IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140312

Docket: M121357

Registry:
Vancouver

Between:

Shervin Mirsaeidi

Plaintiff

And

David Edward
Coleman

Defendant

Before:
The Honourable Madame Justice Harris

Reasons for Judgment

The Motor Vehicle Accident

[1]            
The plaintiff claims damages for injuries resulting from a motor vehicle
accident (the “MVA”) caused by the negligence of the defendant. The defendant
does not dispute his liability for the collision.

[2]            
The MVA occurred on March 29, 2010, when the defendant’s motor vehicle
rear ended the plaintiff’s motor vehicle on the Dollarton Highway on-ramp to the
Second Narrow Bridge, in North Vancouver.

[3]            
The plaintiff was stopped and waiting to merge into traffic when his
vehicle was hit by the defendant’s vehicle. The plaintiff did not hit his head
or body on impact. He did not have any cuts or bruises from the MVA.

[4]            
As a result of the MVA, the plaintiff’s vehicle was damaged: part of the
bumper was hanging down and the side of the vehicle was scratched.

[5]            
The vehicle’s air bags did not deploy at the time of the collision.

Background

[6]            
The plaintiff is a 27 year old systems engineering student at Simon
Fraser University.

[7]            
At the time of the MVA, the plaintiff was active in various sports and
outdoor activities, although his main interest has been soccer. He has played
at a competitive level in North Vancouver, Burnaby and Vancouver.

[8]            
Since the MVA, he has played soccer in the Vancouver Metro league for three
years, which is at the highest amateur level in the area.

[9]            
The plaintiff plays soccer all year round. During the period following
the MVA, in addition to playing competitively, he played for various teams on a
recreational basis. He also worked out regularly at a gym.

[10]        
The plaintiff was ranked close to the top of his league in soccer. He
played in division two of Vancouver Metro Soccer in 2010 and moved to division
one in 2011.

[11]        
The plaintiff moved to Ontario in September of 2013 to take a software
development co-op position at Blackberry, as part of his university program.

[12]        
He continued to play in division one until he moved to Ontario. In
Ontario he plays recreational soccer.

After the MVA

[13]        
The plaintiff testified that he was on his way to an examination at the
university at the time of the MVA. He stated that he felt some pain immediately
after impact, but, at the time, was preoccupied about not being late for the
examination.

[14]        
The plaintiff testified that he continued on to the university after
exchanging information with the defendant.

[15]        
He stated that later in the day, after he finished the examination, he
felt pulsing pain in his back, he had a stiff neck and a headache. He had
difficulty sleeping. The plaintiff testified that he had no pre-existing neck
or back pain.

[16]        
The following day he testified that he attended a walk in clinic, where
the physician recommended chiropractic treatments. Under cross examination he
agreed that the date of his first visit to the clinic may have been April 18,
2010, three weeks after the MVA. He said that this was because the pain was
“bothering” him but not “killing” him. He said he went to the doctor as the
pain kept coming back.

[17]        
The plaintiff testified that his back pain was the worst during the month
following the MVA. At that time, he had pain in his back approximately two to
three times a week. He stated that the pain lasted for one to three hours. He
said that the chiropractic treatments helped with the frequency of pain but did
not reduce the intensity of the pain in his back.

[18]        
He testified that that the chiropractic treatments also assisted with
his neck pain and that by the end of his treatments it was “almost perfect”.
Under cross examination, the plaintiff agreed it was fully healed within two to
three months after the MVA.

[19]        
He testified that, after the MVA, he continued to experience headaches
in the back of his head. He stated that he was getting about two headaches a
month, for which he would take extra strength Tylenol. He said that the headaches
decreased to once a month. He agreed that he complained to his physician in
2011 about right sided headaches as opposed to headaches in the back of the
head.

[20]        
Despite the MVA, the plaintiff continued to play competitive soccer, although
he said that he had pain and difficulty sleeping after he played. He managed
the pain with Advil.

[21]        
The plaintiff testified that he did not miss any school due to the MVA
and his grades were not adversely affected. However, he had back pain when he
studied for long periods.

[22]        
The plaintiff was referred by his family physician, Dr. Beheshti,
for physiotherapy. After some delay, he started physiotherapy in August of
2011. He said that the therapy and recommended stretching exercises helped with
the frequency of his lower back pain, which he described as a “pulsating pain”,
but it still did not reduce the intensity of the pain. He testified that, even after
the physiotherapy, he continued to have pain approximately two to three times
per month and the pain would last from two to three hours.

[23]        
The plaintiff’s physician subsequently recommended that he see a
kinesiologist, which he did commencing in August of 2012. The plaintiff stated that
the exercises recommended by the kinesiologist were “extremely helpful” as he
knew about soccer and the exercises were focussed on his particular needs. He
said that, as a result, he experienced less pain – about once a month.
According to the plaintiff, the intensity of the pain remained the same.

[24]        
Under cross examination, he agreed that he rated the intensity of his
pain for the kinesiologist as “2/10” in October of 2012.

[25]        
The plaintiff stated that he believed that his pain would be brought on
by playing soccer and studying for long periods.

[26]        
With respect to playing soccer, he testified that he did not get many
injuries playing soccer, apart from minor aches and pains. Under cross
examination, he stated that it is usually “overplaying” that hurts his back and
that most of the time he plays without pain.

[27]        
He testified that he has not experienced as much back pain since he has
moved to Ontario as he is only playing soccer recreationally. His headaches
have also improved.

[28]        
With respect to studying, the plaintiff testified that he needs to move
around and cannot sit for long periods. He stated that Blackberry has
accommodated this condition. The plaintiff expressed a concern that other
employers may not be so cooperative. He testified that he did not think that he
could work the 10 hours a day expected of certain employers in the software
industry.

Medical and other Evidence

Family Physician

[29]        
Dr. Beheshti was the plaintiff’s family physician. She first saw the
plaintiff regarding the MVA in November of 2010, about eight months after the
MVA.

[30]        
On examination, Dr. Beheshti noted that there was no tenderness in
his neck or lower back and his range of motion in the neck, back and legs was
normal. She diagnosed the plaintiff with mild soft tissue injuries to his back.

[31]        
She ordered an x-ray which showed that the plaintiff had a condition
known as bilateral L5 spondylolsis. She testified that this condition can be
genetic or caused by trauma and that the pain caused by this condition can
return with physical activity. She testified that, in the plaintiff’s case, the
condition “can come back any time he is overactive”.

[32]        
Dr. Beheshti testified that the MVA was the most likely cause of the
plaintiff’s soft tissue injury to his back. She agreed that she relied upon
what the plaintiff told her about his condition in coming to her opinion.

[33]        
Dr. Beheshti saw the plaintiff on five occasions since the MVA. The
plaintiff reported that his back pain was worse after playing soccer. Dr. Beheshti
testified that the plaintiff also reported right sided headaches, which she diagnosed
as migraines.

[34]        
She last saw the plaintiff in April of 2012, at which time his examination
was “normal”. She reported that he still complained of headaches and back pain.

[35]        
She concluded that the plaintiff will be able to overcome his pain with
exercise and physiotherapy.

Chiropractor

[36]        
Dr. Hafizi treated the plaintiff from May of 2010 to September of 2010
to decrease the pain and inflammation due to what he diagnosed as soft tissue
injuries to his back, shoulder and neck.

[37]        
Dr. Hafizi testified that the plaintiff reported to him that his neck
and back pain was getting “better” and that he “feels good”. The plaintiff also
reported some pain and stiffness, mainly after playing soccer.

Physiotherapist

[38]        
It is agreed that the plaintiff received 12 physiotherapy treatments
from a physiotherapist, Mr. Jabbary, from August of 2011 to October of
2011. Mr. Jabbary did not give evidence at trial.

Kinesiologist

[39]        
Mr. Karmi testified that he provided kinesiology services to the
plaintiff from August of 2012 to October of 2012. He recommended exercises to
strengthen and stretch the plaintiff’s muscles in his legs and back to improve his
range of motion. Mr. Karmi testified that the plaintiff reported to him a 70%
improvement in pain, with some continuing soreness.

Other Witnesses

[40]        
Two friends of the plaintiff, Amir Kassaisan and Mehdi Jalali, testified
as to what they observed about the plaintiff’s functioning after the MVA,
including the plaintiff having to stretch more when playing soccer and having
to change positions after sitting for extended periods. Mr. Jalali testified
that the plaintiff had reduced the amount of recreational soccer he played in
the summer.

[41]        
Under cross examination, Mr. Jalali testified that the plaintiff
was one of the better soccer players on the team, that the team has recently
moved up a division in the level of play, and that the plaintiff “goes all out”
when he plays.

Position of the Parties

[42]        
Counsel for the plaintiff submits that the MVA caused the plaintiff’s
soft tissue injuries to his back and neck and, in addition, according to the
unrefuted evidence of Dr. Beheshti caused, or in the alternative,
exacerbated, the plaintiff’s spondylolsis. As a result of the MVA, the
plaintiff has experienced neck and back pain, as well as headaches and sleep
loss.

[43]        
Counsel for the plaintiff contends that, while his neck pain was
resolved within five months and his back pain has improved, he has not made a full
recovery and still experiences pain when he plays soccer or when he studies for
extended periods.

[44]        
The plaintiff, therefore, seeks non-pecuniary damages in the range of
$40,000; future care costs in the amount of $5,000; damages for loss of earning
capacity in the amount of $30,000; and $831.80 in special costs.

[45]        
Counsel for the defendant acknowledges that the plaintiff experienced
mild soft tissue injuries as a result of the MVA but submits that the MVA
caused the plaintiff little pain and had only a minor impact on his life. Counsel
submits that his involvement in competitive soccer; his continued achievement
in his university program; and his active lifestyle are evidence of the limited
effect of the MVA on his level of functioning.

[46]        
She notes the plaintiff admitted that his neck pain was resolved within
2 to 3 months and that his headaches were minor and not a significant problem.
With respect to his back pain evidence, counsel contends that Dr. Beheshti’s
evidence should be given little weight in circumstances where she did not see
the plaintiff until eight months after the MVA and did not report any abnormal
findings in her physical examination of the plaintiff.

[47]        
Accordingly, the defendant submits that the proper range for
non-pecuniary damages is $10,000 – $16,000 and that no award for loss of
earning capacity or future care costs is justified. Special costs are agreed.

Liability

[48]        
As noted above, the defendant’s liability for the MVA is admitted.

Causation

[49]        
The plaintiff must establish on the balance of probabilities that the defendant’s
negligence caused or materially contributed to an injury. The defendant’s
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the range of de minimus. Causation need not be proven
by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458; Farrant
v. Laktin, 2011 BCCA 336.

[50]        
The primary test for causation asks: but-for the defendant’s negligence
would the plaintiff have suffered the injury. The “but-for” 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.

[51]        
Applying these principles, I find the plaintiff’s injuries from the MVA
to be as follows.

Neck

[52]        
It is not disputed that the MVA caused a soft tissue injury to the
plaintiff’s neck and that he experienced neck pain as a result. I accept the
plaintiff’s evidence at trial that the intermittent neck pain lasted 2 to 3
months. I find that that pain was most pronounced immediately after the MVA and
that, with the assistance of exercise and chiropractic treatments, it was fully
healed within three months of the MVA.

Back

[53]        
With respect to the plaintiff’s claim of soft tissue injury to his back,
I observe that the plaintiff’s claim is supported by the evidence of Dr. Beheshti.
Although Dr. Beheshti did not examine the plaintiff until eight months
after the accident, her diagnosis of a mild soft tissue injury is supported by
the observations of the chiropractor, Dr. Hafizi, who was treating the
plaintiff in the period immediately following the MVA.

[54]        
There is also evidence that spondylolsis was a factor in causing the
plaintiff’s back pain. According to Dr. Beheshti’s evidence, this
condition can be genetic or can be caused by “any trauma” and that once a
person has this condition it can be aggravated by physical activity.

[55]        
I accept the evidence of Dr. Beheshti that the plaintiff has this
condition. However, I am not persuaded on the evidence that the MVA caused the
plaintiff’s spondylolsis. In that regard, I note that, in her expert report, she
did not state that the plaintiff’s spondylolsis was caused by the MVA. In her
testimony she stated that the condition may be caused by any trauma or may be
genetic. With respect to the question of whether the MVA caused this condition,
her evidence on this point, which arose in re-examination, was equivocal. That
said, I am satisfied on the evidence that it is more probable than not that the
plaintiff’s condition was aggravated by the MVA and contributed to the pain
experienced by the plaintiff.

[56]        
With regard to the plaintiff’s back pain, I accept the plaintiff’s
evidence that the pain was the worst during the month after the MVA. He
testified that initially his back pain lasted one to two hours, three times a
week and that, with chiropractic treatments and physiotherapy, the frequency of
pain diminished significantly. Although the plaintiff testified that the
intensity of the pain did not change, the plaintiff agreed in his evidence that
he reported his pain at a level of 2 out of 10 in 2012. Further, the plaintiff
testified that, with the exercises recommended by the kinesiologist were “extremely
helpful” and that he subsequently experienced pain only about once a month – mainly
when he “overplays” in soccer. Even though he is playing competitive soccer,
the plaintiff testified that most of the time (17 games out of 20) he does not
experience pain when he plays.

[57]        
Based on the plaintiff’s evidence as to the extent of his recovery, I
conclude that while the plaintiff continues to experience occasional back pain
when he plays soccer, the intensity of the pain has lessened considerably since
the MVA.

Headaches

[58]        
With respect to the plaintiff’s complaint of headaches, I accept the
testimony of the plaintiff that he experienced minor headaches in the back of
his head for a “couple of months” following the MVA. I find it more likely than
not that these headaches were the result of the MVA.

[59]        
While the plaintiff testified that the headaches continued into 2011, I
accept the evidence of Dr. Beheshti that the 2011 headaches were migraines
and, therefore, of a different nature than the headaches in the period
immediately following the MVA. The evidence does not establish that the
migraines were causally related to the MVA.

Non-Pecuniary Damages

[60]        
Non-pecuniary damages are awarded to compensate a 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. Such cases will provide guidance but the case must be
determined on its own unique facts, Trites v. Penner, 2010 BCSC 882.

[61]        
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:

The inexhaustive list of common facts 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 arguable
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 BCCA 54).

[62]        
Within this context, the court has emphasized that the assessment of
non-pecuniary damages is necessarily influenced by the individual plaintiff’s
experiences in dealing with his injuries and their consequences, and the
plaintiff’s ability to articulate that experience, Dilello v. Montgomery,
2005 BCCA 56. The court has also emphasized that care should be taken where
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,
Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) and Edmondson v.
Payer, 2012, BCCA 114.

[63]        
In this case, counsel for the plaintiff submits that an award of $40,000
is justified based upon the plaintiff’s injuries and the case law: Datoc v.
Raj, 2013 BCSC 308; Hunter v. Yuan, 2010 BCSC 1526; Bjarnason v.
Parks, 2009 BCSC 48; Chan v. Lee, 2008 BCSC 594; and Haines v.
Shewaga, 2009 BCSC 340.

[64]        
Counsel for the defendant submits the appropriate range for non-pecuniary
damages is $10,000 to $16,000 and she refers to: Liu v. Thaker, 2012
BCSC 612; Dajri v. Regimbald, 2006 BCSC 834; Ram v. Rai, 2012 BCSC
1718; and Johnson v. Keats, 2012 BCSC 751.

[65]        
I consider that the cases referred to by counsel for the plaintiff,
while helpful, generally involved injuries which were somewhat more serious.
For example, in Chan the plaintiff had psychological as well as physical
symptoms; in Hunter, the plaintiff was unable to carry out household
chores for four years after the accident; in Haines, the plaintiff had
difficulty doing his former recreational activities for a significant period of
time and found certain parts of his present job difficult to do; in Bjarnason
the plaintiff could not participate in recreational activities for a number of
months and had a recurrence of intense pain two years after the accident; and
in Datoc, the plaintiff had neck pain and headaches, as well as back
pain, for approximately one year.

[66]        
That said, the cases referred to by counsel for the defendant involved
injuries which generally resolved within a shorter period than in the plaintiff’s
case. While the plaintiff’s neck pain and headaches resolved within three
months, he had significant back pain for at least one year, with occasional back
pain after that time. Although the plaintiff’s reports of pain were largely
subjective and the MVA was relatively minor, I am satisfied on the evidence of
the plaintiff that he experienced pain and discomfort as a result of the MVA. In
that regard, I note that the plaintiff was diligent in taking steps to recover
from his injuries, including the exercises recommended by the professionals
assisting in his recovery.

[67]        
In assessing the impact of the injuries on the plaintiff’s enjoyment of
life, I have considered the plaintiff’s candid admission that the injuries from
the MVA did not affect the amount of time he played soccer and that he was able
to excel in a more competitive league after the MVA. That said, it is also
evident from the plaintiff that he paid a price for playing hard. I accept the
plaintiff’s evidence that playing competitive soccer contributed to his pain.
While the plaintiff was able to continue with the sporting activity he loved
after the MVA, he is entitled to be compensated for the pain which he
experienced as a result of the MVA.

[68]        
I conclude that a fair and reasonable award for the plaintiff’s pain and
suffering and his loss of enjoyment of life is $25,000.

Loss of Earning Capacity

[69]        
Damages for loss of earning capacity may be awarded where there is a
substantial possibility that the plaintiff’s earning capacity has been impaired
by his injuries. The essential task of the court is to compare the likely
future of the plaintiff’s working life if the accident had not happened with
the plaintiff’s likely future working life after the accident, Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144.

[70]        
There are two possible approaches to the assessment of loss of future
earning capacity: the “earnings approach”, from Pallos v. Insurance
Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.), and
the “capital asset approach” in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (C.A.).

[71]        
In this case the plaintiff claims a loss of future earning capacity on
the capital asset approach on the criteria set out in Brown:

                
i.         
whether the plaintiff has been rendered less capable overall of earning
income from all types of employment;

               
ii.         
whether the plaintiff is less marketable or attractive as a potential
employee;

             
iii.         
whether the plaintiff has lost the ability to take advantage of all job
opportunities that might otherwise have been open; and

             
iv.         
whether the plaintiff is less valuable to himself as a person capable of
earning income in a competitive labour market.

[72]        
Counsel for the plaintiff submits that even though the plaintiff expects
he will find work in his chosen field, he will have a harder time than those in
his cohort who are free of pain and do not require accommodation in terms of
stretching breaks. She also submits that there will be some physical jobs that
he simply cannot take on.

[73]        
In my view, the evidence does not support the plaintiff’s claim that he
is less capable of earning an income; that he is less marketable; that he is
less able to take advantage of job opportunities; or that he is less valuable
to himself as a person capable of earning an income in a competitive labour
market, as a result of his injuries from the MVA.

[74]        
The plaintiff has been successful in his software engineering program
and has secured a coop placement with a leading software company. There is no evidence
that he was unable to do the work he was assigned at Blackberry due to the
injuries caused by the MVA. While he has expressed a concern that he may not be
able to work the 10 hours a day expected by some employers, there is no evidence,
other than his own expression of concern, that he will be incapable of
performing work at the level of 10 hours a day if that were required. Further, I
do not accept that the occasional need to break for a stretch would render him
less attractive or marketable with prospective employers.

[75]        
While counsel for the plaintiff contends that there will be some, more
physical jobs that the plaintiff cannot take on, I find it unlikely that he
will seek jobs involving physical labour, given his university training. On the
basis of the reasoning in Perren v. Lalari, 2010 BCCA 140, I question
whether such jobs are realistic occupations for consideration of the
plaintiff’s earning capacity.

[76]        
However, even if the plaintiff were to pursue jobs with physical demands,
there is no medical evidence that he is restricted from working in occupations
which have such requirements. I note that Dr. Beheshti’s prognosis of the
plaintiff’s recovery was positive and the plaintiff has continued to be
involved in physically demanding sports activities since the MVA.

[77]        
The cases upon which the plaintiff relies, in my view, are
distinguishable. In Sinnot v. Boggs, 2007 BCCA 267, there was medical
evidence that the plaintiff grade 11 student would have difficulty with more
strenuous and physically demanding work. As she was young and without a settled
line of work, the court found that she faced limitations on her ability to work
competitively in jobs that were previously open to her. In Haines, the
22 year old plaintiff, who had no settled career, was awarded damages for loss
of earning capacity where his ability to work competitively in heavy labouring
jobs was impaired – which work was among the type of work he had been performing.
In Mar v. Young, 2009 BCSC 1251, there was medical evidence and evidence
of co-workers to support the conclusion that the plaintiff was unable able to
work long hours as a result of the accident.

[78]        
In contrast to such cases, I am unable to conclude that there is a real
and substantial possibility that the plaintiff’s earning capacity has been
impaired as a result of injuries from the MVA. The plaintiff has demonstrated the
intelligence, drive and ability to succeed in his chosen field. I, therefore,
decline to award damages for loss of earning capacity.

Costs of Future Care

[79]        
The plaintiff is entitled to compensation for the cost of future care
based on what is reasonably necessary to restore him to his pre-accident
condition in so far as that is possible. The award is to be based upon what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical well-being: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar v.
Beazley, 2002 BCSC 1104; and Gignac v. Rozylo, 2012 BCCA 351.

[80]        
The plaintiff claims future care costs for exercise and physiotherapy
needed to minimize pain symptoms related to the MVA. Counsel for the plaintiff
submits that there is medical justification for the costs of physiotherapy and
kinesiology treatment from Dr. Beheshti.

[81]        
Counsel for the defendant disagrees that future care costs are justified
on the basis that the plaintiff’s spondylolsis was not caused by the MVA.

[82]        
I agree with the defendant that the evidence does not establish that the
plaintiff’s spondylolsis was caused by the MVA. However, as noted above, I have
found that the MVA aggravated the plaintiff’s condition and contributed to his
pain.

[83]        
To the extent that the plaintiff has residual pain resulting from the
MVA, I consider that the costs of gym fees, physiotherapy, and kinesiology for
a further period are reasonable and are medically supported by Dr. Beheshti.

[84]        
I award the plaintiff $1,500 for future care costs for gym fees,
physiotherapy and kinesiology.

Special Damages

[85]        
The parties are agreed that the plaintiff should be reimbursed $831.80
for out of pocket expenses he incurred as a result of the MVA. I, therefore,
award this amount of special damages.

Conclusion

[86]        
In summary, the total amount of damages assessed are as follows:

Non-pecuniary damages              $25,000

Future care costs                        $1,500

Special Damages                        $831.80

Total                                           $27,331.80

[87]        
The parties may make submissions as to costs, if they are unable to
agree.

“Harris
J.”