IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140204

Docket: M143353

Registry:
New Westminster

Between:

Pearl Kharenn
Pacheco

Plaintiff

And

Anthony J.
Antunovich and Ante Antunovic

Defendants

Before:
The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

Introduction

[1]            
This is an action by the plaintiff for damages arising out of a motor
vehicle accident. The plaintiff claims that she suffered injuries and losses as
a result of a very minor collision in the late afternoon of February 8, 2012.
For the reasons that follow, the plaintiff’s claim is dismissed. I find that
the plaintiff has failed to prove on a balance of probabilities that she was
injured as a result of the collision.

Background

[2]            
The plaintiff is a 46 year old registered nurse. At the time of the
collision, she was employed at WorkSafeBC as a “return to work” specialist, a
job requiring mainly desk and computer work.

[3]            
Ante Antunovic was the registered owner of the other vehicle (the
“defendant vehicle”). Anthony J. Antunovich was the driver of the defendant
vehicle at the time of the collision (the “defendant driver”).

[4]            
At around 4:00 p.m. on February 8, 2012, the plaintiff was driving
her vehicle in bumper-to-bumper rush hour traffic. The roads were wet. She was
about to enter a controlled intersection when the traffic light turned amber.
The plaintiff stopped suddenly and her vehicle was bumped into by the defendant
vehicle. I find as a fact that the defendant vehicle was travelling at a speed
of no more than two kilometres per hour at the time of the collision. As a
result of the contact – described by the defendant driver as “not
forceful” – the plaintiff’s rear bumper sustained two very small scratches
which cost $1,041 to repair and repaint. There was no damage repair work done
to the front bumper of the defendant vehicle.

[5]            
The evidence of the plaintiff was that she was
completely stopped in busy traffic and was hit from behind. She heard a bang
and felt a pulling from her seatbelt. She moved forward in her seat but was
restrained by her seatbelt. She did not hit anything, nor was she hit by
anything inside the vehicle. She thought her car was pushed forward but she did
not know how far. She thought she was pushed across the stop line. She exited
her car at the scene and inspected the damage. She agreed to move her car to a nearby
parking lot in order to clear the intersection and exchange information with
the defendant driver.

[6]            
Although she was “in shock”, she said she felt no pain
while at the scene or in the parking lot. About an hour later, she said
she felt pain in her lower back and right hip and went to see a doctor at a
nearby walk-in clinic. She said her neck started to feel sore that evening and
her lower back pain did not subside.

[7]            
Prior to the collision, the plaintiff underwent surgery on both her
shoulders as a result of two separate incidents, one in each of 1999 (right
shoulder) and 2006 (left shoulder). Because of these previous injuries, the
plaintiff receives at least $430 per month in the form of long-term disability
benefits for the rest of her life.

[8]            
The plaintiff claims that she suffered aggravation of her previous
injuries as well as persistent pain in her lower back and right hip area as a
result of the collision. The plaintiff asks the court for the following relief,
excluding costs and disbursements:

[9]            
Liability for this minor rear-end collision in stop-and-go traffic has
been admitted.

Credibility of the Plaintiff

[10]        
The credibility of the plaintiff is very important in a
case like this where the foundation for most of the plaintiff’s complaints is
subjective. Therefore, it is prudent for me to deal with the issue of
credibility.

[11]        
The plaintiff was cross-examined on her medical records for the period
before the collision. It is clear from those records that the plaintiff
attended her doctor on a very regular basis in the months and years preceding
the collision. Although the plaintiff testified that she was active in sports
before the collision, her medical records seem to indicate that she visited her
doctor in relation to ongoing pain and repercussions she claimed she was still suffering
from her previous injuries. In fact, one of these visits in which she complained
of this type of pain occurred about a month before the collision.

[12]        
Another result of the cross-examination of the plaintiff on her medical
records was the fact that she previously complained of weight gain and hair
loss in September 2010. This is exactly one of the claims she alleges in this
action as a result of the collision.

[13]        
Further, throughout the trial and at five or ten minute intervals, the
plaintiff would stand up from her seat and continuously stretch so that I could
“see” the pain she experiences when she sits in one position for a period of
time.

[14]        
In Jezdic v. Danielisz, 2008 BCSC 1863,
Sigurdson J. focused on practicality when considering the reasonableness of a
witness’s testimony in the circumstances of the case. He said, in relevant part:

[25]      It is perhaps appropriate to refer
to Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171 (B.C.C.A.) at p. 174:

…In short, the
real test of the truth of the story of a witness in such a case must be its
harmony with the preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable in that place and in
those conditions. Only thus can a Court satisfactorily appraise the testimony
of quick-minded, experienced and confident witnesses, and of those shrewd
persons adept in the half-lie and of long and successful experience in
combining skilful exaggeration with partial suppression of the truth.

[26]      The circumstances in that case may
be different than in the case at bar, but in assessing credibility, it is
important to consider whether the evidence of a witness accords with the
circumstances that are proven on a balance of probabilities.

[27]      Is the plaintiff’s evidence in
harmony with the probabilities a practical person would readily recognize as
reasonable in these circumstances?

* * *

[41]      I have
concluded that on all the evidence that plaintiff has not discharged the burden
on her to prove that she has suffered any injury in this accident. I find the
plaintiff’s evidence to be exaggerated and significantly inconsistent both
internally and with facts that I find have been established such that I have
serious reservations about her credibility to the extent that I can not rely on
it alone to determine whether the plaintiff has discharged the burden on her to
prove that she was injured in this accident.

[15]        
I agree with his remarks. Courts must be
vigilant and separate the subjective evidence from the objective evidence. In
doing so, trial judges are urged to look carefully at the plaintiff’s evidence
and cull out that which is equivocal or tainted by subjectivity or
inconsistency.

[16]        
Counsel for the defence submits that if the plaintiff
has not met the threshold of providing objective evidence of her injuries, then
her claim must be dismissed. If she has met the threshold but the weight of the
evidence is suspicious due to exaggeration, then the court is entitled to consider
that in assessing damages.

[17]        
In support of his position, counsel for the defence
reminds me that courts are asked to follow the words of McEachern C.J.S.C. (as he
then was) in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 398-99 (S.C.),
when assessing the plaintiff’s recollection of physical pain:

Perhaps no injury has been the subject of so
much judicial consideration as the whiplash. Human experience tells us that
these injuries normally resolve themselves within six months to a year or so.
Yet every physician knows some patients whose complaint continues for years,
and some apparently never recover. For this reason, it is necessary for a court
to exercise caution and to examine all the evidence carefully so as to arrive
at fair and reasonable compensation. Previously decided cases are some help
(but not much, because obviously every case is different).

In Butler v. Blaylock, decided 7th October
1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument
that a defendant is often at the mercy of a plaintiff in actions for damages
for personal injuries because complaints of pain cannot easily be disproved. I
then said:

I am not stating
any new principle when I say that the court should be exceedingly careful when
there is little or no objective evidence of continuing injury and when
complaints of pain persist for long periods extending beyond the normal or
usual recovery.

An injured person is entitled to be fully
and properly compensated for any injury or disability caused by a wrongdoer.
But no one can expect his fellow citizen or citizens to compensate him in the
absence of convincing evidence – which could be just his own evidence if
the surrounding circumstances are consistent – that his complaints of pain
are true reflections of a continuing injury.

[18]        
The decision in Price was cited with
approval in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 at para. 15
(C.A.). In that case, the Court of Appeal went on to state:

So there must be
evidence of a “convincing” nature to overcome the improbability that pain will
continue, in the absence of objective symptoms, well beyond the normal recovery
period, but the plaintiff’s own evidence, if consistent with the surrounding
circumstances, may nevertheless suffice for the purpose.

[19]        
I did not find the plaintiff to be a very credible witness at
trial. Her testimony was not reasonable within the circumstances of the very
minor “fender bender” in this case. I find that she had a strong penchant for
gross exaggeration and, as such, I do not accept her evidence.

Causation

[20]        
The plaintiff bears the burden of proving each element of her claim on a
balance of probabilities, including showing that the collision caused her
injuries.

[21]        
I find that the plaintiff has not proven causation of her injuries on a
balance of probabilities. The preponderance of the evidence before me does not
disclose objective evidence that the plaintiff suffered any injury as a result
of the collision. In this regard, I am entirely persuaded by the submissions of
the defence:

The Plaintiff provided no damage information
or expert opinion on the force of the collision.

The Plaintiff provided no biomechanical
opinion on how the force of this collision was capable of causing injury to the
Plaintiff’s low back and right hip.

The Plaintiff provided no expert opinion on
what the injury to the muscles, ligaments or vertebral or joint structures
actually is.

There was no scan or radiological report entered
into evidence describing an actual injury. The closest the Plaintiff came was
the CT scan of May 26, 2012 showing among other things that the Plaintiff had a
mild degenerative lumbar spine and fluid in the bursal sac which Dr. Williamson
admitted was not always caused by trauma. He said it was caused by muscle spasm
in the region. But there is no link between any muscle spasm, which Dr.
Williamson explained as the muscle being in a sustained contraction state, and
trauma. The only connection between the pain complaints and the accident is a
temporal connection. The Defence submits a temporal connection is not enough
when there were three physicians called as experts in this case to prove
causation, which they failed to do.

This point is brought out more fully with
the evidence of Dr. Jaworski, who said in the conclusion to his report (p. 7)
that it is “plausible that the trauma of the MVA in question triggered this
mechanical back pain…”.

[Italicizing in
original.]

[22]        
I agree with the contention of the defence that
“plausible” is not sufficient to satisfy the plaintiff’s burden of proof that
the injuries claimed were caused by the collision on a balance of
probabilities.

Wage Loss and Loss of Future Earning Capacity

[23]        
In light of my findings above, it is not necessary for me to canvass
these heads of damages. Nevertheless, I wish to point out that the plaintiff’s
evidence about her wage loss is very exaggerated indeed. I agree with defence
counsel’s submissions:

The Plaintiff’s evidence was that she incurred
income loss as a result of taking days off work for headaches and pain and
taking shorter periods of time for physiotherapy and chiropractic treatments.

The Plaintiff said she used a combination of
vacation time and sick bank time for all her time off. She claims over
$12,000.00 in past wage loss. However, there was no actual income loss to her.
There was no evidence that the Plaintiff was required to repay her sick bank
time. Her evidence was that she wanted to replenish the time. There was no
evidence that the loss of sick bank time made any difference in her ability to
take further sick time if needed or affected her pension calculation or when
she would be able to retire. The repayment is strictly voluntary.

Moreover, the
loss of sick bank and vacation time must be viewed in the context of the
Plaintiff’s failure to mitigate her loss by banking “flex time” as described by
her co-worker Andrea Ram. The flex time could be banked for use later for
treatment absences.

[24]        
I also adopt the submissions of defence counsel in relation to the
plaintiff’s claim for loss of future earning capacity:

…the Plaintiff is not entitled to any
compensation for loss of capacity for the following reasons:

i)    Failure to prove permanent disability affecting her ability to
earn income;

ii)   Failure to provide a functional capacity evaluation that
demonstrates any actual decrease in the Plaintiff’s physical capacity. (There
was evidence of a pre-accident FCE which could have been used as a comparative
evaluation to her post-mva condition, but this was not done);

iii)  Failure to address
the obvious negative contingencies of chronic pre-existing pain in her
shoulders for which [she] is receiving a lifetime WCB pension for 12.2% overall
disability.

Conclusion

[25]        
I find that the plaintiff has failed to prove on a balance of
probabilities that she suffered any injury as a result of the collision. The
plaintiff’s action is therefore dismissed with costs.

“Romilly J.”