IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121003

Docket: M103130

Registry:
Vancouver

Between:

Satyawan Naidu
also known as Sapyawan Naidu

Plaintiff

And

Jasvir K. Gill and
Jagroop Singh Gill

Defendants

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

Introduction:

[1]            
These proceedings are under Rule 15-1 of the Supreme Court Civil
Rules, “Fast Track Litigation”.

[2]            
This action arises from a motor-vehicle accident which occurred on September 15,
2008, in the City of Surrey.  It happened about 9:00 p.m.  It was a rear-end
collision: the plaintiff’s vehicle was struck by the vehicle owned by the
defendant, Jagroop Singh Gill and being driven by the defendant, Jasvir K.
Gill, the wife of the owner.  The accident took place near the intersection of
88^th Avenue and Fraser Highway.

[3]            
Liability is not in dispute.

[4]            
The issues are the extent of the plaintiff’s injuries and whether these
injuries were caused by the defendant.  The defendant’s position is that this
was a low impact collision and the plaintiff suffered little or no injury.  The
plaintiff’s evidence is that he suffers pain in his shoulders, neck and lower
back.  He says the pain was caused by the accident and it persists today.

[5]            
The damage to Mr. Naidu’s vehicle was slight.  The cost of repairs
was $534.17.  The only damage visible is a hole in the rear bumper
approximately ¾ inch in diameter.  This was likely caused by the bolt in the
front license plate holder of the Gill vehicle.

[6]            
Mr. Naidu recalled the damage as being more extensive.  He
described the collision as a “big bang”.  He thought the bumper required
replacing but accepted that the records showed it was repaired, not replaced.  He
did not accept that the damage was limited to a small hole.

[7]            
Mr. Naidu did not require medical assistance at the scene of the
accident.  He said he did not have any pain symptoms at the time.  He drove
home, had dinner and went to bed.

[8]            
Mr. Naidu reported the accident to ICBC but did not report that he
was injured until October 2009, just over a year after the accident.  He
explained that he reported the injury because his pain persisted.  He had
expected it to go away.

[9]            
Mr. Naidu testified that he had no pain on the evening of the accident. 
The following morning, however, he experienced pain in his neck, shoulder and
lower back.  He said it was hard to bend over and painful to brush his teeth.

[10]        
He drove to a walk in clinic and saw Dr. Narayanappa Dayanada.  He
reported feeling pain.  Dr. Dayanada did not prescribe medication.  He
advised Mr. Naidu to take Tylenol and Advil.

[11]        
Mr. Naidu has ongoing conditions: diabetes mellitus and
hypertension. Dr. Dayanada renewed Mr. Naidu’s diabetes medication
prescription.

[12]        
Mr. Naidu reported to Dr. Dayanada that he had a previous
motor vehicle accident that had caused neck pain.  Mr. Naidu told the
court this injury resolved a long time ago.  The accident was in 2000.  He has
similar soft tissue injuries but they were resolved by 2003.  He testified that
Dr. Dayanada advised him to see a chiropractor and he rejected that advice
because of previous experience with chiropractors.  Mr. Naidu agreed in
cross-examination that in light of Dr. Dayanada’s clinical notes, he may
have recommended physiotherapy and not chiropractic treatment.

[13]        
On October 30, 2008, about 6 weeks after the accident, Mr. Naidu saw
Dr. Adi Mudalair.  Dr. Mudalair entered in his clinical notes a notation
that Mr. Naidu was still having “neck, back pain”.

[14]        
Mr. Naidu visited the walk in clinic on three further occasions in
early 2009.  It is significant to me that in these visits there is no notation
made of any complaints about pain from the accident.  These were in February,
March and April of 2009.

[15]        
Mr. Naidu worked as a real-estate agent.  In 2009 the economy was
not doing well and in April he began working as a security guard for Paladin
Security.  This job was fairly strenuous.  The work involved patrolling at a
facility of BC Hydro.  Tasks included walking up stairs and standing for
extended lengths of time.

[16]        
There is a six month period between his visit to Dr. Mudalair in
October 2008 and his commencing work at Paladin Security in
April 2009.  There is no evidence that the plaintiff sought medical
treatment for his injuries during that six month period.

[17]        
In September 2009, Mr. Naidu went to see Dr. Daljit Herar.  Dr. Herar
had treated him previously but had suspended his practice for a time.  He
complained of lower back pain, as well as pain in his neck and shoulders.  He
saw him again in January 2010 and March 2011.  At the first visit, Mr. Naidu
was advised to see a chiropractor.

[18]        
Mr. Naidu acted on this advice.  He saw Dr. Garry Savan, a chiropractor,
on one occasion in September 2009.

[19]        
In 2010, Mr. Naidu took time off from his job as a security guard
in order to pursue a business venture.  He and a friend endeavoured to start a
business exporting rice from Vietnam to Papua New Guinea.

[20]        
This involved three long trips to Asia for a total of eight to ten
months.  Each of the trips included travelling to Hanoi and then long taxi
rides to rice operations outside Hanoi.  There was also travel from Hanoi to
Papua New Guinea.

[21]        
The plaintiff described such trips as being difficult.  Travel to Hanoi
begins with a twelve hour flight to Taipei and then a six hour flight to Hanoi.
While in Vietnam, the plaintiff took four hour taxi trips.  He also
experienced long flights from Hanoi to Papua New Guinea, through Singapore.

[22]        
Mr. Naidu testified that he coped with his discomfort on these long
flights by moving around and stretching.  He says he chose aisle seats and
would recline the seat.  The taxi rides included rests every hour or so.

[23]        
Mr. Naidu testified he was in pain on these trips, but did not
require prescription pain medication.  He did see a doctor in Papua New Guinea
but only for the purposes of obtaining medication for his diabetes.

[24]        
The business venture did not go forward.

[25]        
There was a further accident in January 2012.  Mr. Naidu rear ended
another vehicle in snowy conditions.  The damage to his vehicle was
considerably greater than in the 2008 accident.  There was damage to the right front
of his vehicle: the fender, the headlight, the hood, the bumper.  The cost to
repair it was $2,500.

[26]        
Mr. Naidu insisted his pain symptoms were the same before and after
this collision.

[27]        
He saw Dr. Herar on January 27 and February 11, 2012.  He
complained of headaches along with pain in his upper back and shoulders.  He
did not mention the 2012 motor vehicle accident to Dr. Herar.  Dr. Herar
suggested manipulation therapy from a chiropractor as well as physiotherapy and
“active rehab”.

[28]        
Mr. Naidu testified that his injuries have affected his ability to
perform household chores.  He said before the accident, he did most of the vacuuming
and mowing the lawn.  Since the accident, his wife and sometimes his son have had
to bear more responsibility for these chores.  His wife Karen Naidu
corroborated this.  She also testified that she has assisted him by massaging
his neck with oil on a weekly basis.

Analysis

[29]        
I agree with the defendant’s agrument that the plaintiff is not a “particularly
reliable historian”.  First, he told Dr. Herar that his vehicle had been
struck with great force; that the rear bumper had to be replaced; and that the
cost of repairs was $1,600.  In fact the collision was very minor.  The bumper
was repaired and not replaced at a total cost of $534.17.

[30]        
Mr. Naidu insisted in cross-examination that the damage to the car
was more extensive than the small hole displayed in the photograph.  That is
simply not borne out by the objective evidence and the testimony of Randy
Siemens, an ICBC Estimator.

[31]        
The defendant argues that the injuries were so minor that the court
ought not to compensate the plaintiff. When injuries cause no more than minor
discomfort for a few weeks, they are not in the realm for which a plaintiff
ought to be compensated: Lally v. Kallil, (unreported) March 2007
(BCPC).

[32]        
I do not agree that the injuries were so minor.  The evidence of the
plaintiff, and particularly the evidence of Karen Naidu, his wife, persuade me
that the plaintiff suffered symptoms for weeks if not months.

[33]        
The fact the collision was at low velocity does not rule out injuries.  In
Lubick v. Mei and another, 2008 BCSC 555, Macaulay J. said:

[5]        The Courts have long
debunked as myth the suggestion that low impact can be directly correlated with
lack of compensable injury.  In Gordon v. Palmer, [1993] B.C.J.
No. 474 (S.C.), Thackary J., as he then was, made the following
comments that are still apposite today:

I do not subscribe to the view that if there is no motor
vehicle damage then there is no injury. This is a philosophy that the Insurance
Corporation of British Columbia may follow, but it has no application in court.
It is not a legal principle of which I am aware and I have never heard it
endorsed as a medical principle.

[34]        
Mr. Justice Williams stated in Munro v. Thompson, 2009 BCSC 348,
at para. 52:

…I would observe that there is
no principle of law which says that because the damage to the vehicles is
slight or non-detectible, that it must follow that there is no injury.
Certainly, as a matter of common sense, where the collision is of slight force,
it is probably more likely that resulting injuries will be less severe than where
the forces were greater, such as to result in significant physical damage to
the automobiles. However, I would not hold that out as a reliable thesis, but
rather a statement of very general expectation. Suffice to say, I do not accept
that there can be no injury where there is no physical damage to the vehicles.

[35]        
I do not accept that the motor vehicle accident which happened in 2000
and the injuries suffered in it are a factor in this case.  Mr. Naidu said
that his injuries resolved within 3 years.  Karen Naidu, who appeared to the
court to have a clearer recollection than the plaintiff, corroborated this.  They
both testified that he did not suffer pain from that accident in the period preceding
the accident before the court.

[36]        
Mr. Naidu suffered soft tissue injuries in the 2008 motor vehicle
accident.  The injuries were not severe.  It is significant that no
prescription medication was suggested or prescribed; Mr. Naidu has been
able to work throughout the period since then.  No report of an injury was made
to ICBC for over a year.  Mr. Naidu was able to travel to Asia on three occasions
in 2010.  Mr. Naidu made three visits to a physician in early 2009 and
made no mention of pain symptoms from the accident.  Finally, while the extent
of the damage to the vehicle is not determinative for the reasons I just
explained, it is not irrelevant that the damage to the vehicle was minor.

[37]        
The evidence does not establish causation for the symptoms persisting past
approximately January 2009.  It is at least equally likely that the symptoms
which resulted in his complaints in April 2009 and September 2009
were caused by physically demanding work as a security guard.

[38]        
I am also unable to say that the plaintiff has established that the 2012
motor vehicle accident caused no symptoms.  It is significant that the plaintiff
visited his physician twice in the weeks after that accident, complaining of
pain but not mentioning the accident.

Non Pecuniary Damages

[39]        
I conclude that the symptoms from the September 2008 accident
persisted into early 2009.  The plaintiff has not discharged the onus of
proving that his symptoms since that time were caused by the accident.  I have
reviewed a number of authorities including Bagasbas v. Atwal, 2009 BCSC
512; Gradek v. Daimler Chrysler Financial Services Canada Inc., 2009 BCSC
1572; Ostovic v. Foggin, 2009 BCSC 58; and Ceraldi v. Duthie,
2008 BCSC 1812.

[40]        
An award of $4,000 is appropriate.

Wage Loss

[41]        
There is none claimed.

Future Wage Loss

[42]        
There is no basis, on the evidence, for an award for future wage loss.  In
Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson put it this way at
para. 32:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang
and by Tysoe, J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown.

[43]        
I am unable to say there is a real and substantial possibility of a future
event leading to an income loss.  Mr. Naidu is working as a security
guard.  He might return to real estate work in the future.

[44]        
Mr. Naidu is 58 years old.  He is able to work as a security guard or a
real estate agent.  He has had no loss of work since the accident.  In these
circumstances an award of loss of earning capacity is not indicated.

Special Damages

[45]        
Mr. Naidu has not provided receipts for the pain medication he says
he has been taking.  He also claims for chiropractic treatments and massage
therapy.

[46]        
The evidence does not establish that the need for chiropractic treatment
or massage therapy resulted from the 2008 accident.  I award special damages of
$50 to cover the costs of non-prescription medication.

Cost of Future Care

[47]        
The plaintiff argues that Dr. Herar said that Mr. Naidu would
benefit from manipulation therapy and physiotherapy as well as “active rehab”.  However,
the evidence does not establish that the symptoms requiring this treatment were
caused by the motor vehicle accident.  No award is made.

Loss of Housekeeping Capacity

[48]        
The plaintiff seeks an award for loss of housekeeping capacity.  In Jones
v. Davenport, 2008 BCSC 18 at para. 92, Halfyard J. stated that a plaintiff
must:

…establish a real and
substantial possibility that she will continue in the future to be unable to
perform all of her usual and necessary household work. It would also need to be
shown that the work that she will not be able to do, will require her to pay
someone else to do, or require others to do it for her gratuitously.

[49]        
That test has not been met here.

Conclusion

[50]        
Damages of $4,050 are awarded.  Costs may be spoken to if the parties
cannot agree.

“S.F. Kelleher J.”
The Honourable Mr. Justice S.F. Kelleher