IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131023

Docket: 45271

Registry:
Kamloops

Between:

Surinder
Kaur Johal

Plaintiff

And

Bryan
Joseph Conron

Defendant

Before:
The Honourable Madam Justice Donegan

Reasons for Judgment

A. INTRODUCTION

[1]            
The plaintiff, Surinder Kaur Johal, claims damages for personal injuries
sustained in a motor vehicle accident on June 10, 2009. Liability is not in
issue.

[2]            
It is Mrs. Johal’s position that, as a result of the motor vehicle
accident, she suffered mild/moderate soft tissue injuries of the cervical and
lumbar spine that aggravated pre-existing medical conditions and/or created new
ones. She seeks non-pecuniary damages in the range of $50,000.00 to $75,000.00
and special damages in the amount of $5,041.06.

[3]            
It is the defendant’s position that the injuries sustained by Mrs. Johal
were minor in nature. The defendant contends that Mrs. Johal has understated
her pre-accident health problems and limitations and overstated her
post-accident ones. The defendant submits that an award of non-pecuniary
damages in the range of $6,000.00 to $15,000.00 and special damages in the
amount of $2,106.52 is appropriate.

B. PRELIMINARY COMMENTS ON
MRS. JOHAL’S EVIDENCE

[4]            
The defendant submits that the plaintiff was not a credible witness and
urges the court to be cautious in accepting her evidence. It is argued that her
evidence lacks a “firmness of memory” and contains inconsistencies.

[5]            
Counsel for the plaintiff submits that Mrs. Johal was a witness who
genuinely tried to provide accurate testimony. Her evidence is, he argues,
consistent with the evidence of other witnesses – witnesses the court should
find to be credible.

[6]            
Factors to be considered in the assessment of credibility are set out in
Bradshaw v. Stenner, 2010 BCSC 1398 as follows:

[186]    Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis (1926), 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).

[7]            
In assessing Mrs. Johal’s credibility, I am mindful that she possesses
only basic English language skills. She testified through the use of an
interpreter. In her day-to-day life, she is able to communicate in English, but
only at a basic level. I appreciate that her verbal communication skills may
lack the precision one might expect from a fluent speaker.

[8]            
Mrs. Johal’s memory about the physical symptoms she exhibited over the
years was not particularly precise. I do not find this to be an attempt to
deliberately mislead the court, but rather an understandable frailty of human
memory. Fortunately, detailed medical records exist which record Mrs. Johal’s
reported symptoms in the years, months and days leading up to and following the
accident. Mrs. Johal testified she told the truth to doctors. I accept this.
She had no reason to mislead medical professionals who were trying to help her.

[9]            
Mrs. Johal’s evidence was generally consistent with the evidence of the
other civilian witnesses. I recognize those witnesses all have a close bond
with the plaintiff, but I did not find their evidence to be exaggerated, biased
or in other ways faulty.

[10]        
On the evidence as a whole, despite some memory frailties and some inconsistencies,
I conclude that Mrs. Johal was a credible witness.

C. THE PLAINTIFF’S
PRE-ACCIDENT CONDITION

[11]        
Mrs. Johal was born on February 1, 1956. She emigrated to Canada in 1976
and married in 1977. She and her husband, Mohinder Johal, had four children who
are now all independent adults. They currently have three grandchildren.

[12]        
Mrs. Johal began working outside of the home in 1990, at the age of 34.
Until she was disabled from employment in April of 2009, she held the following
positions:

[13]        
Mrs. Johal’s employment, particularly her work at the mill, involved
heavy, physical work. Over the years, she often worked full-time or greater
than full-time hours.

[14]        
In 2006, Mrs. Johal began experiencing pain in her shoulders. She was
referred to a rheumatologist, Dr. Navratil. Dr. Navratil diagnosed bilateral
rotator cuff tendonitis in both shoulders. For treatment, he recommended and
administered cortisone injections in the shoulders. She continued to see Dr.
Navratil periodically for further injections as needed. In 2008, her family
doctor, Dr. Zsigmond, diagnosed her with osteoarthritis of the shoulders.

[15]        
By April of 2009, Mrs. Johal’s shoulder pain was so debilitating that
she could no longer work. Dr. Zsigmond referred her to physiotherapy.

[16]        
Mrs. Johal saw Dr. Navratil on April 7, 2009. He injected her right
shoulder, noting improvement in her left shoulder, but only minimal improvement
in the right.

[17]        
On April 10, 2009, Mrs. Johal attended to hospital with complaints of
chest and abdominal pain, headaches and dizziness.

[18]        
She attended her first physiotherapy appointment on April 15, 2009. At
that time, she reported right shoulder and neck pain, as well as numbness and
tingling in her hand. The physiotherapist’s impression was that Mrs. Johal
suffered from “severe myofascial pain” and “overuse syndrome neck and upper
extremity”.

[19]        
Her next physiotherapy appointment was on April 24, 2009. She reported
decreased neck and shoulder pain following her last treatment, but increased
pain in her hand upon movement. The physiotherapist, Ms. Baerg, testified that
by the end of treatment, Mrs. Johal could use the treadmill and bicycle for
more than ten minutes. Further therapy would be required.

[20]        
As a result of her shoulder problems, Mrs. Johal filed an application
for Canada Pension Plan (“CPP”) disability benefits on April 30, 2009.

[21]        
On May 15, 2009, Mrs. Johal saw Dr. Navratil again. She reported pain in
her whole right upper extremity, down her hand, as well as “a lot of pain in
her neck.”

[22]        
On June 4, 2009, Mrs. Johal had an x-ray of her cervical spine. This
x-ray showed “small anterior osteophytes at the C4-C5 and C5-C6 levels, with
preservation of disc height of spondylosis seen.” This can be a sign of
degeneration.

[23]        
On June 8, 2009, Mrs. Johal saw Dr. Navratil again. He noted that she
continued to have a lot of pain in her neck, upper back, right shoulder and
arm. He prescribed Prednisone.

[24]        
On June 10, 2009, the accident occurred. On that day, Mrs. Johal was
seen by Dr. Zsigmond and by medical personnel at Royal Inland Hospital.

[25]        
Controversy arose in the evidence as to when Mrs. Johal saw her family
physician, Dr. Zsigmond, that day – before or after the accident.

[26]        
Although Dr. Zsigmond was emphatic that he saw Mrs. Johal in his office
after the accident, I am satisfied that the evidence establishes that the visit
occurred before the accident. Both Mr. and Mrs. Johal testified the visit was
prior to the accident. Mrs. Johal recalled that she was looking down at a
document that she had received from Dr. Zsigmond at the time the accident
occurred. As well, Jaswinder Basran, a family friend, testified that she picked
up the Johals from the hospital following the accident. Her recollection of
that day is detailed. She took the Johals home from the hospital, with no
mention of a stop at Dr. Zsigmond’s office.

[27]        
The purpose of Mrs. Johal’s visit to Dr. Zsigmond that day, prior to the
accident, was largely with respect to her application for CPP disability
benefits.

[28]        
Dr. Zsigmond authored a report dated June 10, 2009, supporting Mrs.
Johal’s claim for CPP disability benefits. In the report, he diagnosed her as
suffering from:

Bilateral cystic and calcific
tendinitis of rotator cuff tendons and secondary osteoarthritis both shoulders.
Bilateral impingement syndrome.

[29]        
With respect to physical findings and functional limitations, he wrote:

Since her shoulders started to bother her (2005 – 2006) while
working at Vavenby Mill her shoulder joints started to have progressive limited
function becoming progressively disabled and incapable to hold jobs for longer
periods of time.

She had to quit her housemaid job
in Cache Creek. At present beside impingement and calcific tendonopathy, she
has bilateral proven osteoarthritis with ESR of 43 (May 15 2009) in spite of
multiple cortisone injections in her joints.

[30]        
With respect to her prognosis, he wrote:

Very poor.

This lady is losing her
shoulders’ functions progressively at present. Moderate to severe limitation
and becoming “frozen shoulder” and most likely will become totally
incapacitated.

[31]        
Dr. Wade, a rheumatologist, conducted two independent medical
examinations (“IME”) of Mrs. Johal – one in September 2010 and the other in
July 2011.

[32]        
Dr. Wade’s reports were filed and he was cross-examined on them. I found
his evidence to be fair and balanced. Where his evidence may differ from that
of Dr. Zsigmond, I prefer the evidence of Dr. Wade. He thoroughly reviewed all
of Mrs. Johal’s medical records and is a specialist in this field. He concluded
that, prior to the motor vehicle accident, Mrs. Johal had “significant
musculoskeletal problems.” Specifically, he indicated that she suffered from:

1)    Bilateral
shoulder rotator cuff tendinitis in both shoulders;

2)    Problems in the
right upper extremity with the suggestion of complex regional pain syndrome;
and

3)    Underlying
degenerative arthritis of the cervical, thoracic and lumbar spine.

[33]        
Whether and how significantly these pre-existing medical conditions
impacted Mrs. Johal’s daily life prior to the accident was the source of some
controversy in this trial.

[34]        
Mrs. Johal, her husband, her daughter and a family friend, all testified
about her functioning in daily life. They were generally consistent that Mrs.
Johal had limitations and pain prior to the accident that worsened after the
accident. They generally identified her pre-motor vehicle accident complaints
of pain as being in the shoulders and arm (right more than left), with some
sleeping difficulties. Occasional neck pain was identified in conjunction with
the shoulder pain. Her daughter recalled Mrs. Johal suffering from occasional
headaches and dizziness.

[35]        
The witnesses reported that Mrs. Johal could no longer work at her
employment, that she needed some assistance with activities at home, and began
to be less social and less independent in the months prior to the accident. They
all felt these limitations increased after the accident.

[36]        
I found the evidence of Mrs. Johal’s family members and friend to be, on
the whole, credible. While some inconsistencies exist in their evidence and the
information provided by Mrs. Johal on her CPP application, I find they appeared
to be doing their best to recall Mrs. Johal’s complaints and level of
functioning at certain points in time – a) before the CPP disability
application, b) after the application, but before the motor vehicle, and then
c) after the accident. I recognize that slicing the timeframes so thin in
trying to recall exact limitations and complaints would be no easy task.
Precision cannot be expected.

[37]        
Mrs. Johal’s CPP application of April 30, 2009 portrays a more negative
picture of her pre-accident health and functionality. The following extracts
are noteworthy:

State the illness or impairments that prevent you from
working. If you do not know the medical names, describe in your own words.

Severe pain in right shoulder, arm, wrist & hand.
Numbness in right hand. Lesser pain, but also left side – use this less as am
right handed.

Describe how these illnesses or impairments prevent you from
working.

Any use of right hand, wrist, shoulder creates excessive
pain and limited movement.

If you have other health-related conditions or impairments,
please describe them.

None.

If you had to stop other activities (such as hobbies, sports
or volunteer work), please explain and give dates activities ceased.

No longer able to bake/cook.

Explain any difficulties/functional limitations you have with
the following:

Sitting/Standing (How long?)

Pain in right arm when sitting, leaning excessively
forward helps.

Walking (How long and how far?)

Pain when walking causes dizziness. Can only walk as far
as room to room.

Lifting/Carrying (How much and how far?)

Cannot lift anything with right hand, not even a coffee
cup.

Reaching

Limited reach – half of a full extension.

Concentrating

Pain makes thinking difficult at times.

Bending (How much?)

None

Sleeping

Pain makes sleeping inconsistent, often need mediation.

Personal needs (Eating, washing hair, dressing etc.)

Difficulty with most personal care – husband has to help.

Breathing

When excessive swelling in shoulder & chest,
difficulty breathing – had to go to hospital twice.

Driving a car (How long?)

Can no longer drive too much pain to move steering
wheel/should. check etc.

Household maintenance (Cooking, cleaning, shopping and
similar activities)

Husband must now do all of this – I cannot.

Using public transportation

Frequent stop, variable speeds makes taking bus difficult
– meds. sometimes make me sleepy – have missed stops due to falling asleep
while on the bus.

Provide the following information about the physician who
will be completing your medical report.

What were the reasons for your visits?

Asking for more pain medication (stronger). Difficulty
sleeping.

[38]        
The information provided by Mrs. Johal in this application portrays her
pre-accident limitations as more debilitating than her evidence and that of the
civilian witnesses. I am mindful that Mrs. Johal did not fill out this form
herself. She provided information to a family friend, who documented her
answers. The questions were specific and, in Mrs. Johal’s mind, reflected how
she felt at the time. She testified that her symptoms would fluctuate, but she
did not report those fluctuations to CPP.

[39]        
On the whole of the evidence, I am satisfied that Mrs. Johal exaggerated
some of her limitations in the CPP application and to Dr. Zsigmond in support
of her application. This is not, I find, deliberate deceit, but a perhaps
natural human tendency to present her case for benefits in the strongest
possible light. What is clear from her application, however, is that she was
experiencing severe pain in her right shoulder, arm, wrist and hand. She
experienced numbness in the right hand. These afflictions impacted her sleep
and caused dizziness.

[40]        
I find that Mrs. Johal, in the months leading up to the accident, was experiencing
a decline in her functioning at home, recreationally and socially. Some days
would be worse than others. Medication and injections would sometimes help, but
she was generally disabled from regular activities from her shoulder, right
upper extremity and arm pain on a consistent basis. By April of 2009, her pain
was such that she could not maintain employment and needed help with activities
at home. She was seeking more pain medication. Occasionally, she would suffer
headaches, dizziness and neck pain. She was receiving treatment from Dr.
Navratil and had begun a physiotherapy program that would hopefully see some
benefit in the future.

D. THE ACCIDENT

[41]        
Mr. Johal was driving his vehicle through a parking lot when it was
struck by the defendant’s vehicle. Mrs. Johal was the front seat passenger. She
wore a seatbelt, but had the shoulder belt tucked under her right shoulder and
arm, due to her shoulder problems.

[42]        
The defendant’s vehicle struck the front driver’s side of the Johal
vehicle. Neither vehicle was travelling over the posted speed limit of 10
kilometres per hour. Mrs. Johal did not see the defendant’s vehicle before the
collision. Paramedics later removed Mrs. Johal from the vehicle by stretcher
and took both of the Johals to the hospital.

[43]        
The Johal vehicle was towed from the scene. Photographs depict damage to
the body of the vehicle above the front driver’s side wheel well. The cost to
repair the vehicle was $2,315.36.

[44]        
Mr. and Mrs. Johal both testified that upon impact, Mrs. Johal’s body
moved forward inside the vehicle to the point that her mid-forehead made
contact with the rear-view mirror, causing swelling and bruising to her left
eye, and swelling and a small cut to her forehead.

[45]        
Counsel for the defendant urges me to use caution in accepting this
evidence due to:

1)    the low impact
and nature of the collision from the left hand side of the vehicle;

2)    a common sense
inference that Mrs. Johal’s body could not have moved in the manner she
describes; and

3)   
nursing notes from the hospital where Mrs. Johal is recorded to say that
her face struck the “window” and a notation indicating lack of visible
bruising/lacerations.

[46]        
There is no evidence before me regarding collision and/or likely body
mechanics with respect to a collision of this nature, so I am unable to accede
to the first two submissions. In considering the third, I note Mrs. Johal’s
first language is not English. I put no weight upon her use of the word
“window” instead of the word “mirror”. She told the nurse her face struck
something inside the vehicle.

[47]        
I accept that Mrs. Johal did strike her head on the rear-view mirror.
She and her husband both testified this occurred. Injuries consistent with such
an impact were observed by all of the civilian witnesses. Kamel Johal, her
daughter, made a note that day of those injuries. Dr. Zsigmond also observed those
same injuries. He says that he observed them on June 10, 2009, but as I
indicated earlier, I am satisfied that he is mistaken about the day. It is
likely that he observed the injuries at her next appointment, some five days
later.

[48]        
I have specifically not relied upon a doctor’s note on the day of the
accident that both counsel urge me to accept as supportive of their respective
positions. The doctor’s note can be interpreted as either he/she observed an
injury to Mrs. Johal’s face or he/she noted no injury to her face. Neither
party called the doctor as a witness to clarify, so I am unable to put any
weight on this evidence.

E. THE PLAINTIFF’S
POST-ACCIDENT CONDITION

[49]        
At the hospital, Mrs. Johal complained of dizziness, headaches and
nausea. An x-ray of her cervical spine showed findings similar to the x-ray conducted
on June 4, 2009.

[50]        
Mrs. Johal was released from the hospital later that same day with a
diagnosis of “mild whiplash – C spine”.

[51]        
Ms. Basran drove the Johals home from the hospital. In addition to
observing the discolouration of her left eye and a bump on her forehead, Ms.
Basran recalled Mrs. Johal complaining of back and neck pain and a headache.

[52]        
The Johals’ daughter saw them once they arrived home. She also noted the
discolouration and swelling of her left eye and a bruise on her forehead. She
noted her mother was very upset and complaining of dizziness and nausea.

[53]        
Mrs. Johal’s pain, dizziness, nausea and headache continued, resulting
in another attendance at the hospital on June 12, 2009. A CT scan that day
showed benign bilateral basal ganglial calcifications in her brain. These
calcifications pre-dated the accident.

[54]        
She next attended the hospital on June 18, 2009. While undergoing a
previously ordered ultrasound of her right shoulder, Mrs. Johal began to
experience dizziness. She was taken to the emergency department. The doctor’s
diagnosis there indicates “MVA – soft tissue injuries” and “tenderness
diffusely bilateral chest, shoulders & neck, decrease range of motion”.

[55]        
Mrs. Johal continued to see her family physician in June. Dr. Zsigmond
noted complaints with respect to her head, neck, shoulders, upper extremities,
upper back and chest.

[56]        
Commencing in July 2009, Mrs. Johal’s pain became more widespread. Dr.
Zsigmond noted pain complaints in multiple areas, including not only her
shoulders, upper extremities and her neck, lower back, knees, but also now her legs
and hips.

[57]        
Mrs. Johal continued with physiotherapy, ultimately receiving 88
treatments between July 14, 2009 and November 15, 2011.

[58]        
Mrs. Johal saw Dr. Navratil on August 25, 2009. At that time, she
complained of pain in her left hip and left lower extremity. Dr. Navratil
ordered, among other things, a total body bone scan.

[59]        
When Mrs. Johal saw Dr. Navratil again on November 12, 2009, he noted
that she was complaining of “pain all over.”

[60]        
On December 3, 2009, Mrs. Johal saw Dr. Navratil following the bone
scan. The bone scan results led him to rule out a diagnosis of rheumatoid
arthritis. At that visit, Mrs. Johal complained of pain in multiple areas of
her body, with particular emphasis on her right shoulder. Dr. Navratil felt
that her right shoulder tendinitis was developing into frozen shoulder.

[61]        
Mrs. Johal saw Dr. Navratil again on February 19 and May 6, 2010.

[62]        
On September 1, 2010, Mrs. Johal travelled to Vancouver for the IME. Dr.
Wade interviewed and examined Mrs. Johal for approximately two hours in total. Dr.
Wade noted that Mrs. Johal’s number one complaint that day was “pain in the
right neck, right head and right shoulder” with lesser complaints on the left
side. She identified her second complaint as “pain in the left lateral thigh”,
and her third as “numbness in the right hand,” also indicating that she had
some numbness in the left side.

[63]        
Mrs. Johal continued with physiotherapy and commenced personal training
as suggested by Dr. Wade. She continued to see Dr. Navratil periodically. As
time went on, her symptoms worsened and became more widespread.

[64]        
An MRI on June 3, 2011 showed an incomplete tear of a tendon in her right
rotator cuff. Dr. Navratil recommended that she see an orthopaedic surgeon. In
March of 2012, the surgeon recommended only conservative treatment. Cortisone
injections continued.

[65]        
Mrs. Johal saw Dr. Wade again on July 26, 2011 for an updated IME. Mrs.
Johal reported that she was considerably worse all over. Her number one
complaint was pain in the right side of her neck, her right shoulder and into
the right side of her head. She had lesser complaints about the left shoulder.
Her second complaint was that of right, more than left, knee pain. Her third
chief complaint was pain in the left lumbar area, radiating to the left leg.

[66]        
Dr. Navratil reassessed Mrs. Johal on November 14, 2012. At that time,
her chief complaint was pain in her right shoulder, upper arm, right upper and
posterior neck. Dr. Navratil noted that the cortisone injection he administered
in March of 2012 moderately helped Mrs. Johal until a couple of months ago.
Following his examination, his impression was that she was suffering from right
shoulder rotator cuff tendinitis and chronic regional myofascial pain of right
upper back and neck.

[67]        
Mrs. Johal testified that her physical condition and limitations were made
worse by the motor vehicle accident. To date, she continues to have neck,
shoulder and upper back pain. She has headaches of a more severe and frequent
nature than she experienced before the accident. She suffers from lumbar back
and lower body pains that she did not have prior to the motor vehicle accident.

F. CAUSATION

[68]        
The plaintiff must establish, on a balance of probabilities, that the
defendant’s negligence caused or materially contributed to her injuries. The
defendant’s negligence need not be the sole cause of the injuries so long as it
is part of the cause beyond the de minimis range. Causation need not be
determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R.
458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9.

[69]        
The primary test for causation is the well-known “but for” test. The
question is: but for the defendant’s negligence, would the plaintiff have
suffered the injury? This test recognizes that compensation for negligent
conduct should only be made where a substantial connection between the injury
and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007
SCC 7 at paras. 21-23.

[70]        
In special circumstances, the “but for” test proves unworkable. A
“material contribution” test can be used to resolve this question: Clements
v. Clements, 2012 SCC 32.

[71]        
Causation must be established on a balance of probabilities before
damages are assessed: Blackwater v. Plint, 2005 SCC 58 at para. 78:

[78]      It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort. The rules of causation consider generally whether "but
for" the defendant’s acts, the plaintiff’s damages would have been
incurred on a balance of probabilities. Even though there may be several tortious
and non-tortious causes of injury, so long as the defendant’s act is a cause of
the plaintiff’s damage, the defendant is fully liable for that damage. The
rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway:

[72]        
Tortfeasors must take their victims as they find them, even if the
plaintiff’s injuries are more severe than they would be for a normal person (the
thin skull rule). However, the defendant need not compensate the plaintiff for
any debilitating effects of a pre-existing condition which the plaintiff would
have experienced in any event (the crumbling skull rule): Athey at
paras. 32-35.

[73]        
The plaintiff submits that her present condition is as a result of
non-tortious contributing causes (her prior bilateral shoulder tendinitis) and
the soft tissue injuries caused by the defendant’s negligence. She was
susceptible to injury because of her pre-existing conditions. The accident
aggravated those pre-existing conditions and caused new ones.

[74]        
The defendant agrees that Mrs. Johal did suffer some soft tissue
injuries in the accident, but submits that that they were superimposed on a disabling
and progressive symptomatic condition. She is, the defence argues, seeking to
be put in a better position than she would have been in had the accident not
occurred.

[75]        
Applying the principles outlined above to this case, I find that Mrs.
Johal had the following pre-existing conditions at the time of the accident:

1)    bilateral
shoulder rotator cuff tendinitis in both shoulders, causing particular pain and
decreased mobility in her right shoulder;

2)    complex regional
pain syndrome in her right upper extremity causing pain in her right neck and
shoulder, occasional headaches, dizziness and numbness in her right arm and
hand; and

3)   
underlying degenerative arthritis of the cervical, thoracic and lumbar
spine.

[76]        
The degenerative processes affecting her right shoulder and the complex
regional pain syndrome were underway prior to the accident to the extent she
could no longer work outside the home, and her home life was affected in
material ways.

[77]        
I accept the opinions of Dr. Wade. There is no expert evidence to the
contrary. The few inconsistencies pointed to by the defence are, in my view,
minor and do not impact the reliability of his evidence. He was a thorough,
balanced and fair witness.

[78]        
In his October 1, 2010 report, Dr. Wade itemized Mrs. Johal’s injuries
and complaints as follows:

As the direct result of a motor vehicle accident of June 10,
2009 Mrs. Johal sustained a probable moderate musculoligamentous injury of the
cervical spine and lumbar spine. … She has had complaints including neck pain,
headaches, increasing right shoulder and upper extremity pain and low back
pain.

At the time of my assessment of September 1, 2010 Mrs. Johal
had symptoms of mechanical neck pain. … Radiographs of the cervical spine which
had been done a few days prior to the motor vehicle accident of June 10, 2009
as well as on the day of the accident showed that there were radiographic
changes of underlying degenerative arthritis of the cervical spine. In my
opinion, the symptoms of mechanical neck pain are directly related in part to
the motor vehicle accident of June 10, 2009 although part of the problem may be
pre-existing.

At the time of my assessment of September 1, 2010 Mrs. Johal
had problems with pain and decreased range of the right shoulder in keeping
with a frozen shoulder. It is clear that she had some problems prior to the
accident of June 10, 2009 although it is likely that as a result of the pain
and disability from the accident of June 10, 2009 that these symptoms are
somewhat worse and have been slower to recover.

At the time of my assessment of September 1, 2010 Mrs. Johal
had findings of pain localized to the right wrist and hand. These symptoms and
findings are in keeping with a complex regional pain syndrome. … It appears
that she may have had some of these symptoms prior to the accident of June 10,
2009 but her problems with right upper extremity pain distally into the hands
have been more severe and persistent. Typically complex regional pain syndrome
can be associated with a frozen shoulder. As she has had neck and right
shoulder complaints that have been aggravated by the accident of June 10, 2009
it is likely that the complex regional pain syndrome in the right upper
extremity is more significant than if she had not had the accident of June 10,
2009.

At the time of my assessment of
June 10, 2009 [sic] Mrs. Johal had symptoms in keeping with mechanical back
pain. … It is likely that the mechanical back pain in part is related to the
accident of June 10, 2009 and that her progressive disability has resulted in a
deconditioned state.

[79]        
In his July 26, 2011 report, Dr. Wade opined:

The global clinical picture of Mrs. Surinder Johal is
complex. It would be my opinion that she had significant musculoskeletal
complaints prior to a motor vehicle accident of June 10, 2009. As a result of
the accident of June 10, 2009 she had an aggravation of neck and back
complaints likely because of a mild soft tissue injury of the cervical and
lumbar spine. Over time she has had persistent and increasing problems in a
number of areas.

It is unclear to me whether her
right shoulder pathology [tear] is any way directly related to the motor
vehicle accident of June 10, 2009; however her global pre-existing
musculoskeletal complaints have been aggravated by the soft tissue injury of
the cervical and lumbar spine as a result of the accident of June 10, 2009.

[80]        
Dr. Wade fairly conceded that it is difficult to sort out the symptoms
that pre-dated the accident and those that could be directly attributed to the
accident. In this regard, he wrote:

In my opinion it would be a blend
of both pre-accident and accident type problems that have resulted in her
current state of pain and disability.

[81]        
He further opined that if she would not have had the accident of June
10, 2009, and had been treated with appropriate aggressive physiotherapy to her
right shoulder and upper extremity, that Mrs. Johal would have likely improved
over time. I accept this opinion.

[82]        
Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal
has proven, on a balance of probabilities, that the defendant’s negligence
caused mild to moderate soft tissue injuries to her cervical and lumbar spine.
These injuries caused aggravation of her pre-existing conditions and caused new
conditions in her lumbar spine and lower body.

G. DAMAGES

(a)      Non-pecuniary Damages

[83]        
The plaintiff seeks non-pecuniary damages between $50,000 to $75,000.00.
In support, she has provided the following cases: Midgley v. Nguyen,
2013 BCSC 693; Athey v. Leonati, [1996] S.C.R. 458; Bradley v. Groves,
2010 BCCA 361; McArthur v. Hudson, 2013 BCCA 375; Vagramov v. Zipursky,
2010 BCSC 414; Dial v. Grewal, 2010 BCSC 759; Kuskis v. Tin, 2008
BCSC 862; and Ho v. Dosanjh, 2010 BCSC 845.

[84]        
The defendant seeks an award between $6,000.00 and $15,000.00 and has
provided the following cases in support: Price v. Kostryba, [1982]
B.C.J. No. 1518, 70 B.C.L.R. 397; Anderson v. Minhas, 2011 BCSC 203; Pardo
v. Chen, 2012 BCSC 1525; Johannson v. National Car Rental (Canada) Inc.,
2008 BCSC 1873; and Khodadoost v. Wittkamper, 2013 BCSC 1717.

[85]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases. I am mindful that other authorities, though helpful,
serve only as a rough guide. Each case depends on its own unique facts: Trites
v. Penner, 2010 BCSC 882 at paras. 188-189. I have read and considered all
of the authorities provided by both parties.

[86]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

[46]      The inexhaustive list of common factors cited in 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, 2005 BCCA 54).

[87]        
Mr. Justice Barrow explained how pre-existing conditions can be relevant
to an assessment of damages in two different ways in Johannson v. National
Car Rental (Canada) Inc., 2008 BCSC 1873 at paras. 36 and 37:

[36]      All the plaintiff must show is that the defendant’s
negligence was a contributing cause to the injuries for which compensation is
sought. I am satisfied that the plaintiff’s difficulties with her upper back
and neck following the accident were caused or contributed to by the
defendant’s negligence, and thus she is entitled to compensation for that. That
is not to say that the pre-existing condition is irrelevant to the matter; it
is relevant. Not because it renders the defendant not responsible for the injuries,
but rather because it may affect the measure of damages. It may do that in one
or two ways. As was pointed out in Athey, the plaintiff is entitled to
be compensated to the degree necessary to put her in her pre-accident condition
or position, not in a better position. If, in relation to the pre-existing
condition, there was a measurable risk that it would have detrimentally
affected the plaintiff in the future, then it may be that it is appropriate to
reduce the award of damages to reflect that risk.

[37]      The second way in which
a pre-existing condition can affect the quantum of damages is that it may cause
an individual to experience greater pain as a consequence of injuries sustained
or pain that lasts longer than would be the case with someone who does not have
a pre-existing condition. To the extent that is so, however, it is not a basis
upon which to reduce the amount of compensation, but rather to increase it to
reflect the increased pain and/or duration of the consequences of the accident.

[88]        
The defendant’s negligence caused soft tissue injuries to Mrs. Johal’s
neck and lumbar spine. Mrs. Johal’s situation is complex in that those injuries
both aggravated her pre-existing conditions relating to her right shoulder,
upper extremity and neck and created new conditions in her lower body. As a
result of her pre-existing conditions, she is entitled to be compensated to the
degree necessary to put her in her pre-accident condition or position, not a
better position.

[89]        
There was a measurable risk that the pre-existing conditions to her
right shoulder and right upper extremity would have detrimentally affected the
plaintiff in the future, but not to the extent she is detrimentally affected
now.

[90]        
Clearly, Mrs. Johal’s life was detrimentally affected by her shoulder
and upper extremity conditions prior to the accident. She experienced daily
pain that impacted her work, her ability to attend her Church as often as she
would like, her ability to visit her family and her general enjoyment of life.

[91]        
Just two months prior to the accident, she had begun a physiotherapy
program and was continuing to see Dr. Navratil in the hope that her prognosis
would improve. However, the accident occurred shortly after her physiotherapy
efforts had begun. As a result of the injuries caused by the accident, Mrs.
Johal has experienced a worsening of her symptoms. They have also become more
widespread throughout her body. Her functionality at home, with her family and
socially, has declined from her pre-accident state and continues today.

[92]        
I find she would have been disabled to some extent by her right shoulder
and upper extremity problems if the accident had not occurred. However, the
injuries from the accident have made her symptoms worse, slower to recover and
have had a more significant impact on her life. In the unique circumstances of
this case, I find that the appropriate award for non-pecuniary damages is
$35,000.00.

(b)      Special Damages

[93]        
It is well established that a person injured by another’s negligence is
entitled to recover the reasonable out-of-pocket expenses he or she incurred as
a result.

[94]        
The plaintiff seeks special damages in the amount of $5,041.06 as set
out in exhibit 6. The breakdown of that amount is as follows:

[95]        
The defendant submits that only $2,106.52 in special damages ought to be
awarded in this case. That amount is broken down as follows:

[96]        
With respect to physiotherapy expenses, the defendant submits that the
amount claimed by the plaintiff ought to be reduced with respect to two items:

1)    the Cloverdale
physiotherapy expenses – $75.00; and

2)    physiotherapy
treatments beyond September 17, 2011.

[97]        
In this regard, the defendant submits that there was no evidence led
with respect to the necessity of the Cloverdale physiotherapy appointments, and
there was no medical need or recommendation for physiotherapy beyond September
17, 2011.

[98]        
With respect to the claim for prescription medications, the defendant
submits that no award should be made, pointing to evidence that the plaintiff
was taking medications at the time of the accident for her pre-existing conditions.
The defendant submits that Mrs. Johal failed to call any evidence establishing
the medication claimed was prescribed or taken as a result of the injuries she
suffered in the motor vehicle accident.

[99]        
Finally, with respect to the plaintiff’s claim for personal training and
rehabilitation services, the defendant submits that no award ought to be made.
The defendant asserts that Dr. Wade recommended such a program to treat Mrs.
Johal’s frozen shoulder. This condition pre-dated the accident and, therefore,
should not be awarded.

[100]    
I observe that in his October 1, 2010 report, Dr. Wade recommended that
Mrs. Johal have “aggressive regular physiotherapy under the guidance of someone
with expertise in right shoulder pathology”. In addition, he recommended:

…increasing global
cardiopulmonary fitness exercise program that would include walking, stationary
cycling, a water and gym program… If she can have an intensive rehab program of
her right upper extremity in concert with an intense fitness exercise program…,
she would likely have the best optimal outcome.

[101]     Mrs. Johal
followed those recommendations. She attended at regular physiotherapy sessions
and engaged a trainer and rehabilitation specialist to assist with her general
conditioning. In my view, she is entitled to recover physiotherapy and training
expenses, except the physiotherapy expenses incurred in Cloverdale in the
amount of $75.00. There is an absence of evidence with respect to those
expenses. The training recommended by Dr. Wade was with respect to her overall
condition, which was caused, in part, by the defendant’s negligence.

[102]    
With respect to the claim for prescription medications, Dr. Zsigmond
explained that they were, generally speaking, pain and anti-inflammatory
medications. No details were provided with respect to what medications or doses
of medications were required before the accident, and what were required as a
result of injuries suffered in the accident. However, Mrs. Johal testified that
her pain and symptomology increased and became more widespread following the
accident, and continues to this day. Dr. Wade opined that her ongoing symptoms
are, ”a blend of both pre-accident and accident-type problems.” In these
circumstances, I find that a fair and reasonable amount to award for prescription
costs would be 50 percent of the amount claimed, or $283.87.

[103]    
I award the following amounts for special damages:

H. DECISION

[104]     In
summary, the amounts awarded under the heads of damages are as follows:

I. COSTS

[105]    
The plaintiff is entitled to her costs pursuant to Rule 15-1 of the Supreme
Court Civil Rules.

“S.A. Donegan J.”

DONEGAN J.