IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160411

Docket: M144650

Registry:
Vancouver

Between:

Hardeep Matharu

Plaintiff

And

Balwant S. Gill

Defendant

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
Hardeep Matharu, the plaintiff, was driving west on Nordel Way in her
mother’s pickup truck when it collided with the van driven by the defendant,
Balwant Gill. The parties each say the accident was caused by the negligence of
the other party. The defendant acknowledges that Ms. Matharu suffered soft
tissue injuries as a result of the accident, but takes issue with the nature
and extent of the symptoms she suffered. The defendant says that any persisting
symptoms experienced by Ms. Matharu were caused by her pre-existing conditions
of inflammatory polyarthritis, osteoporosis, anemia and anxiety disorder. As a
result of the parties’ positions, liability and damages were seriously
contested at the trial of this action. In the reasons which follow, I set out
my conclusions on both.

Liability

[2]            
The accident occurred a little after 5:00 p.m. when Ms. Matharu was
driving to work at the Vancouver Airport (“YVR”) in a westerly direction in the
left lane on Nordel Way. The accident took place west of the intersection
between Nordel Way and Holt Road. Mr. Gill entered Nordel Way after stopping at
the stop sign on Holt Road. He says he turned into the right lane to head in a
westerly direction on Nordel Way. The driver’s side of Mr. Gill’s vehicle
collided with the passenger side of Ms. Matharu’s truck. In order for the
collision to occur, one of the vehicles must have left its intended lane of
travel and entered into the other westbound lane. The only direct evidence
regarding the accident came from the two parties. There were no independent witnesses.

Position of the Plaintiff

[3]            
Ms. Matharu says Mr. Gill was not a credible witness. He had little
recollection about important details, gave inconsistent evidence regarding
particulars of the collision, and made statements that are illogical. When
testifying, he was stubborn and argumentative. By contrast, Ms. Matharu’s
evidence about the collision was consistent through discovery and trial. She
acknowledges that she made a false statement on discovery about where she was
going at the time of the accident, but explained why she did so: her father did
not want her to let ICBC know that she was using the vehicle to drive to work.

[4]            
In addition, Ms. Matharu argues that it is far more probable the
accident occurred as she alleges. It is very unlikely that she would turn her
truck directly into Mr. Gill’s vehicle as she was overtaking him and much more
likely that he unintentionally made a wide turn onto Nordel Way. The plaintiff
also argues that the damage to the vehicles is more consistent with the plaintiff’s
version of events.

Position of the Defendant

[5]            
The defendant says Ms. Matharu’s evidence should be given no weight. She
admitted to lying on discovery, a serious breach of her affirmation to tell the
truth. The defendant also says her evidence about how the accident occurred was
vague and inconsistent. She says she did not see Mr. Gill’s vehicle, but claims
that it swung wide and hit her truck. The defence says the onus is on the plaintiff
to prove that Mr. Gill’s negligence caused the accident. She cannot meet that
onus given the conflict between the parties’ evidence and Ms. Matharu’s lack of
credibility.

Analysis

[6]            
I conclude that the accident was caused entirely by the negligence of
Mr. Gill. As he entered Nordel Way, he executed a wide turn which caused his
vehicle to enter the left lane where it struck the plaintiff’s vehicle. Ms.
Matharu was driving in that lane at the posted speed limit. She did not change
lanes or drift out of her lane. Her truck was struck at the right front tire by
the defendant’s vehicle. I have arrived at this conclusion based on my
assessment of credibility, but also on the circumstances of the accident and
the photographs of the vehicle damage.

[7]            
I reject the defendant’s attack on the credibility of Ms. Matharu. It is
a serious matter to make a false statement under affirmation at an examination
for discovery. Ms. Matharu’s statement that she was driving to Save-on-Foods
rather than to work was false. She made the statement at the request of her
father who did not want to let the insurer know that she used the vehicle to
drive to work. I accept Ms. Matharu’s acknowledgment of the false statement and
her reason for making it. At the time of the accident, she was 23 years old and
was living with her family. She impressed me as a cautious witness who did not
overstate her evidence in any way, whether about damage or liability issues.
However, I also found her to be young for her age, timid and anxious by nature.
I conclude that her statement on discovery was made out of deference and
obedience to her father. While it was improper for her to misstate her reason
for driving the vehicle on that day, it does not cause me to reject the rest of
her evidence. As I have indicated, I found her to be a careful and reliable
witness.

[8]            
I also reject the defendant’s criticism of Ms. Matharu’s recollection of
the circumstances of the collision. Defence counsel emphasized Ms. Matharu’s
discovery statement that she did not see the defendant’s vehicle before the
accident and contrasts that with her assertion that the accident was caused when
Mr. Gill drove into her lane. I found her evidence on this issue both
convincing and consistent. She was travelling at 50 kilometres per hour with
other traffic in the left lane. She does not recall seeing the defendant’s van
starting to make the right turn. This is not surprising; such a manoeuvre is
not particularly noteworthy. Her assumption that Mr. Gill’s vehicle swung wide
and struck her vehicle in the course of his turn is reasonable and is not a
basis on which to question her credibility.

[9]            
By contrast, I find that I cannot accept the evidence of the defendant.
At the time of the accident he was 81 years old. He has held a driver’s licence
in this province since 1980. On the day in question, he had driven to Surrey
from Richmond to go to the bank. He was turning onto Nordel Way to drive back
to Richmond.

[10]        
Mr. Gill gave evidence through an interpreter, but answered many
questions in English. Often his answers were not responsive to the questions.
At times his evidence made little sense or contradicted previous statements.
Some of the difficulties with his evidence include:

·      
At discovery Mr. Gill said he was travelling 30 miles an hour
when the accident occurred but at trial said he was going 30 kilometres an
hour. When confronted with the difference, he insisted that both speeds are the
same. I conclude that he does not have any recollection as to his speed of
travel.

·      
Mr. Gill stated that he waited at the stop sign on Holt Road to
check the traffic. When asked how long he waited before turning, he said that
he “rested there for five to seven minutes”. This answer is nonsensical.

·      
Mr. Gill said the accident occurred some distance from the
intersection between Holt Road and Nordel Way. He drew a sketch which shows the
point of collision being close to 120th Street. This is inconsistent with Ms.
Matharu’s evidence and the notes of the Surrey Fire Service who were the first
responders at the scene. I cannot accept Mr. Gill’s evidence about the location
of the collision; it occurred just west of the intersection.

·      
Mr. Gill gave inconsistent versions of where the first contact
was between the vehicles. On discovery he said it was at the rear of his
vehicle, but at trial he said it was at the front. I conclude that the left
front corner of his vehicle struck Ms. Matharu’s truck by the front wheel well
and punctured her right front tire, causing it to go flat.

·      
Mr. Gill had no recollection as to the time of the accident. He
testified that it occurred in the late morning. I conclude he has little or no
recollection of the circumstances of the accident.

I am unable to accept Mr. Gill’s evidence as a result of
such difficulties.

[11]        
Both parties rely upon the decision in Hudak v. Gorse, [1995]
B.C.J. No. 1601 (C.A.) for the proposition expressed by Hollinrake J.A. at
para. 7, that a useful tool for assessing credibility is a consideration
of the probabilities:

7          Where at the end of a
day the trial judge finds himself or herself in a quandary as to whose evidence
to accept, a useful tool in reaching that conclusion on credibility is to
consider what probably happened on the basis of the evidence the trial judge
does not reject as not being worthy of credit.

[12]        
I am not in a quandary here as to who’s evidence to accept.
Nevertheless, I find that the probabilities as to how this accident occurred
fully support Ms. Matharu’s position. The geometry of the intersection is
somewhat unusual. When driving toward the intersection between Holt Road and
Nordel Way, a driver in Mr. Gill’s position is travelling 180° in the wrong
direction. The right turn requires a sweeping turn around a wide curve. It is
easy to see how a driver could miscalculate the turn and drift into the left
lane. It is more likely that Mr. Gill unintentionally executed a wide turn,
than that Ms. Matharu overtook Mr. Gill’s vehicle and turned into it. Ms.
Matharu was travelling at a safe speed, she was not intending to change lanes,
there was nothing restricting her visibility and she had no reason to be
distracted.

[13]        
I also find support for the conclusion I have reached in the photographs
of the vehicle damage. I agree that I must be cautious in inferring too much
from photographs of vehicle damage. However, the scrapes on the driver’s side
front bumper of the defendant’s vehicle are consistent with the accident
occurring as alleged by Ms. Matharu. The bumper is rounded and the scrapes
start on the front side of that rounded edge. In other words, they are
inconsistent with the suggestion that Ms. Matharu’s vehicle initiated the
accident by driving into the side of Mr. Gill’s vehicle.

[14]        
In summary, Mr. Gill negligently drove into the left lane of traffic as
he was turning right onto Nordel Way. He is entirely at fault for the accident
of March 15, 2013.

Damages

Position of the Plaintiff

[15]        
Ms. Matharu suffered soft tissue injuries to her neck, shoulders and low
back from the accident. At the time, she was working part time and attending
school. While she missed very few days of work, she had to drop one course she
was taking at Kwantlen Polytechnic University (“Kwantlen”) as a result of her
injuries. While the symptoms have improved gradually over time, the neck and
shoulder pain continues to affect her and limit her activities. Ms. Matharu
says she has experienced such a lengthy recovery period because of her
pre-existing arthritic condition. She says her pre-existing conditions
predispose her to developing chronic pain and that there is a substantial risk
her symptoms will become chronic as it is now three years since the accident.
She also advances claims for massage therapy, kinesiology treatment,
medications and a gym membership for five years. She says a fair award for
non-pecuniary damages is $65,000, and claims past wage loss of $233.52, special
damages of $1,796.94 (including the cost of the Kwantlen course) and future
care expenses of more than $13,000.

Position of the Defendant

[16]        
The defence acknowledges that Ms. Matharu suffered a mild low back
strain and a moderate soft tissue injury to her neck and shoulders. However,
the defence says the medical evidence establishes that the symptoms are not
significant. That evidence establishes that the accident did not alter the
natural course of her pre-existing disease process. She has no functional
impairment and presented limited evidence regarding the impact of her injuries
on her ability to work and carry on domestic and recreational activities.
Further, the defence says it is very likely that Ms. Matharu will fully recover
from the injuries suffered in the accident.

[17]        
The defence argues that Ms. Matharu failed to mitigate her damages by
following the treatment recommendations of her family doctor, Baldev Sanghera.
She failed to participate in regular exercise and only recently took part in an
active rehabilitation program. The defence also takes issue with the claims for
cost of future care as it is unlikely Ms. Matharu would use a gym or follow
through with an exercise program with a kinesiologist.

[18]        
The defence submits that an appropriate award for non-pecuniary damages
is $20,000. The defence agrees that the fee for the lost Kwantlen course is
compensable, as are some of the other special damages.

Analysis of the evidence and conclusions on the nature and duration of Ms.
Matharu’s symptoms

[19]        
As I have already indicated, I found Ms. Matharu to be a reliable
witness and I accept her evidence regarding the nature of her injuries, the
course of improvement of her symptoms, and the impact of those symptoms on her
daily life. Her evidence was fully supported by the evidence of Dr. Sanghera.
He was a careful witness who has treated Ms. Matharu for many years. I accept
most of his opinions regarding diagnosis and prognosis. Finally, as I will
explain, his evidence does not conflict with the expert report of the
defendant’s rheumatologist, Dr. Watterson, which was admitted in evidence
without cross-examination.

[20]        
Ms. Matharu experienced pain and stiffness on both sides in her neck,
shoulders, and arms as well as in her right lower back. She had difficulty
sleeping, pain with most activities and increased general anxiety. She remained
off work until March 22, 2013 as a result of her pain symptoms. She returned to
her regular activities, but continued to experience pain in her neck and
shoulders which was significant at times. Dr. Sanghera saw her every one or two
months following the initial assessment. I accept as accurate, the following
description of the progression of Ms. Matharu’s symptoms:

…She reported intermittent
improvement and exacerbation of the pain and stiffness in her neck, bilateral shoulders,
arms and lower back. The pain severity varied between 2-8/ 10 depending on her
activity. The pain worsened with repetitive activity, especially heavier house
chores like cleaning bathrooms or vacuuming. Her mother and sisters helped her
with these tasks, in order to minimize any aggravation. Her ability to move
quickly was hampered by her paravertebral and shoulder muscle spasm. Her
stiffness worsened with prolonged sitting or standing, and it was worse in the
morning on awakening

[21]        
Ms. Matharu initially undertook physiotherapy treatments but did not
continue with those in spite of recommendations from Dr. Sanghera. As time went
by, her symptoms did not improve. In December 2014 and February 2015, Dr.
Sanghera gave her trigger point injections with a corticosteroid in order to
decrease the persistent neck and upper back muscle spasm. This improved her
symptoms for a while. He also recommended that she attend further physiotherapy
and active rehabilitation. She followed those recommendations and started
further therapy in the spring of 2015. The treatment and passage of time has
resulted in an improvement of her symptoms as described by Dr. Sanghera:

She was then re-referred for
physiotherapy and active rehabilitation, in order to increase her functional
capacity and exercise tolerance, as well as improve her posture. This seemed to
help partially over the next 4-5 months. She has been able to engage in more
activity at home and at work, but a little too much or too heavy seems to cause
a re-exacerbation of her symptoms. Her pain severity now varies between 3-8/
10, but with less frequent highs and less severe spasms…

[22]        
Ms. Matharu explained how the pain symptoms have affected her at work,
school and home. She has always been somewhat frail as a result of her
pre-existing conditions. However, her ability to carry on with all of her usual
tasks was impacted by the accident. She is less able to do heavier tasks at
home. Her sister, Gurjeet, described the difficulty Ms. Matharu has in
performing tasks such as carrying groceries. She also described Ms. Matharu’s
regular use of a heating pad to ease her neck pain.

[23]        
At the time of the accident, she was taking courses at Kwantlen. She had
to drop a neuroscience course when her neck and shoulder pain prevented her
from preparing for the midterm exam and completing the course. Her friend,
Jazmine Tattla, observed the difficulties that Ms. Matharu had during classes
and while studying. Ms. Matharu frequently got up to stretch, move around and
try to ease the pain symptoms.

[24]        
Ms. Matharu has continued to work in security at YVR and now does so on
close to a full-time basis. She works on the screening of the passengers. She
is required at times to wand passengers; in other words, to use the screening
device to check for possible metal devices. She described the difficulty she
has in bending down to do this when she is experiencing pain symptoms. A
workplace colleague, Fraydoon Rahimi, confirmed these difficulties and
described how other security employees assist Ms. Matharu when she is having
difficulties.

[25]        
Dr. Sanghera provided opinion evidence regarding the relationship
between Ms. Matharu’s pre-existing conditions and the injuries suffered in the
motor vehicle accident:

Prior to the motor vehicle
accident on March 15, 2013, Ms. Matharu had been diagnosed with having
inflammatory polyarthropathy, osteoporosis, anemia and anxiety disorder. None
of these pre-existing medical conditions predisposed her to injury or made her
more susceptible to injury, but having these conditions, especially
inflammatory polyarthropathy and anxiety disorder would delay her recovery from
the injuries sustained on March 15, 2013. Inflammatory polyarthropathy would
make her more susceptible to having a higher degree of inflammation post injury,
and for a longer time period. Recovery would be expected to be slower. Anxiety
disorder would increase the degree of muscle spasm post injury, delay recovery
time, as well as increase her chance of re-exacerbation with less major
triggers. Some studies also indicate that patients with pre-existing anxiety
disorders tend to experience higher levels of pain when injured, and they tend
to take longer to recover. There is a greater chance of developing a chronic
pain syndrome in patients that have both an anxiety disorder and inflammatory
polyarthropathy. So far Ms. Matharu has not developed this, but the risk is
still there

[26]        
The defence takes issue with the suggestion that Ms. Matharu had a
pre-existing anxiety disorder. Dr. Sanghera agreed that he has not referred her
to a psychiatrist for that condition and that she has not been diagnosed with
anxiety disorder. He also agreed that she likely does not meet the Diagnostic
and Statistical Manual of Mental Disorders criteria for anxiety. Nevertheless,
he is of the view that she has the characteristics of that disorder. As a
result of his long experience with her as her family doctor, he knows her very
well. She has experienced one serious anxiety attack. He regards her as a very
anxious young woman, and took her level of anxiety into account in giving his
opinion regarding her prognosis.

[27]        
Dr. Watterson also considered the relationship between the motor vehicle
accident and Ms. Matharu’s pre-existing conditions. He agreed that she suffered
a soft tissue strain injury of the cervical spine and noted that in the
majority of individuals, such injuries improve and likely resolve within a
finite period of time. However, he recognizes that “a minority of individuals
will have more longstanding pain issues. Rheumatoid Arthritis can involve the
cervical spine. It is possible that rheumatoid disease had rendered Ms. Matharu
more susceptible to persistent soft tissue pain related to musculotendinous
strain type injury.”

[28]        
Dr. Watterson recommends that Ms. Matharu continue with regular
stretching and range of motion exercises as well as the further education from
an allied health practitioner. He is “optimistic that Ms. Matharu’s symptoms
will continue to improve and possibly resolve.”

[29]        
Dr. Sanghera is more guarded about the possibility that Ms. Matharu will
fully recover. He concludes:

The prognosis for Ms. Matharu is
still somewhat guarded, in that she continues to have minor exacerbations with
increase in activity at home while performing household tasks such as scrubbing
bathtubs, mopping floors or prolonged vacuuming, as well as busier days at work
requiring repetitive bending to scan customers with few stretch breaks.
Frequent stretching on a regular basis seems to help to minimise and avoid any
aggravation of her sprain injuries. She has definitely noticed an improvement
in her symptoms and in her resilience with a continued emphasis on active
rehabilitation and exercise conditioning on a regular basis.

[30]        
When I consider the medical opinions and the evidence regarding the nature
and duration of Ms. Matharu’s symptoms, I arrive at the following conclusions:

a)       Ms.
Matharu suffered a moderate soft tissue strain to her neck and shoulders. She
also suffered a mild low back strain.

b)       Ms.
Matharu’s pre-existing conditions have affected the length of time it has taken
and will take for her to recover from the injuries. In particular, the
inflammatory polyarthropathy made her more susceptible to persistent soft
tissue pain. Her mild anxiety condition has also had some impact on the
persistence of her symptoms.

c)       In
spite of persistent pain for three years, Ms. Matharu has continued with most
activities at home and at work. She has managed to do this with the assistance
of family, friends and work colleagues. She can fairly be described as somewhat
stoic.

d)       Ms.
Matharu did not follow Dr. Sanghera’s recommendations to continue with
physiotherapy and active rehabilitation for about 12 months. Similarly, prior
to the accident, she did not take part in recommended regular exercise. Her
failure to do so for a period of time after the accident has likely resulted in
some prolongation of symptoms. However, it is unlikely her symptoms would have
resolved by trial, even if she had continued with the recommended therapy.

f)        Ms.
Matharu continues to experience symptoms related to the injuries suffered in
the accident. The symptoms will continue to resolve and there is a good chance
they will fully resolve within the next one to two years.

Non-pecuniary Damages

[31]        
An award of non-pecuniary damages is intended to compensate a plaintiff
for pain and suffering, loss of enjoyment of life and loss of amenities. The
award must be fair to all parties. All of the circumstances must be considered
when fixing the amount of an award for non-pecuniary damages. These can include
the nature of the injury, the severity and duration of pain, any physical
disability, emotional suffering and impairment of family and social
relationships: Stapley v. Hejslet, 2006 BCCA 34 at para. 46.

[32]        
The plaintiff relies on the following authorities as establishing the
appropriate range of damages for the non-pecuniary damage award in this case:

·       Araki
v. Guitard, 2012 BCSC 165;

·       Bhandal
v. Charlebois, 2015 BCSC 2315;

·       Carlisle
v. Vanthof, 2015 BCSC 2427;

·       Cummings
v. Hitt, 2015 BCSC 530;

·       Hinder
v. Yellow Cab Company Ltd., 2015 BCSC 2069; and

·      
Tomana v. Galvin, 2015 BCSC 2451.

[33]        
The defendant relies on the following authorities to establish the range
of damages for Ms. Matharu:

·       Huntley
v. Daley, 2014 BCSC 978;

·       Sarowa
v. Gill, 2010 BCSC 873; and

·      
Sidor v. Coulter, 2013 BCPC 11.

[34]        
I have reviewed the decisions referred to by both parties. While they
are useful in a general sense, the non-pecuniary damage award in each case
must, of course, be determined based on the particular circumstances of the plaintiff
before the court.

[35]        
I find that the cases referred to by the defendant have little
similarity to the facts of the case before me. The three cases relied on by the
defendant all involve injuries that were substantially resolved within a
relatively short time period. That is not the case here. It has been three
years since the accident and Ms. Matharu continues to suffer pain and the
symptoms continue to interfere with her daily activities. I have concluded that
she will likely continue to suffer pain symptoms from the injuries for another
year or two.

[36]        
Similarly, I conclude that most of the cases relied on by the plaintiff
are distinguishable on their facts. Most involve plaintiffs who have
experienced pain for five years or more and, in most of the cases, the court
has accepted the diagnosis of chronic pain. That is not the situation here. Dr.
Sanghera says there is a risk of chronic pain developing, but that risk has not
materialized. Dr. Watterson is of the view that it is very likely Ms. Matharu
will completely recover from the injuries suffered in the accident. I have
concluded it is very likely that Ms. Matharu will not suffer from chronic pain.

[37]        
When I examine the circumstances in this case and the factors
highlighted in Stapley, the important factors here are the length of
time Ms. Matharu has suffered ongoing soft tissue pain, the extent of that
pain, and the impact it has had on her ongoing activities. In that regard, I
accept that she is stoic and has continued to do most things. However, I also
find that she was frail and somewhat limited in what she could do before the
accident. Accordingly, the injuries have imposed a limitation on her activities
and lifestyle which has impacted her more than such injuries would have done to
someone who was more vigorous and did not suffer from inflammatory
polyarthropathy.

[38]        
In all of the circumstances, I conclude that a fair award for
non-pecuniary damages is $45,000. However, that does not end the matter. Ms.
Matharu did not follow Dr. Sanghera’s recommendations and I have accepted his
evidence that had she done so she would likely have had some improvement in her
symptoms. Accordingly, I find the defendant has satisfied the onus to prove
that Ms. Matharu failed to mitigate her loss. I would accordingly reduce the
non-pecuniary damage award by 10%.

Past Income Loss

[39]        
I accept the plaintiff’s submission in this regard. She missed two days
of work as a result of the accident which totals $233.52. (Actually, she may have
lost additional days but the plaintiff has only claimed for two missed days.) I
am unclear if this amount has been reduced to take into account income tax. If
not, that adjustment should be made.

Special Damages

[40]        
I also accept the plaintiff’s calculation of special damages with one
minor exception. The recoverable special damages include the expense of the
dropped course at Kwantlen ($378.00); the two lists of special damages included
in Exhibit 2 less the $25 cancellation fee at the Surrey Central Physio and
Wellness Centre (total of $1,035.70); and the additional treatment receipts for
the Surrey Clinic ($358.24). The total special damage award is thus $1,771.94.

Cost of Future Care

[41]        
I do not accept most of the plaintiff’s claims for future care costs.
The claim for five years of gym membership is without merit as it is extremely
doubtful Ms. Matharu would use such a membership; she did not do so before the
accident and failed to do so when it was recommended by Dr. Sanghera. There is
also no factual basis to make the award for future medication expenses sought
by the plaintiff. She was initially prescribed stronger medication, but within
a few weeks of the accident Ms. Matharu only used Advil to treat injuries
suffered in the accident. Other medications she used were for pre-existing
conditions.

[42]        
I do accept that she would benefit from the advice and instruction of a
kinesiologist over the next year to 18 months and that she would also benefit
from the services of a registered massage therapist over a similar time period.
Accordingly, I award the sum of $2,250 to cover those care costs during the
balance of her rehabilitation.

Summary

[43]        
I conclude that Mr. Gill was entirely at fault for the accident of March
15, 2013.

[44]        
Ms. Matharu is awarded the following damages:

·      
Non-pecuniary damages:  $40,500 ($45,000 less 10% for failure to
mitigate);

·      
Past Income loss:  $233.52;

·      
Special damages:  $1,771.94; and

·      
Cost of future care:  $2,250

[45]        
Ms. Matharu is entitled to total damages of $44,755.46.

[46]        
Subject to any submissions the parties wish to make regarding costs, the
plaintiff has been successful and is entitled to costs at Scale B.

“Butler J.”