IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130205

Docket: M072679

Registry:
Vancouver

Between:

Adel Berenjian

Plaintiff

And

Andrew Primus and
John Paul Primus

Defendants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]            
The plaintiff Mr. Berenjian brings this action to recover damages
from the driver of an automobile which struck him and, he says, injured him.

Background Circumstances

[2]            
At time of trial, Mr. Berenjian was 54 years of age; he was 48
years old when the accident occurred.

[3]            
At, or shortly after, 6:00 p.m. on April 5, 2006, the plaintiff was on
foot and travelling northbound on the sidewalk adjacent to Taylor Way in West
Vancouver. He arrived at the intersection where Keith Road intersects with
Taylor Way. He began to cross Keith Road, walking in the marked crosswalk.

[4]            
An automobile owned by the defendant John Paul Primus and driven by his
son Andrew Primus was at the corner. Andrew Primus was in the process of
turning right from Keith Road onto Taylor Way, with the intention of heading
southbound. The light was green for traffic travelling northbound and
southbound on Taylor Way and was red for traffic on Keith Road. Nevertheless,
Andrew Primus was lawfully permitted to turn right on the red light, so long as
that turn could be made in safety. In fact, in the matter at bar, it is
apparent that Andrew Primus moved his vehicle forward, into that right turn, at
a time when the plaintiff was in front of the vehicle. Contact was made.

[5]            
Following the collision, Andrew Primus pulled his vehicle over and
spoke with the plaintiff. The plaintiff pulled himself together and after some
time had passed was transported to his nearby home by two persons who were
witnesses to the event.

[6]            
The plaintiff claims that he sustained injuries to his left arm and left
knee as well as to his neck and back.

[7]            
He brings this action to recover damages for the injuries and the effect
they had upon him.

Positions of the Parties

[8]            
The plaintiff says that he was lawfully in the intersection, crossing on
a light displaying a walk sign, when he was struck. He says that he sustained a
number of injuries; some of those resolved quickly, others took some
considerable time to resolve. He says that those injuries caused him pain and
suffering, and interfered with a number of his ordinary activities.

[9]            
He seeks to recover damages accordingly.

[10]        
The defendants concede that the automobile struck the plaintiff in the
course of negotiating the right turn. The defendants challenges the proposition
that the plaintiff was in the intersection on a walk signal, and says as well
that the plaintiff was careless in the manner in which he attempted to cross
the street. The defendants also say that the extent of the injuries was minor,
so minor as to amount to virtually nothing. He disputes the plaintiff’s
contention that the injuries were of any moment or that they actually caused
him any pain and suffering or impacted upon his ordinary activities.

[11]        
In short, the defendants say that the plaintiff was contributorily
negligent in the occurrence of the collision and that he has not established a
basis that would entitle him to receive any damages other than a most minimal
award.

Discussion

[12]        
There were three witnesses at trial able to testify with respect to the
manner in which the collision occurred: the plaintiff, the defendant Andrew
Primus, and a person who was in another automobile at the scene and who observed
the events, Ms. Williams.

[13]        
The plaintiff has testified about his injuries; he also adduces in
support the evidence of two medical professionals, a general practitioner and a
chiropractor who treated him.

[14]        
In advancing their position, the defendants rely upon their own evidence
as well as that of an ICBC adjuster who had dealings with the plaintiff after
the event, and the testimony of Dr. Leith, an orthopaedic surgeon. The
defendants have also tendered video evidence of certain activities of the
plaintiff in the time period following the event.

[15]        
I propose to deal with the matter under three separate headings:

(a)      collision and liability;

(b)      injuries and consequences;

(c)      damages.

(a) Collision and Liability

[16]        
The evidence establishes to my satisfaction that, at the time the
automobile struck the plaintiff, he (the plaintiff) was in the crosswalk at the
intersection. It is also beyond dispute that the light for northbound and
southbound vehicular traffic on Taylor Way was green.

[17]        
There was controversy at trial as to whether the plaintiff stepped into
the intersection when he had the benefit of a walk light for his crossing, or
whether the light was stale and a “don’t walk” signal was being displayed.

[18]        
The only direct evidence on that point comes from the plaintiff. He says
that when he stepped off the sidewalk, there was a walk signal displayed. Based
upon some concerns I have of the complete accuracy of his description of events
at the intersection, including the presence of other vehicles and pedestrians,
I am not without some reservations as to the correctness of his description and
particularly with respect to the signal. Nevertheless, the other witnesses are
not in a position to dispute that there was a walk signal displayed; the most
that can be said is that the state of the light at that intersection was
probably somewhat stale at the time. I should note that there is no evidence
before this Court that would indicate whether the walk signal at the
intersection is triggered by the action of a pedestrian wishing to cross the
street, or whether the walk signal is displayed as part of the green light
cycle for north-south traffic.

[19]        
In the circumstances, recognizing that the standard to be met is one of
a balance of probabilities, I conclude it is more likely than not that a walk
signal was displayed when the plaintiff stepped off the sidewalk and into the
crosswalk.

[20]        
I conclude as well that the plaintiff was inside the marked crosswalk
area at the time contact was made by the defendants’ automobile.

[21]        
The defence also submits that there is reason to conclude that the
plaintiff was not paying sufficient attention to other traffic at the time he
was crossing Keith Road. That contention is based primarily upon video evidence
which has been tendered, showing the plaintiff running from his place of work
in downtown Vancouver to his residence in West Vancouver. The defendants note
that he appears to ordinarily run with some sort of a jacket hood on his head
and that compromises his ability to see all his surroundings, and, as well,
that he appears in the videos to have a tendency to cross roads even though no
walk signal is displayed.

[22]        
I have taken those factors into consideration, but cannot find a basis
to extrapolate from those rather general suggestions to a conclusion that the
plaintiff was not taking sufficient care as he crossed the street.

[23]        
The core submission advanced by the defendants with respect to
liability, as set out in their submissions, is as follows:

Mr. Berenjian breached the standard of care of a
reasonable person and did not pay sufficient attention to see the danger and
crossed without adequately looking. Certainly, he admits failing to look to his
left but that appears as more as [sic] an example of general carelessness on
the plaintiff’s part than the relevant breach in the case at hand: here, the
Primus vehicle was directly ahead of the plaintiff and bright yellow to boot.
It was there to be seen but the plaintiff failed to see it.

The plaintiff proceeded
presumably at a fast walk or slow jog in front of the defendant’s vehicle and,
only too late, noticed it. He took some evasive steps, but, by this time, it
was too late. He had already put himself in front of a vehicle that was moving
forward with a driver not looking ahead.

[24]        
The plaintiff’s position is that he was lawfully in an intersection and
that the defendant driver was turning right in the face of a red light. He contends
that a driver in such a situation has a clear statutory duty not to move into
his turn until it can be done in safety.

[25]        
The defendants agree that the driver has a greater duty of care than the
pedestrian, but urge the Court to find contributory negligence on the part of
the plaintiff, something in the order of 40%.

[26]        
In my view, the defendants’ position cannot succeed.

[27]        
The relevant statutory provisions from the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, are as follows:

Pedestrian controls

132  (1) When the word "walk" or an outline of a
walking person is exhibited at an intersection by a pedestrian traffic control
signal, a pedestrian may proceed across the roadway in the direction of the
signal in a marked or unmarked crosswalk and has the right of way over all
vehicles in the intersection or any adjacent crosswalk.

(2) When the word "walk" or an outline of a walking
person is exhibited at a place other than an intersection by a pedestrian
traffic control signal, a pedestrian may proceed across the roadway in the
direction of the signal and has the right of way over all vehicles.

(3) When the word "wait", the words "don’t
walk" or an outline of a raised hand are exhibited at an intersection or
at a place other than an intersection by a pedestrian traffic control signal,

(a) a pedestrian must not enter the
roadway, and

(b) a pedestrian proceeding across
the roadway and facing the word "wait", the words "don’t
walk", or an outline of a raised hand exhibited after he or she entered
the roadway

(i)  must proceed to the sidewalk
as quickly as possible, and

(ii)  has the right of way for that
purpose over all vehicles.

…

Red light

129  (1) Subject to subsection (2), when a red light alone is
exhibited at an intersection by a traffic control signal, the driver of a
vehicle approaching the intersection and facing the red light must cause it to
stop before entering the marked crosswalk on the near side of the intersection,
or if there is no marked crosswalk, before entering the intersection, and
subject to the provisions of subsection (3), must not cause the vehicle to
proceed until a traffic control signal instructs the driver that he or she is
permitted to do so.

(2) The driver of a bus approaching an intersection and
facing a red light and a prescribed white rectangular indicator may cause the
bus to proceed through the intersection.

(3) Despite subsection (1), and except when a right turn
permitted by this subsection is prohibited by a sign at an intersection, the
driver of a vehicle facing the red light, and which in obedience to it is
stopped as closely as practicable to a marked crosswalk on the near side of the
intersection, or if there is no marked crosswalk, as closely as practicable to
the intersection, may cause the vehicle to make a right turn, but the driver
must yield the right of way to all pedestrians and vehicles lawfully proceeding
as directed by the signal at the intersection.

…

Careless driving prohibited

144  (1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using
the highway, …

[28]        
I have found on the appropriate standard of proof that the plaintiff was
lawfully in the intersection, crossing as a pedestrian. I am also quite
satisfied that the defendant Andrew Primus was principally concerned with being
able to turn from Keith Road onto Taylor Way in safety, and that the focus of
his attention was the state of the traffic travelling southbound on Taylor Way.
As a result, he was not sufficiently aware of what was happening immediately in
front of his car and to his right.

[29]        
While it is understandable that he would be concerned with the state of
the traffic coming from the left, the fact remains that he was obliged to
ensure that there was no pedestrian in the crosswalk, and he failed to do so.

[30]        
I have been referred to the decision of Grist J. in MacKnight v.
Nast, 2005 BCSC 469. That case which involved the plaintiff, a pedestrian,
being struck by a bicycl, while she was in a crosswalk, is factually dissimilar.

[31]        
There, the plaintiff was in a marked crosswalk and had actuated the
traffic signals. The automobile traffic had come to a stop. The defendant was
riding his bicycle on the right-hand side of the road; he passed the stopped
cars and rode into the crosswalk at speed. He saw the plaintiff at the last
minute, but was unable to stop and struck her.

[32]        
The Court was invited to find contributory negligence on the basis that,
even though the plaintiff was lawfully crossing the street, she was under an
obligation to take reasonable care for her own safety, notwithstanding the
right of way, and so some measure of responsibility should be allocated to her.

[33]        
Grist J. proceeded from the proposition that contributory negligence,
which is based on an obligation to take reasonable care for one’s own safety,
depends on the forseeability of the risk presented by the defendant’s
negligence. In those circumstances, where the plaintiff was in a marked
crosswalk, with the traffic control signals functioning and the automobiles
having stopped, he concluded it was not reasonably foreseeable that the
defendant would disregard the signal and proceed at a significant rate of speed
in the space between three stopped vehicles and the curb. To find contributory
negligence would “stretch the obligation of reasonable foresight too far”.

[34]        
In the present case, it is my view that the principle applies in a
similar way. The plaintiff was crossing the street, in a crosswalk and with a
walk signal being displayed. The defendants’ vehicle was stopped and facing a
red light. In those circumstances, the plaintiff was properly entitled to cross
in front of the car. I do not accept that a pedestrian in such a situation
should be expected to reasonably foresee that the driver of the vehicle will
make his turn without taking proper care to ensure he can do so in safety.

[35]        
In the result, I conclude that the defendant Andrew Primus is liable for
the collision and that there is no basis to find contributory negligence on the
part of the plaintiff.

(b) The Plaintiff’s Injuries and Consequences

[36]        
The plaintiff says that as the defendants’ automobile moved forward and
toward him, he held out his arm to catch the driver’s attention. Nevertheless,
the automobile struck him on the left side.

[37]        
I am satisfied that the vehicle was not moving at a high rate of speed
when the contact occurred. It would appear that Andrew Primus had been inching
forward as he waited for his opportunity to turn right. He evidently identified
what he thought to be an appropriate break in the traffic and began to move
into his right-hand turn. He testified that he was just in the process of
releasing the clutch at about the time the contact was made.

[38]        
The plaintiff describes the point of contact as his left knee and leg
and his left hand. He says that he was knocked partially off of his feet but
managed to scramble up. He also says that he subsequently experienced
substantial pain in his neck, accompanied by headache, and in his low back
area.

[39]        
He attended upon his family doctor the day following and then saw the
doctor again for the injuries on one further occasion, that is, on April 10,
2006. On the occasion of the first visit, the doctor prescribed a semi-narcotic
analgesic for pain relief. He also recommended that the plaintiff attend physiotherapy
and suggested that an over-the-counter pain medication as well as icing would
be appropriate for the treatment of ongoing pain.

[40]        
The plaintiff made two attendances on a physiotherapist; there are no
records of that treatment or outcome in evidence.

[41]        
In addition, the plaintiff began a course of treatment with a
chiropractor, Dr. Wright. He first saw her on May 27, 2006 and then
subsequently on 17 separate subsequent occasions. Initially, the visits were
quite frequent; in the first two months, he saw Dr. Wright nine different
times. The frequency of the visits diminished over time. His last attendance
was January 13 of 2007.

[42]        
The plaintiff’s description of the injuries and their duration and
effect is as follows:

(a)      Left
knee: he says the knee was bruised; he treated the injury with ice and the pain
was resolved within one week.

(b)      His
left arm: he says for the first five to seven days, he was unable to lift his hand
over his shoulder. That situation improved with the chiropractic treatment and
by June of 2007, it was substantially resolved. There was lingering discomfort
through the end of the year.

(c)      Neck:
the plaintiff says that he had significant neck discomfort for the first six
months; it largely resolved within 12 months of the incident, and was completely
cleared up 18 months after the accident. His headaches had resolved within six
to eight months.

(d)      Low
back: the plaintiff says that his back was 75-80% recovered by the summer of
2007. He also says that recovery was virtually complete following that, so long
as he maintained an exercise program. He described lingering discomfort when he
failed to be active.

[43]        
In terms of the effect upon his everyday life, the plaintiff missed one
day of work as a consequence of the injury. He said that he experienced
substantial difficulty in performing his work (tailoring of clothing) for a
period of approximately three weeks, and that his ability to do household
chores was adversely impacted for a considerable time. He says it took a year
for him to get back to normal in that regard – cooking, cleaning, and yard work.

[44]        
He also claims that the injury caused him considerable difficulty
because it interfered with his exercise activities.

[45]        
That has turned out to be a matter of some real contention in this case.

[46]        
It is clear that the plaintiff is substantially dedicated to exercise
and fitness. Indeed, at the time of the accident, he was in the course of
jogging from his place of work in downtown Vancouver to his residence in West
Vancouver. His usual practice was to run home from work four or five days per
week.

[47]        
The plaintiff says that one of the ways the injuries from the accident
have impacted his routine is that, because of them, he was not able to run in
the usual fashion, and it was in fact some time later that he was able to get
back to his pre-accident routine. His Statement of Claim also contains the
assertion that he suffered from anxiety as a result of the accident –
presumably that it caused him to be afraid and traumatized by jogging in
traffic. In fact, that complaint was not maintained at trial, and, at any rate,
the video evidence would tend to refute such a claim.

[48]        
The claim with respect to his jogging activities having been seriously
impacted is quite robustly disputed by the defendants. They say that in fact, the
plaintiff had resumed his practice of running home from work within a short
time of the accident. Specifically, both Andrew Primus and his father John Paul
Primus describe seeing the plaintiff, dressed similarly to how he had been
attired at the time of the accident, at the intersection of Marine Drive and
Taylor Way. They described him as “apparently jogging”; at the specific point
they saw him, he was awaiting a light to change in order to cross the street,
and was jogging on the spot. Additionally, both of these witnesses describe
observing the plaintiff running, apparently as he had been prior to the
accident, within two or three weeks of the accident.

[49]        
There is also the evidence of the ICBC adjuster. She testified about
having two meetings with the plaintiff. The first was on April 11, 2006, just
eight days after the accident, when she observed that he was moving slowly and
with apparent great difficulty, grimacing and mincing. She also met with him
about a month later, on May 12. At that time, he told her that he was
trying to walk as much as possible, that he was taking painkillers but that he was
not running. He said to her: “I don’t jog – I power-walk”.

[50]        
As part of its examination of the circumstances, the defence retained an
investigator to observe the activities of the plaintiff. That resulted in video
recordings being made; those were tendered in evidence at this trial. Those
recordings show the plaintiff, on three separate occasions, leaving his
downtown place of business and travelling on foot to the area of his residence
in West Vancouver.

[51]        
The first of those recordings was made on May 4. It shows the plaintiff as
he slowly jogged from his place of business to his residence. On the way, he
stopped and did some moderate physical exercise including push-ups. The elapsed
time from his departure from his place of work to his arrival at his home was
approximately 70 minutes.

[52]        
Another recording was made the day following, May 5. Again, it shows
similar activity; the elapsed time was 70 minutes.

[53]        
The third observation was conducted on May 11. Again, the plaintiff is
shown essentially jogging from his place of work to his home. The additional exercise
was done along the way in the same fashion.

[54]        
At trial, the plaintiff was confronted with this evidence, as well as
testimony he had provided in the course of an examination for discovery, at a
time when he was unaware of the recordings having been made. At the
examination, he stated under oath that he had eased into his running gradually
following the motor vehicle accident and had started running the entire
distance from his place of work to his home approximately five to six months
after the motor vehicle accident. He said that, post-accident, the trip would
take him in the order of two hours, which he said was about 45-60 minutes
longer than it had taken prior to the injury. His evidence at the examination
for discovery was that his time to make the trip, prior to the motor vehicle
accident, was in the order of 60-70 minutes.

[55]        
At trial his testimony was different. He said that before the motor
vehicle accident, he had been able to do the run and the en route workout in 40
minutes.

[56]        
Quite predictably, the apparent discrepancy between these activities and
the manner in which the plaintiff had represented his injuries and their
effects was the basis of some real dispute at trial.

[57]        
As I understand the position of the plaintiff, he says that he forced
himself to run these distances, even though he was in considerable pain, and
even though it required him to use substantial amounts of painkilling
medication, because he has a deep-seated commitment to physical exercise.

[58]        
The plaintiff also attempts to address the concern by way of what seems
to me to be something of a semantic distinction. He takes the position that he
was not jogging but walking quickly.

[59]        
The defendants adduced the evidence of an orthopaedic surgeon, Dr. Leith.
His testimony was taken on a video deposition and that was tendered at trial. He
had rendered three separate opinions, set out in report letters. The first was
dated August 28, 2008. To prepare that opinion, Dr. Leith had examined the
relevant medical records and performed an in-person assessment of the plaintiff
on April 14, 2008. At that time, he was not aware of the video recordings. His
conclusion, assuming that the plaintiff was asymptomatic prior to the accident
and that, following the accident, he had pain affecting his left knee, left upper
extremity and entire back, was as follows:

There is nothing to indicate any
structural injury to the lumbosacral spine or the vertebra of this area. The
ongoing symptoms are primarily musculoligamentous in nature and should resolve
with appropriate conservative treatment. Prognosis for recovery is good based
on the minor nature of the injuries sustained and the minor nature of the
ongoing symptoms. There is no indication that there will be any long-term
sequelae from this or requirement for any surgery. From a functional
standpoint, Mr. Berenjian continues to work although with some low back
symptoms, but this is not a significant problem based on the evaluation. The
overall prognosis is good.

[60]        
Dr. Leith was subsequently provided with copies of the video
recordings of the plaintiff jogging on the three occasions described above. In
light of that information, he provided a revised opinion, dated July 8, 2008,
quite at variance with his original. Specifically, he said there:

The observation of this video is quite compelling after
re-reviewing my assessment of April 14. 2008 and the opinion of that report. My
Medical Legal Report to you opined that Mr. Berenjian had injuries to his
left knee, left upper extremity and his entire back and the ongoing issue at
the time of my evaluation was with respect to chronic low back pain.

As a result of my review of the surveillance video, my
original opinion now becomes irrelevant. Being able to jog along the route that
Mr. Berenjian was observed jogging without any sign of any pain or
discomfort is not consistent with having any low back disability or problems.
In particular, running for the length of time that he was running on a regular
basis indicates that he did not have any injuries or disability. There is a
large proportion of the population that would not be able to perform this
length of run over the grades encountered even 100% healthy. Mr. Berenjian
reported being injured during my evaluation and not being able to do this sort
of activity without difficulty yet it is clear that he was very capable of this
type of activity.

I would therefore conclude that Mr. Berenjian
does not have any low back pain or disability as of the dates that he was
jogging, which was within one month after the subject motor vehicle accident
and at the present time, whatever symptoms he is complaining of are unrelated
to the subject motor vehicle accident.

[61]        
That opinion was further refined by way of a further supplemental
opinion rendered on July 28, 2008. In that opinion, Dr. Leith assumed that
the plaintiff’s running activities had actually commenced on April 7, 2006, not
May 4.

[62]        
That refinement was premised on the proposition that the two defendants
had observed the plaintiff running on April 7, in a manner similar to that
depicted in the video recordings.

[63]        
Operating from that assumption, Dr. Leith opined that the plaintiff
would not have sustained any formidable injuries as a result of the motor
vehicle accident on April 5, 2006, because if he had, he would not have been
able to participate in the type of physical activity depicted.

[64]        
The response of the plaintiff, as indicated, is that he was not running
in the days immediately following the event. While he accepts that the
activities depicted in the video recordings are accurate, he insists that he
was doing so only in the face of great pain and with the assistance of pain
suppression medication.

[65]        
In support of that position, he relies upon subsequent follow-up medical
opinions prepared by the family doctor, Dr. Mamacos, and the chiropractor,
Dr. Wright. Both of those persons authored opinions in response to the
revised subsequent opinion of Dr. Leith.

[66]        
Dr. Mamacos essentially stands by his original report. He says as
follows:

In the video he is seen to be exercising actively – does that
mean he was never injured? A lot of healing can evolve in a month. A high pain
threshold can motivate someone who loves to exercise to be active. He was seen
“jogging” not sprinting.

My initial report showed bruising of his knee from the
accident. He also had para-vertabral muscle spasm, etc-objective findings.

… I continue to support my
findings that [he] sustained injuries after an MVA on April 16, 2006.

[67]        
Similarly, Dr. Wright stands by her conclusion that the plaintiff
sustained real injuries. She notes that it is her practice to advise patients
who have been injured in accidents to continue to exercise to control symptoms
and facilitate recovery. She says the ability to continue in a regular exercise
routine does not preclude the existence of injury. She observes as well that
she had the opportunity to examine and treat the plaintiff over the course of
seven months, and that she observed objective evidence of injury and concluded
his symptoms are the result of the accident.

[68]        
I am concerned with the veracity of the plaintiff’s claims regarding the
extent, severity and effects of the injuries he suffered. The principal basis
upon which the claim rests is his testimony, his description. There is not any
notable objective evidence to support his assertions of the quite extensive
nature of the consequences.

[69]        
On the other side of the ledger are three significant factors:

(a)      Firstly,
the evidence of the plaintiff’s physical activities in the time following the
accident is troubling. The jogging activities in which he was observed to be
engaged and which have been proven by the video recordings, within a month of
the event, are, in my view, quite strikingly at odds with the description he
has provided of the extent of the effects of the injuries.

 There
are as well the observations made by the defendants, even before the video
recorded activities. While they are not conclusively proven by photographic
evidence, in view of the videos and, noting that both defendants have testified
as to observations of the plaintiff having resumed some sort of jogging routine
within weeks of the event, I must attribute some credence to their testimony on
that matter.

 In
the result, I am driven to conclude that the plaintiff was able to engage in
significant physical activity within a month of the accident.

(b)      Secondly,
I find his evidence with respect to the issue problematic. His testimony at
trial is not consistent with what he said at his examination for discovery. Those
discrepancies are set out at para. 54 above.

 I
also find that the representations he made to the insurance adjuster are
difficult to accept as truthful in light of the video evidence. His explanation
at trial, that the discrepancies are more semantic than real, and that he was
forcing himself to run, taking medication to be able to keep the pain within
the limits of tolerability, is, in the totality of the circumstances, of some
dubious believability.

(c)      The
third factor is the nature of the event: the impact was quite minor. While that
is not determinative – I accept that low-speed contact can, in some
circumstances, result in injuries of real gravity – it is a factor that is
entitled to some consideration.

[70]        
In the final analysis, I have very serious doubts as to the truth and
reliability of the plaintiff’s description of the extent of the injuries and
their impact upon him. My conclusion is that there was some soft tissue injury
– bruising and discomfort – but it was fairly minor in that he was able to
resume his running within a month. In view of that finding, while I accept
there may have been some lingering residual discomfort, it would be of a fairly
modest magnitude.

[71]        
Similarly, as for his claims that his neck pain continued for 12 to 18
months, that the headaches persisted for six to eight months, and his complaint
of low back pain, I find that he has not proven on a balance of probabilities
that such injuries resulted in discomfort such as he describes. On the
evidence, it was substantially less.

(c) Damages

[72]        
The plaintiff says that he suffered soft tissue injury to his neck and
back which negatively impacted his life. He says the primary symptoms resolved over
18 months, and there was reducing intermittent low back discomfort since that
time. In his submission, an appropriate award for non-pecuniary damages is
$30,000.

[73]        
In support of that submission, he cites four trial decisions of this
Court:

1.       In Parihar
v. Allan, [2006] BCSC 1505, the plaintiff suffered soft tissue
injury to neck and back following two minor collisions; substantial recovery in
the first nine months, with intermittent symptoms for an additional six months.
At trial, three years post-accident, the plaintiff reported only occasional
discomfort with activity. Non-pecuniary damages: $25,000.

2.       In Kahlon
v. Prasad, 2006 BCSC 2039, the plaintiff sustained soft tissue injuries
after a minor collision; no time missed from employment and the symptoms had
fully resolved within 14 months. Non-pecuniary damages: $25,000.

3.       In Krause
v. Gill, [2006] BCSC 1459, the plaintiff sustained soft tissue injuries to
the neck and back; substantial recovery within the first six months and
residual pain for an additional 12 months. At trial, three years post-accident,
plaintiff reported ongoing residual discomfort. Non-pecuniary damages: $30,000.

4.       In White
v. Stonestreet, [2006] BCSC 801, the plaintiff sustained soft tissue
injuries to neck, shoulder and back; significant improvement noted in the first
six months and all symptoms had largely resolved within an 18 month period,
with some continuing residual pain. Non-pecuniary damages: $35,000.

[74]        
The submission of the defendants is that this plaintiff suffered minor
soft tissue injuries of very limited duration. The defendants emphasize that
the plaintiff is obliged to adduce “convincing evidence” “that his complaints
of pain are true reflections of a continuing injury”. They say that when the
evidence is considered carefully and critically, the plaintiff has not proven
more than a mild, transient injury.

[75]        
The defendants make reference to a number of decisions which are
characterized as addressing modest awards for modest injuries, with the
submission that each of the cases in fact describe injuries more serious than
those suffered by Mr. Berenjian:

1.       In Kosko
v. Collie, (19 September 1995), New Westminster C911774 (S.C.), the
plaintiff sustained a neck injury, resolved in four months. Non-pecuniary
damages: $4,000.

2.       In Cooper
v. Torrance, 2003 BCPC 271, the plaintiff sustained injuries that were
described as being severe for three weeks, moderate discomfort for
approximately two months thereafter and some residual symptoms. Non-pecuniary
damages: $2,500.

3.       In Gill
v. Mansour, 2004 BCSC 1537, the plaintiff sustained mild soft tissue
injuries which continued for a period of two months and resolved with only
minor discomfort after. Non pecuniary damages: $3,000.

4.       In Laboucane
v. Paine, 2009 BCPC 0086, the plaintiff suffered a modest injury that was
partially disabling for approximately one month. Non-pecuniary damages: $3,000.

5.       In Seto
v. Ng, 2009 BCPC 0218, the plaintiff suffered injury that was found to have
lasted for four month duration. Non-pecuniary damages: $2,500.

6.       In Dolha
v. Heft, 2011 BCSC 737, the plaintiff sustained injuries that continued for
a period of approximately six to nine months. Non-pecuniary damages: $7,000.

[76]        
The defendants have also made reference to a decision of the Court of
Appeal, Le v. Luz, 2003 BCCA 640. In that case, the Court set aside a
jury verdict of $200 for non-pecuniary damages and substituted a verdict of
$2,000. In its decision, the Court noted that while there was no intention to
set a floor or a benchmark for minor soft tissue injuries, an award of $2,000
seemed appropriate in the circumstances.

[77]        
It is obvious that the two very distinctly different submissions reflect
quite different views of the magnitude and consequences of the injury. My
conclusions are as set out in paragraphs 70 and 71 of these Reasons.

[78]        
In my view, the appropriate award of non-pecuniary damages in this case
is $4,000.

[79]        
The plaintiff also seeks an award in respect of special damages. The
amount sought is $940, which is the sum paid for therapy expenses. Although
there was discussion as to interest costs incurred with respect to those fees,
the plaintiff’s submission does not seek recovery of any interest paid.

[80]        
Given my findings as to the extent of the injuries, I am not satisfied
that all of the fees paid for chiropractic care are reflective of a genuine
need for those services. In the result, the plaintiff is entitled to recover
$500 for those costs, representing a portion only.

[81]        
The defendants have advanced an argument with respect to a failure to
mitigate. As I understand, that is put forward as an alternative, in the event
the Court finds that the plaintiff suffered more than relatively minimal soft tissue
injury that resolved quite straightforwardly. Given my finding, I see no
purpose in addressing this submission.

Summary of Conclusions

[82]        
The accident of April 5, 2006 was caused by the negligence of the
defendant driver. In that accident, the plaintiff sustained injuries which
entitle him to recover damages as follows:

Non-pecuniary damages:   $4,000
Special damages: $   500
Total:                               $4,500

[83]        
The plaintiff is also entitled to recover pre-judgment interest pursuant
to the Court Order Interest Act, R.S.B.C. 1996, c. 79 in respect of
the special damages.

[84]        
In the absence of there being considerations of which I am unaware, the
plaintiff shall recover his costs of this action. If necessary, arrangements
may be made through New Westminster Supreme Court Scheduling to provide further
submissions on that issue.

“The
Honourable Mr. Justice Williams”