IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130312

Docket: M110724

Registry:
Vancouver

Between:

Lisa Therese De
Abreu

Plaintiff

And

Eugene Huang and
Ru Zhou Huang

Defendants

Before:
The Honourable Mr. Justice Steeves

Subject
to Rule 15-1

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages as a result of a motor vehicle accident that
occurred on April 19, 2009. She was driving in reverse in an alley when the
defendant’s vehicle backed out of a parking lot and hit her vehicle.

[2]            
The plaintiff submits that the accident caused her to have neck pain,
headaches and upper back pain. She seeks special and non-pecuniary damages as
well as damages for cost of future care. She does not seek damages for past
income loss or loss of future earning capacity.

[3]            
The defendant submits that the plaintiff was contributorily negligent
with regards to the April 2009 motor vehicle accident because she was driving
in reverse and not taking reasonable care. An equal apportionment is sought. He
also submits that the plaintiff’s injuries were minor and he disputes the
amounts of damages claimed by the plaintiff.

[4]            
Therefore, there is no dispute that there was an accident involving the
vehicles of the plaintiff and the defendant. However, there is a dispute as to
whether one or both of the parties was negligent and there is a dispute as to
the extent of the plaintiff’s injuries and the damages she is entitled to.

Background

[5]            
The plaintiff was born in 1969 and, at the time of trial, she was 44
years old. She is currently working as a teacher and also completing a
university degree in general studies. She expects to complete that degree in
2016.

[6]            
In 1991 the plaintiff began part-time work in a group home assisting
children and adults with disabilities, some with severe disabilities. While
doing this work she injured her lower back and hip and she has been obtaining
chiropractic and other treatments for this condition since the original injury.
She also explained to a physician that she had back pain beginning at age 20
and she has needed occasional chiropractic treatment for this.

[7]            
In 1995 the plaintiff commenced work as an educational assistant with
the Burnaby School District. Among other things this involved planning and
implementing behavioral management strategies as well as monitoring the behavior
of students. The work was for about five hours per day. She continued to work
part-time at the group home.

[8]            
The plaintiff now has a conditional teaching certificate and in the fall
of 2011 she commenced work as a teacher of special needs students. This work
involves substantially more time than the educational assistant work and the
plaintiff supervises a team of seven other employees.

[9]            
Prior to the April 2009 accident the plaintiff was involved in a number
of activities. She had been practicing yoga for a number of years before April
2009 and she had advanced to the point that she was doing difficult positions. She
was also involved in boat paddling including a three-hour race in 2000. She
undertook a triathlon in 2005 including about four to six months training with
friends. She has had a dog for a number of years and she spends time every day
walking the dog. She took belly dancing classes in 2007 and 2008. These
activities were confirmed by the testimony of a friend of the plaintiff,
Shannon Anselmo.

The accident

[10]        
In the spring of 2009 the plaintiff’s partner, Jennifer McGinn, was
campaigning to be elected to the provincial legislature. The plaintiff was
assisting Ms. McGinn, including driving her to various locations.

[11]        
On April 19, 2009 the plaintiff was driving Ms. McGinn to her campaign
office in the 500 block of Broadway in Vancouver. Ms. McGinn was in the front
passenger seat. The plaintiff drove her vehicle into an alley behind the
campaign office with the idea of parking in a parking spot where she had parked
a number of times before. However when they approached the parking spot, about
80% the length of the block, they observed that it was taken by another vehicle.

[12]        
The plaintiff stopped her vehicle, placed it in reverse and drove in
reverse back down the alley. She did this because she knew there was alternate
parking behind her where she had also parked before. She testified that she
looked both ways over her shoulders and in her mirrors and she proceeded to back
up. After going a short distance for about five to ten seconds, she heard and
felt something hit the rear of her vehicle, behind the driver’s door. This
turned out to be the defendant’s vehicle. According to the evidence of the
plaintiff, she did not see the defendant’s vehicle until after the impact. Her
first reaction was that she thought she had “hit a pole.” Photographs taken
just after the accident (by the defendant’s father) show the plaintiff’s
vehicle stopped on the far side of the alley. That is, the south side of the
alley.

[13]        
The defendant also testified. He was about 22 years old at the time of
the April 2009 accident. He obtained his learner’s driver’s license in 2008 and
then his “N” license in the same month as the accident, April 2009. His father
operates a restaurant in the 500 block of Broadway, he works there as a server
and he is familiar with the alley where the accident took place. He agreed it
is a busy alley. The defendant was aware of the parking lots in the alley and
he agreed that there is a grade from the parking lot up to the alley.

[14]        
On the date of the accident, April 19, 2009, the defendant parked the
vehicle he was driving in the parking lot at the rear of and beside his
father’s restaurant. The vehicle was owned by his father. The defendant was on
his way to a party of his friends and he stopped to pick up some food to take to
the party. He parked with the front of his car into the parking space. He went
inside the restaurant using a door in the alley, picked up his food and left
the restaurant using the same door, back into the alley.

[15]        
The parking spot occupied by the defendant was one of five spots angled
against a wall that was perpendicular to the alley. It was the second spot in
front of the alley. It faced a wall as did the first parking spot. In his
evidence the defendant agreed that this wall obstructed his vision on the right
(east), the direction from which the plaintiff came. In addition, there was
another wall further east that extended right to the alley. This also restricted
the defendant’s view in the direction that the plaintiff came from.

[16]        
The defendant testified that he entered the car, he fastened his
seatbelt and he did a “360 degree check”, looking over his left and right
shoulders. He started the engine, put the transmission in reverse and he backed
up. His intention was to back into the alley in reverse, turn around and then
head west down the alley to go to his party.

[17]        
Because there was grade up to the alley the engine had to be “gassed a
little more”, as the defendant put it in his evidence. However the engine was
“not gassed all the time”; he “gas[sed,] then mov[ed]” as he backed up slowly. When
asked why he did not turn around in the parking lot he reviewed the photographs
in evidence and he said that other cars were parked in the parking lot so he
could not turn around in the parking lot.

[18]        
The defendant testified that, as he backed up, “before I knew it I hit a
car.” Both vehicles stopped and both drivers got out to exchange the usual
information. The defendant then went into the building behind the parking lot
and came out with an older man, the defendant’s father.

[19]        
Photographs were entered into evidence that demonstrated damage to the
left rear side of the plaintiff’s vehicle and the right rear bumper of the
defendant’s vehicle. The cost for repairing the plaintiff’s vehicle was $2,512.43
and the cost to repair the defendant’s vehicle was $650.23.

After the accident

[20]        
At the time of the April 2009 accident the plaintiff was living by
herself in a small apartment. Since June 2010 she has been married and she
lives with her partner, Ms. McGinn, in a two-bedroom apartment that is about
742 square feet.

[21]        
The plaintiff testified that she is not able to do some tasks around the
home, especially ones involving reaching. She tried to do a short paddling race
but she regretted that attempt because it increased her symptoms. She is unable
to do the advanced yoga positions she did before the accident, especially
positions such as head stands where the neck is taking some stress. She is
still able to walk her dog but she does not feel comfortable going back to
activities such as belly dancing. Ms. Anselmo and Ms. McGinn confirmed these
limitations in their evidence.

[22]        
The plaintiff testified that she felt pain and shoulders right after the
April 19, 2009 accident. She first sought medical attention on April 29, 2009. This
was at a walk-in clinic and she went there because she was concerned she was
not getting better. Still, she “thought it was no big deal” and she thought it
would “pass” because she was “in pretty good shape.”

[23]        
The chart for the medical appointment on April 29, 2009 is not fully legible
but it does record a “sore neck” and physiotherapy was recommended. The
plaintiff testified that she did not follow this recommendation. She explained
that she had used physiotherapy previously for her lower back and hip problems
and it provided only temporary relief. The plaintiff testified that during the
spring and summer of 2009 she experienced tightness in her neck, especially with
left and right extension. At the time she was doing stretching exercises on her
own.

[24]        
By July 2009 the plaintiff concluded her back problems were not going
away and she decided to see a chiropractor, Dr. Victor Sam. Dr. Sam had helped
the plaintiff previously with her lower back and hip. Dr. Sam’s chart notes are
entirely illegible. The plaintiff testified that his treatment helped her “for
a short time.” She next saw another chiropractor, Dr. Jonathan Gerrard. Among
other things Dr. Gerrard had the plaintiff complete a “Neck Disability Index”
form. In a form dated July 17, 2009 the plaintiff agreed with the following
statements, among others,

The pain is moderate at the moment.

I can look after myself normally, without causing pain.

I can lift heavy weights, but it gives extra pain.

I can do as much work as I want to.

I have no trouble sleeping.

[25]        
The plaintiff completed other indexes for Dr. Gerrard and the questions
asked changed with subsequent forms (including the deletion of a section on
work). One is dated October 14, 2009 and the plaintiff agreed to the following
statements, among others,

The pain comes and goes and is very mild.

I do not normally change my way of washing or dressing even
though it causes some pain

I can lift heavy weights but it gives extra pain.

I get no pain in bed.

My social life is normal and
gives me no pain.

[26]        
Dr. Gerrard’s chart notes are also in evidence for a number of
appointments with the plaintiff over the period October 2008 to October 2009. These
record the plaintiff’s problems with her lower back and hip prior to the April 2009
accident that is the subject of this litigation. The plaintiff saw Dr. Gerrard
for the first time after the accident on July 17, 2009 and on four other
occasions in that same month. She was seen on three occasions in August 2009
and on five occasions in October 2009. Some of this visits included treatment
for the lower back and hip and, in her evidence, the plaintiff was unable to
say whether the neck or the lower back/hip was the primary object of treatment.

[27]        
This mixing of the causes for the treatment is reflected in Dr.
Gerrard’s chart. On July 30, 2009 there was increased range of motion in the
neck and there was an “overall sense of feeling looser” and on August 7, 2009
the plaintiff played volleyball without difficulty or pain. Then on October 14,
2009 Dr. Gerrard’s assessment was that there was “no disability in the neck and
minimal disability in the mid back.” Then after the 2009 accident, on August 4,
2009, the hip was “starting to act up insidiously.”

[28]        
The plaintiff saw her general physician on July 15, 2010 and the chart
records “Still upper back/neck issues.” Physiotherapy was recommended. The
plaintiff testified that she did not go to physiotherapy because she had taken physiotherapy
for her lower back and hip in the past and not had only given her temporary
relief. She went to her doctor “to see if they could say where things were at.”
The plaintiff saw her general physician again on May 2, 2000 and again
physiotherapy was recommended.

[29]        
The plaintiff did attend at physiotherapy in January 2011. In
cross-examination she was asked why she waited more than one year after the
April 2009 accident to attend physiotherapy. She said in the past physiotherapy
had given her temporary relief, “nothing long standing”, but with her ongoing
neck and upper back problems she thought she would try it.

[30]        
The plaintiff was seen by various chiropractors on a number of occasions
from July 2011 to January 2013.

[31]        
The impression of an x-ray of the cervical spine on May 6, 2011 was of
degenerative disc disease at the C4-5 and C5-6 levels.

Expert evidence

[32]        
The plaintiff retained an expert and there was no expert for the
defendant.

[33]        
The plaintiff’s expert was Dr. Rubin Feldman, an expert in physical
medicine and rehabilitation. Dr. Feldman’s report is dated June 12, 2012. He
was cross examined by counsel for the defendant by means of video deposition.

[34]        
I reproduce a portion of the summary and opinion of Dr. Feldman, Q1

The history and physical examination provided
information which allowed us to determine why she continues to have pain for
three years after the accident. The presence of significant cervical paraspinal
muscle spasm as well as problems related to spasm of the trapezius muscles,
weakness of the left more than right serratus anterior muscle, and instability
on abduction of the shoulders all contributed to the chronic pain which has
persisted for this length of time.

As to causation, there is no doubt that the
circumstances of the accident were what caused all of these problems to
develop. She was totally asymptomatic prior to the accident.

Relative to management, given the
abnormalities that were identified on physical examination and radiologically,
it would be my opinion that she will need a program in which attention is
targeted particularly towards the serratus anterior muscles by strengthening of
these muscles sufficiently to have them control scapular movement during
abduction of the shoulders so that winging would no longer occur. This should
have the effect of allowing the trapezius muscle to function normally without
going into muscle spasm and the same could be said for the cervical paraspinal
muscles.

In addition, if she is to be able to return
to normal function of her neck, she will need a combined effort of
massage and physical therapy to allow her to start moving her neck properly
again. What is required is for massage therapy to be able to reduce the amount
of muscle spasm in her posterior neck and trapezius muscles. This should be
followed, during the same treatment session, by physical therapy to teach her
how to begin to use her neck normally again, taking advantage of diminished
muscle spasm obtained by proper massage therapy just prior to the time that
physical therapy would start. The combined effort of massage therapy and
physical therapy should have the effect of bringing her muscles involved in
neck movement back to normal function.

Relative to prognosis, I must voice my
concerns about the length of time that has elapsed since the accident and
therefore the length of time that she has been symptomatic. The duration of
pain for a period of three years may have an effect of reducing the effectiveness
of massage and physical therapy as described.

Nevertheless, she should be given the
opportunity to participate in this type of program for a period of at least two
to three months. She should be re-evaluated after that length time, to
determine whether the treatment has been effective in improving the function of
her neck and shoulders with resultant decrease in pain.

In my experience, there usually is a very
positive result obtained by this type of treatment so that permanent disability
from these injuries is rare. Done correctly as a targeted treatment for the
areas involved, this type of treatment becomes quite successful in treating
these areas of persistent pain "after the accident.

Finally, she
would be helped by a general conditioning exercise program to try to bring her
back to the level of fitness that she was in prior to the accident.

Analysis

[35]        
Liability, with respect to apportionment, and quantum are at issue.

Liability

[36]        
This is perhaps a somewhat unusual case because both the plaintiff and
defendant were reversing their vehicles at the time of the collision in April
2009.

[37]        
For this reason, the defendant submits that liability should be equally
shared as between he and the plaintiff. This is because, according to the
defendant, both parties failed to keep an active look-out for hazards while
performing a maneuver that placed themselves and others at risk.

[38]        
The facts are that the April 2009 accident involved an alley or lane
with some parking lots on either side. The plaintiff drove forward until just
before the end of the block, stopped and reversed. At that point she was
required to comply with s. 193 of the Motor Vehicle Act, R.S.B.C.
1996, c. 318 [MVA] which is as follows,

Caution in backing vehicle

193. The driver of a vehicle must
not cause the vehicle to move backwards into an intersection or over a
crosswalk, and must not in any event or at any place cause a vehicle to move
backwards unless the movement can be made in safety.

[39]        
The plaintiff testified that she did shoulder checks as she reversed
down the alley. There is no evidence she was speeding. It is not contrary to
the MVA or any other law to drive a vehicle in reverse. What is required
is to drive safely when reversing and I find that the plaintiff did so.

[40]        
The defendant was parked in a parking lot on the north side of the alley.
He reversed his vehicle to leave the parking lot and he had to use his gas
pedal more than once to get up the grade to the alley. Contemporaneous
photographs and the defendant’s evidence confirm that the impact between the
vehicles took place when the defendant’s vehicle was across the alley and the
plaintiff’s vehicle was on the south side of the alley. That is, the defendant
had left the parking lot, crossed one lane of the alley and hit the plaintiff’s
car in the next lane. As well, the damage to the defendant’s vehicle was on the
right rear bumper and this indicates that it was at an angle to the plaintiff’s
vehicle. Neither the plaintiff nor the defendant saw the other before the
impact.

[41]        
In a previous case (McKenzie v. Insurance Corporation of British
Columbia, [1992] B.C.J. No. 1110, aff’d [1993] B.C.J. No. 2486) the
plaintiff was driving on a road that was part of a parking lot. He was
broadsided by the defendant’s vehicle coming from what Mr. Justice Fraser
described as a “servient road” as follows,

While the rules of the road
historically established by the Motor Vehicle Act R.S.B.C. 1979, c. 288
and by the common law may not always translate to parking lots, which may have
configurations different from public highways, I find that the locus of this
accident substantially resembles that of a main road being fed by a servient
road. Mr. McKenzie was on the main road and Ms. Naumann was emerging from a
parking area which fed out onto the main road. Ms. Naumann intended to emerge
from the parking area and angle left across the main road to a different
parking area. The obligation was on her to ensure that this move could be made
in safety. She failed to do so. The defendants in this action are liable.

[42]        
In my view, while the facts are not exactly the same, that analysis has
some application to the instant case. The defendant was coming from a servient
position, the parking lot, and attempting to turn around in the alley. The
obligation was on him to ensure that entering the alley was done safely. There
were obstacles to his right in the form of walls that restricted his vision and
he was required to take those into account before he entered the alley. He
failed to account for those obstacles when he backed into the alley or he
otherwise did not take reasonable care. I find he is liable for the resulting
accident.

[43]        
I find the defendant was negligent when he entered the alley
without taking necessary and reasonable precautions. I deny his submission that
the plaintiff was contributorily negligent.

Damages

[44]        
It follows from the above conclusion that the plaintiff is entitled to
damages without apportionment. She claims damages for non-pecuniary loss,
specials and cost of future care. She does not claim for past and future income
loss.

[45]        
I assess those damages as follows.

Non-Pecuniary Damages

[46]        
In Stapley v. Hejslet, 2006 BCCA 34, 221 B.C.A.C. 272, the Court
of Appeal has outlined the factors to consider when assessing non-pecuniary
damages (at para. 46),

[46] The inexhaustive list of
common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors,
although they may arguably be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163 (Q.L.), 2005 BCCA 54).

[47]        
The plaintiff seeks non-pecuniary damages in the range of $25,000 to
$35,000. The following decisions are relied on: Dhaliwal v. Vail, 2007
BCSC 1954; Myers v. Leng, 2006 BCSC 1582; Orrell v. Lynch, 2008
BCSC 1696; and King v. Horth, 2009 BCSC 1114. The defendant submits that
non-pecuniary damages should be in the range of $15,000 to $20,000 and relies
on the following decisions: Boutin v. MacPherson, 2012 BCSC 1814; Mak
v. Eichel, 2008 BCSC 1102; and Woods v. Chahal, 2008 BCSC 1555.

[48]        
The evidence is that the April 2007 accident has created some
limitations on the activities of the plaintiff. She was generally active before
the accident. She is not as active now as she was before the accident so that,
for example, she does little paddling. She did a triathlon before the accident.
The evidence is not clear that she would have continued in that sport and it is
certainly a daunting one to prepare for. In any event she has not attempted a
triathlon since the accident. She is not able to do the more advanced yoga
positions and exercises she could do before the accident and she feels
constrained to do actitivites such as belly dancing. As well, her partner and
friend confirm she is generally more protective of her neck and upper back and
is generally less active.

[49]        
However, it is not the case that the plaintiff has significant or even
moderate limitations as a result of the April 2007 accident. To her credit she
remains relatively active and she has managed to obtain the education and
experience to be able to work as a special needs teacher. This is physically
demanding as well as stressful. As well, the medical evidence indicates that
the plaintiff has firm and particular views of what medical treatment she will
participate in. For example, physiotherapy was recommended by her physician
soon after the April 2009 accident and she delayed taking that treatment. Her
explanation is that she has taken physiotherapy in the past for her lower back
and hip and it provided only temporary relief. She holds the same views with
regards to massage therapy and chiropractic treatment. With regards to the
lower back and hip there is medical evidence that these complaints continue.

[50]        
The defendant submits that the plaintiff has not mitigated her losses
because she has not followed the advice of her medical professionals (Graham
v. Rogers, 2001 BCCA 432; Antoniali v. Massey, 2008 BCSC 1085). Specifically,
it is submitted that the plaintiff did not act reasonably when she did not
follow the advice of her physicians and her damages should be reduced
accordingly. I can agree that the plaintiff delayed her treatment recommended
by her physician but she ultimately took that treatment. As well, while there
is radiological evidence of degeneration in the neck, overall the symptoms
experienced by the plaintiff were minor and there is no medical evidence that
suggests her recovery was significantly affected by her decisions about medical
treatment.

[51]        
Bearing all of this in mind, I conclude that non-pecuniary damages in
the amount of $25,000 are appropriate.

Special Damages

[52]        
The plaintiff claims special damages in the amount of $5,743.28. This
figure is net of amounts claimed from a benefit carrier. It includes specific
items such as pillows (to assist with sleeping), “Miracle Balls” (to relieve
upper back and neck pain), as well as physiotherapy, massage and chiropractic
treatment. On the other hand the defendant says no special damages should be
paid.

[53]        
I note that the plaintiff’s claim for special damages includes payment
for acupuncture and it also includes payments for treatment for her lower back
and hip. Neither of these are a result of the April 2009 accident. Similarly,
some of the physiotherapy etc is for the lower back.

[54]        
The evidence does not permit a breaking out of expenses related to the
April 2009 accident and expenses that are not related. I assess special damages
in the amount of $3,500.

Cost of Future Care

[55]        
The plaintiff seeks costs of future care for medication (Ibuprofen),
chiropractic treatment, physiotherapy and massage therapy. The total is $9,940.00.
The defendant opposes payment for any future care.

[56]        
The plaintiff is entitled to the cost of some future care to assist in
the treatment of the injuries associated with the April 2009 accident. She is
not entitled to the cost of future care for her lower back and hip. As well, by
the plaintiff’s own evidence, modalities such as physiotherapy and massage
therapy provide her only temporary relief. I conclude some temporary regime of
future care is appropriate.

[57]        
Dr. Feldman opined that a regime over six months involving massage
therapy and physiotherapy, the latter closely following the former, would be
appropriate in this case. Again, the plaintiff’s experience is that these
modalities give only temporary relief. I do not agree with Dr. Feldman that
three times per week of massage and physiotherapy would be appropriate. I have
some doubts as to the six month period as well.

[58]        
For these reasons I conclude that massage therapy followed by
physiotherapy once a week for three months is an appropriate future care regime
in this case. This amounts to twelve sessions of each and the cost is $50.00
per session for physiotherapy and $70.00 per session for massage therapy. The
total is $1,440.00.

Summary

[59]        
A summary of the assessment of damages in this case is as follows,

“Steeves,
J.”