IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Morrison v. Peng, |
| 2010 BCSC 562 |
Date: 20100426
Docket:
M082265
Registry: Vancouver
Between:
Joel Morrison and Debra Jabs
Plaintiffs
And:
Jinhua Peng
Defendant
Before:
The Honourable Mr. Justice D.M. Masuhara
Reasons for Judgment
Counsel for the Plaintiffs: | R.W. |
Counsel for the Defendant: | S.P. |
Place and Date of Trial: | Vancouver, April |
Place and Date of Judgment: | Vancouver, April |
Introduction
[1]
This is a personal injury action arising from a
motor vehicle accident that occurred in the late afternoon on May 29,
2006, at the intersection of Buswell Street and Cook Road in Richmond, B.C.,
where there is a four-way stop.
[2]
The plaintiff Mr. Morrison was driving his
1991 Ranger pickup and his wife, Ms. Jabs, was sitting on the passenger
side. They both had their seats belts on.
[3]
At the time of the accident, the plaintiffs were
fully stopped at the intersection. Mr. Morrison recalls having a sense
that the vehicle was about to be impacted from the rear and tensed up. Ms. Jabs
was turned slightly to her left as she was speaking to her husband and was not
aware of an impending collision. Ms. Peng, the defendant, was driving a
small compact vehicle and ran into the rear of Mr. Morrisons pickup. At
the time of impact Mr. Morrison had his foot on the brake, but in Mr. Morrisons
words the truck moved forward a couple of feet. There is no evidence of the
speed of the defendants vehicle at the time of the impact. After the impact, Mr. Morrison
exited his truck to speak with Ms. Peng. Ms. Peng was apologetic
about having run into the rear of Mr. Morrisons truck. He learned from
her that she was trying to swat at a fly in her car and did not have time to
apply her brakes. Ms. Jabs at some point also exited the truck and went
to see the damage to the truck.
[4]
The impact caused the rear bumper of Mr. Morrisons
pickup to bend downwards considerably.
[5]
The parties then left the scene. The plaintiffs
drove home to Richmond.
[6]
The next day the parties went to Dr. Craggs
office, their family doctor, for a previously scheduled appointment unrelated
to the accident. While there, Ms. Jabs was also examined for injuries
from the accident.
[7]
In June 2006, the parties moved from
Richmond to a large acreage in Langley on 200th Street. The rental arrangement
did not work out and they then moved to another acreage in Langley on 216th Street.
Issue
[8]
The defendant admits liability and acknowledges
that the plaintiffs suffered injuries.
[9]
The issue in this case is the extent of the
injuries suffered by the plaintiffs for the purpose of determining quantum of
damages.
Discussion
[10]
The claim of both plaintiffs relates to soft
tissue injuries.
[11]
The plaintiffs also seek special damages.
[12]
The plaintiffs do not seek compensation for loss
of income or future loss of earning capacity.
[13]
Mr. Morrison is 53 years old and Ms. Jabs
is 54 years old. They are married. Presently they are separated and have been
so for the seven months prior to trial.
A.
Mr. Morrison
[14]
Mr. Morrison is 53 years old. He is
retired but does vehicle body work and servicing on classic cars for friends
and neighbours. He has been treated for depression and Attention Deficit
Disorder both prior to and after the accident. He takes medications for these
conditions. At trial he appeared very fit, youthful, energetic and
expressive. He stated that he has been active all of his life. In his younger
days he was active in sports and played soccer and lacrosse. He suffered knee
injuries and a broken nose. He has a plastic knee cap as a result of his past
injuries. He now plays some racquetball and goes for walks. He says these
days he feels like a million bucks.
[15]
Mr. Morrison claims that he suffered
injuries to his lower, mid, and upper back and neck; that he suffered from
headaches; and that he had some injuries and numbness in his left hand and
fingers. This latter injury is stated by his counsel as minor relative to the
other injuries.
[16]
Mr. Morrison stated that he was sick to his
stomach for the first few days after the accident and that initially his neck
was the location of his pain. After attending therapy, his back would one day
be painful and then on others his left arm would feel pain. He would feel
nauseous once or twice a week for the first six months following the accident.
He also stated that he had severe headaches but that they started to subside
after about six months following the accident and went away after about a
year. He said that he had never had headaches prior to the accident.
[17]
He stated that for the first year after the
accident he was only able to work a couple of hours each week on renovations to
the house he was living in. However, Ms. Jabs stated that when they moved
from Richmond to a Langley acreage, Mr. Morrison was responsible for
mowing the large yard and doing the yard work. There was also another person
who did work around the house. Mr. Morrison also complained of hip pains.
[18]
Mr. Morrison attended his chiropractor for
treatment as well as a massage therapist. He attended nine chiropractic
appointments from June 6, 2006, to May 9, 2007. He attended three
massage therapy sessions, August 25, 2006, April 19, 2007, and June 19,
2007, at Buena Vista Massage Therapy Clinic. He also attended three massage
therapy sessions with Gordon Hall, R.M.T., on June 9, 2006, June 14,
2006 and June 29, 2006.
[19]
Mr. Morrison testified that his symptoms
largely resolved within one year of the accident.
[20]
The medical/legal report of Dr. Cragg, Mr. Morrisons
family doctor, is of limited value as he never examined Mr. Morrison for
injuries related to the accident. Dr. Cragg states that Mr. Morrisons
complaints to him of symptoms from the accident were tangential to the
primary reason for his appointment, as he was told by Mr. Morrison that he
was receiving primary care for his symptoms from a chiropractor.
[21]
In May 2007, Mr. Morrison complained
to his chiropractor that his neck was still painful from the accident and an
x-ray was ordered. The findings from the x-ray were of chronic multilevel
degenerative changes. The accident was not mentioned in further visits with Dr. Cragg.
[22]
In his medical/legal report dated December 19,
2008, Dr. Cragg states:
In summary, Mr. Morrison
experienced prolonged neck and back pain subsequent to the MVA in question.
His care was primarily undertaken by a chiropractor, whereas his mention of
symptoms to me was usually tangential. An x-ray of his neck demonstrated
changes which alone can produce chronic neck pain, and the presence of signs of
osteoarthritis in his hands in Oct. 2007 is indication of a chronic process
which often involves other joints. Indeed the x-ray report of the neck
mentions not only chronic narrowing of disc spaces but widespread arthritic
changes in the facet joints at multiple levels. However it is the case that
many people with osteoarthritis of the neck are asymptomatic. On the other
hand when a cervical strain injury occurs, resolution of symptoms may take longer
than it would in individuals with a normal cervical spine. Also, and more to
the point, there is no mention of neck symptoms in my notes prior to the date
of the MVA. Therefore it is likely that Mr. Morrisons symptoms arose as
a direct result of the accident in question.
[23]
Having considered the evidence, I am of the view
that Mr. Morrison suffered soft tissue injuries to his neck and back which
can be characterized as mild, and that his symptoms resolved within a year.
Given my assessment of Mr. Morrison and the facts, my view is that he was
able to do more than what he stated.
[24]
In terms of non-pecuniary damages, the cases put
forth on behalf of Mr. Morrison are: Dadson v. Gallo, 2007 BCSC 1504;
Darji v. Regimbald, 2006 BCSC 834; and Hrnic v. Fast, 2004
BCSC 1411. The non-pecuniary awards in those cases range from $12,000 to
$15,000.
[25]
The cases relied upon by the defendant are: Mohammed
v. Rai, 2005 BCSC 1918; Al-Mandlawi v. Gara, 2005 BCSC 740;
and Saluja v. Wise, 2007 BCSC 706. The non-pecuniary awards in
those cases range from $3,000 to $7,500.
[26]
Recognizing that the aforementioned cases are
for guidance and that each case is to be determined on its own unique
circumstances, I find a fair and reasonable non-pecuniary award to be $9,000.
[27]
Mr. Morrison seeks compensation for the
purchase of a bumper to replace the bumper that was damaged in the accident.
For some reason he failed to produce the receipt. The amount sought is $150.
I am persuaded that he incurred this amount and that he is to be compensated
for this amount.
[28]
He also seeks compensation for chiropractic and
massage therapy expenses. Given his evidence that his symptoms had largely
resolved by a year after the accident, his compensation for these services
should track this period. Accordingly, he is to be compensated $215 for
chiropractic fees and $80 for massage therapy costs.
B.
Ms. Jabs
[29]
Ms. Jabs worked as a supervisor of clerical
staff at the Vancouver Public Library for 35 years. She continued to work for
about a month following her return to work, but then was placed on long-term
disability. It appears to be agreed that her long-term disability status was
not as a result of the accident but related to depression and fatigue. Prior
to the accident she suffered from prolonged depression and at the time of the
accident was taking Wellbutrin (100 mg three times a day) and Prozac (20 mg/day).
At trial she was pleasant but appeared tired and was tearful at times during
her testimony.
[30]
Ms. Jabs claims that she suffered from
injuries to her lower, mid, and upper back including her neck; that she
suffered injuries to her shoulders; that she suffered from headaches; and right
arm numbness. Mr. Morrison stated that following the accident, Ms. Jabs
had volatile mood swings. Her whole routine changed. He stated that she was
in considerable pain. She could only work around the house for a few hours and
then would have to lie down.
[31]
Following the accident, Ms. Jabs returned
to work at the beginning of June 2006, when her vacation time was over. She
was experiencing headaches, neck pain and back pain. She was able to do some
gardening but was significantly restricted because of her pain. She would take
her dogs for walks. She could only stay up for five hours and then sleep for a
couple of hours. Many months after the accident in November 2006, she
complained of numbness in her hands and fingers.
[32]
She was sent to Dr. Veralis for her
numbness. Ms. Jabs stated that Dr. Veralis believed her condition
was from carpal tunnel syndrome. He provided her with a splint to use, which
she wore for about one or two months.
[33]
Ms. Jabs also developed sleep apnea but she
does not claim that it is a result of the accident.
[34]
She states that she has poor sleep and that the
pain in her neck sometimes causes her to wake.
[35]
During the year in which the accident occurred, Ms. Jabs
had several stressors in her life. They included her being named a third party
by the operators of a camp who were being sued by Mr. Morrison for having
been attacked and bitten by a pit bull which tore one of his fingers off; a
dispute with their former landlord on 200th Street; difficulties with
pre-menstrual dysphoric disorder; having to find and move to another home; and
the accident.
[36]
By Christmas 2006, her employer became
concerned about Ms. Jabs because of her considerable use of her sick time
bank. She ultimately went onto a long-term disability benefits program because
of her depression and anxiety and not due to her injuries from the accident.
Her last day of work was February 2, 2007.
[37]
The treatments that she received for her
injuries from the accident were chiropractic therapy and massage therapy. She
attended many sessions.
[38]
In terms of special expenses, Ms. Jabs
purchased pillows from a chiropractic office and paid $100 plus taxes. She
also purchased a heating pad. She also paid for chiropractic and massage
therapy.
[39]
On examining Ms. Jabs at her first
appointment after the accident, Dr. Cragg noted that she had tenderness in
her neck but a full range of neck motion.
[40]
In his report dated December 23, 2008,
which is the only report from her physician, Dr. Cragg states that:
Ms. Jabs was likely injured in the MVA
in question, sustaining soft tissue strain in the muscles and spinal
attachments of her upper back and neck which caused symptoms that persisted for
several months, requiring referral to a neurologist who noted ongoing pain and
dysesthesia still present eight months after the accident. Ms. Jabs also
demonstrated x-ray evidence of degenerative disease in the cervical spine.
This was not caused by the accident, but the accident could have triggered
symptoms referable to it, which in turn prolonged the symptoms. Because of the
fact that Ms. Jabs did not attend my office or report on her progress with
any regularity (in fact only once between August 2007 and August 2008), I am
unable to comment on the extent to which her back and neck symptoms were
troublesome over that period. From my review of the other medical and
psychiatric history, it will be apparent that Ms. Jabs primary disability
has been owing to fatigue and depression. Such factors will often exacerbate
physical symptoms referable to unrelated injury. Although the reverse is also
true, I believe that even in the absence of an injury Ms. Jabs would have
remained off work because of her fatigue and depression.
With respect to
prognosis, there is no reason to believe Ms. Jabs will suffer prolonged
symptoms or permanent sequelae as a result of the accident in question. It is
more likely that prolonged symptoms would be the result of chronic cervical
degenerative disease, which predated the accident, along with the possibility
that symptoms may be amplified and prolonged as a result of the depression.
[41]
Numbness in her right hand arose in November 2006,
many months after the accident. There is little evidence as to its source.
There is no medical evidence connecting this symptom to the accident. Ms. Jabs
stated that she did not strike her arm on any part of the car when the impact
occurred. I am not persuaded that there is a connection.
[42]
Ms. Jabs condition is somewhat complicated
by the several conditions that she has identified in the report. Based on the
foregoing medical opinion, I find that that she suffered soft tissue injuries
to her neck, upper and lower back and that the symptoms she experienced
resulting from the accident had a duration somewhat beyond one year of the
accident. Her chiropractic and massage treatments end at this point for about
one year. I would characterize her injuries as mild to moderate in severity.
[43]
In terms of non-pecuniary damages, the cases
submitted by the plaintiff were: Pardanyi v. Wilson, 2004 BCSC 1804;
Shum v. Viveiros, 2006 BCSC 158; and Lewis v. Magil, 2003
BCSC 141. The non-pecuniary awards in those cases range from $20,000 to
$28,000. Counsel conceded that $28,000 would be the high-water mark for the
injuries in the instant case.
[44]
The defendants cases on non-pecuniary damages
are the same as those referred to above regarding Mr. Morrison. The
non-pecuniary awards in those cases range from $3,000 to $7,500.
[45]
Based on my findings of the extent and duration
of the injuries, the cases submitted by the defence are low.
[46]
Recognizing that the aforementioned cases are
for guidance and that each case is to be determined on its own unique
circumstances, I find a fair and reasonable non-pecuniary award to be $18,000.
[47]
Turning to special damages, Ms. Jabs
incurred expenses for chiropractic treatment and massage therapy. She also
purchased a specialized pillow for her condition from a chiropractic office.
Given the period of injury that I have found, Ms. Jabs is to be
compensated $1,285 for her chiropractic and massage therapy expenses. She is
also awarded $150 for her specialized pillows.
Conclusion
[48]
Mr. Morrison is awarded non-pecuniary
damages in the amount of $9,000. He is awarded special damages in the amount
of $445. The total award is $9,445.
[49]
Ms. Jabs is awarded non-pecuniary damages
in the amount of $18,000. She is awarded special damages in the amount of
$1,435. The total award is $19,435.
[50]
The parties made no submissions on costs. I
will address the matter if the parties are unable to determine the matter on
their own.
The Honourable Mr. Justice Masuhara