]        
The defendant relies on the following decisions: Brar v. Kaur,
2010 BCSC 1220 ($4,000); Lee v. Dueck, 2012 BCSC 530 ($5,000); Dolha
v. Heft, 2011 BCSC 737 ($7,000). Brar involved a plaintiff
whose injury was fully resolved within six months.  In Lee, the
plaintiff’s ankle injury was resolved within 10 days and her wrist injury
within seven months.  She had continued to suffer from chronic, intermittent
and short lived pain but the court held this pain was only triggered by heavy
lifting and repeated twisting, which she was able to avoid.  In Dolha,
the plaintiff’s injuries were resolved entirely within six to nine months and
she had no residual effects.

[68]        
Here, over two and a half years after the accident, the plaintiff has
still not fully recovered from her injuries, although the prognosis for her recovery
is good.

[69]        
Having considered these decisions and the injuries suffered by the
plaintiff, which are not fully resolved, I find that an award of $35,000 for
non-pecuniary damages is appropriate.

Conclusion

[70]        
I award the plaintiff non-pecuniary damages in the amount of $35,000.

[71]        
The parties agreed that the plaintiff is entitled to special damages in
the amount of $167.00 in respect of physiotherapy treatments between July 10,
2010 and February 28, 2011.  In addition, the defendant agreed that, the
plaintiff is entitled to an additional $249.40 in respect of physiotherapy
treatments between May 17, 2012 and September 24, 2012 if the plaintiff’s
symptoms after May 2012 were causally connected to the collision.  I so find.

[72]        
Accordingly, the plaintiff is entitled to judgment in the following
amounts:

[73]        
The plaintiff is entitled to her costs at scale B.

“Weatherill J.”