IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20121026

Docket: M102307

Registry:
Vancouver

Between:

Priya
Sanora Ram

Plaintiff

And

Ranjivan
Rai and Anita Rai

Defendants

Before:
The Honourable Madam Justice H. Holmes

Oral Reasons for Judgment

[1]            
THE COURT:

INTRODUCTION

[2]            
Priya Ram suffered soft tissue injury as the front passenger in a car which
was rear ended on Nordel Way in Surrey on May 30, 2008.  Ms. Ram, who was
21 years of age at the time, was returning from the Richmond Night Market at
about midnight with her mother (the driver), her aunt, and one of her two older
sisters.

[3]            
The defendants admit liability.  The “fast track” trial concerned only
the amount of damages Ms. Ram should be awarded for her non-pecuniary (pain
and suffering) loss, for her past wage loss, and for her special damages.

[4]            
Ms. Ram claims that her injuries caused back pain, neck pain, and
headaches, all of which resolved within about a year, the neck pain and
headaches earlier than the other injuries.

[5]            
The main issue for determination is whether Ms. Ram has proven that
her injuries were as severe and long-lasting as she alleges they were, with the
effects she said they had on her daily life and activities.

[6]            
The defendants say that Ms. Ram’s injuries were mild and resolved
within about three months.  They submit that the evidence includes few, if any,
objective medical findings to support Ms. Ram’s claim that her injuries
lasted longer than that.  They say that any more serious or longer-lasting injuries
and effects would be inconsistent with the minimal damage to the two cars.

[7]            
I will now discuss the main disputed facts on which the parties base
their respective positions, and will then assess Ms. Ram’s damages in
light of my conclusions concerning those facts.

DISCUSSION

The Force of the Collision Was Not Minimal

[8]            
The damage to the Ram car was repaired to a total cost of about $800. 
There was no discernible damage to the Rai car; however, the bumper cover was
never removed to expose possible damage underneath.  On the evidence, the
collision caused no more than minor damage, if that, to the two cars.

[9]            
For the following reasons I find nonetheless that the impact of the
collision was not of insignificant force.

[10]        
Ms. Ram’s mother testified, and I accept, that shortly before the
collision, she noticed the driver of the other car (who turned out to be Ms. Ranjivan
Rai) driving behind her in an erratic manner.  Despite this, the impact came as
a surprise to Ms. Ram’s mother, with an unexpected “big bang”.  Ms. Ram’s
mother testified that the impact moved her car forward by between about three
and six feet.  Ms. Ram testified that her glasses flew off her face when
the impact threw her body forward, before she then fell back and her head hit
the headrest.  The impact caused the Ram family much alarm.  There was much
screaming within the car.  Ms. Ram testified that at first she
misinterpreted the collision as an earthquake.

[11]        
The defendant Ms. Ranjivan Rai implied in her testimony that her
car hit the Ram car with very little force.  She testified that before the
collision she had brought her car to a stop at the red light at 116^th
Street, immediately behind the Ram vehicle.  Ms. Rai testified that while
she was stopped she dozed off, her right foot became caught in the floor mat,
her left foot slipped off the clutch, and the car jerked forward to hit the Ram
car which was still stopped at the traffic light.

[12]        
For several reasons I do not accept Ms. Rai’s evidence that her car
was at a stop shortly before it hit the Ram vehicle.

[13]        
First, it is difficult to understand how Ms. Rai could have been
aware of the movements of each of her feet while she had been asleep.  Ms. Rai
testified that with the jerk forward and the collision, she woke up and realized
what had happened.

[14]        
Second, Ms. Rai acknowledged some alcohol consumption during the
evening, and testified that the police at the scene of the collision suspended
her right to drive for 24 hours.  With, also, the fatigue she acknowledged, Ms. Rai’s
alcohol consumption likely affected the accuracy of her observations at the
time and of her recollection later.

[15]        
Third, when after collecting her car from the impound lot, Ms. Rai took
it for inspection by ICBC and made a statement about the collision; she did not
mention having come to a stop immediately before the collision.

[16]        
Taken as a whole, Ms. Rai’s evidence was internally inconsistent
and generally unconvincing.

[17]        
As I have mentioned, Ms. Ram’s mother testified that Ms. Rai
drove in an erratic manner for some time shortly before the collision.  I
conclude that whatever may have caused Ms. Rai to do so — whether fatigue,
alcohol, inattention, or a combination of those or other factors — also
interfered with Ms. Rai’s observation or recall of the circumstances that
led to the collision.

Ms. Ram Immediately Reported Injury

[18]        
There can be no real dispute that Ms. Ram immediately reported
injury from the collision, and sought and continued medical treatment for some
considerable time.

[19]        
A police officer happened to be driving with or close to the Ram vehicle,
and stopped to make inquiries about the collision.  An ambulance arrived, and
both Ms. Ram and her mother went in it to the Surrey Memorial Hospital
hoping for medical attention.  However, the hospital was dealing with a police
incident and was (or was to be) in some form of lock-down, and Ms. Ram and
her mother were told that they would not be treated until at least the
morning.  They chose to go home.  They went to their family physician, Dr. Sandhu,
roughly two days later.

[20]        
Ms. Ram continued to see Dr. Sandhu over the following
months.

Ms. Ram Undertook Treatment and Therapy

[21]        
Significant in my view is that Ms. Ram took her medical situation
seriously, and spent considerable time and effort following the course of
therapy recommended to her.

[22]        
As I have noted, she saw Dr. Sandhu shortly after the collision and
from time to time afterwards.  Soon after the collision, Dr. Sandhu
referred Ms. Ram to chiropractor Dr. Steven Basra, and Ms. Ram
saw Dr. Basra on thirteen occasions between June 6, 2008 and the end of
August 2008.

[23]        
I accept Ms. Ram’s evidence that, during the period that she says
her injuries took to resolve, she did the series of exercises that first Dr. Sandhu
and then Dr. Basra directed her to do.  These she initially did four times
per day, then reducing to at least twice per day for most of the remainder of
the recovery period.  This no small effort provides some evidence that Ms. Ram’s
injuries continued.

Expert Evidence Supports Ms. Ram’s Position

[24]        
Much later the Ram family changed family physicians after Ms. Ram’s
mother took issue with Dr. Sandhu’s approach in relation to a different
claim.  Ms. Ram now sees Dr. Gurdit Parhar, who testified as an
expert witness in the trial.

[25]        
On the basis of his discussions with Ms. Ram and his review of Dr. Sandhu’s
clinical records insofar as Dr. Parhar could read them — and it is
difficult to do so — Dr. Parhar concluded that Ms. Ram sustained
musculoligamentous injuries to each of the cervical spine, lumbar spine, and
thoracic spine, as well as muscle tension headaches.

[26]        
Dr. Parhar has numerous qualifications in areas of family medicine
relating to occupational and other injury, including as a former medical adviser
to the Workers’ Compensation Board, as it then was, and as, currently, the
medical coordinator for the Workers’ Compensation Appeal Tribunal of British
Columbia.  His evidence was fair and helpful.  He testified that soft tissue
injury usually resolves much more quickly than did Ms. Ram’s; however, for
a small group of patients symptoms will take considerably longer to resolve. 
He described Ms. Ram’s injuries as moderate or severe, and not mild,
mainly because of their duration.

[27]        
The defendants submit that Dr. Parhar’s opinion can have little
weight because it lacks objective support, but for the following reasons I do
not agree.

Objective Medical Findings Support Ms. Ram’s Position

[28]        
When chiropractor Dr. Basra treated Ms. Ram shortly after the
collision, he found limitations in most aspects of Ms. Ram’s cervical and
lumbar range of motion, and that her trapezius and lower back muscles were hypertonic,
or unusually tight.  These are objective findings consistent with injury.

[29]        
Dr. Basra testified that at the time of the last visit, on August
31, 2008, Ms. Ram still had pain and symptoms.  Her neck pain had improved
a bit during the course of treatment and was now intermittent, but she still
had low pain with flexion.

[30]        
An incident sometime in the spring semester of 2009 (which ran between
January and April) provides some further objective indication of injury
continuing well past the three month period within which the defendants say Ms. Ram’s
injuries resolved.

[31]        
Likely in (as I find) March 2009, Dr. Sandhu sent Ms. Ram for
an x-ray of her lower back.  Ms. Ram testified that this was because she
still had periodic numbness in her legs associated with her injury, and the
numbness had caused her an embarrassing fall during a tutorial lab shortly
before.  Ms. Ram testified that Dr. Sandhu wanted to be sure that the
injury from the collision had not caused any form of fracture that was causing
the continuing numbness.

[32]        
The defendants submit that Dr. Sandhu likely ordered the x-ray
because of injury Ms. Ram sustained in the fall (in the tutorial lab) itself. 
However, this submission has no foundation in the evidence.  As Ms. Ram
described it, the “fall” was little more than a stumble:  as she was getting up
from a seated position, she fell forward but caught herself without hitting the
ground.  She testified, and I accept, that she sustained no new injury.

[33]        
I note also that Dr. Parhar rejected the defendants’ hypothesis that
Dr. Sandhu may have referred Ms. Ram for x-rays in February 2009, on
a date when, according to Dr. Sandhu’s clinical note at that time, the
defendants submit there was a discussion of recent trauma.  Dr. Parhar
explained that if new trauma had been the reason for the x-ray, the x-rays
would likely have been taken much sooner than they were, more than eight weeks after
the February date to which the defendants referred.  Dr. Parhar also
explained that a family physician hearing from a patient of continuing numbness
that had caused a stumble might well order an x-ray out of concern that he or
she had earlier missed some form of fracture from the original injury.

Adverse Inference From the Order of Witnesses?

[34]        
As the defendants submit, Ms. Ram has the burden of proving that
she was injured, and the Court should be cautious about relying on a
plaintiff’s subjective reports and evidence unless there is objective evidence
to corroborate them.

[35]        
The defendants submit in addition that the Court should draw an adverse
inference from the fact that Ms. Ram testified as the third witness in the
trial, and sat in the courtroom listening to the evidence of her mother and her
sister, who testified first and second.  The defendants note that this sequence
did not seem to be required for scheduling reasons, because the mother and the
sister remained in or around the courtroom after having given their evidence.

[36]        
A plaintiff is free to call her witnesses in the order she and her
counsel choose.  However, I agree with the defendants that for a plaintiff to
testify after hearing other witnesses testify may affect the weight that can be
given to the plaintiff’s own evidence about matters the earlier witnesses addressed. 
It may be difficult for the trier of fact to be confident that the plaintiff’s
account of events is her own, and is not coloured by or adapted to the
preceding evidence.

[37]        
I note also that it may be difficult for the trier of fact to appreciate
and assess the full import of the evidence of supplementary witnesses without
having first seen and heard the plaintiff herself in the witness stand. 
However, that observation relates to a matter of practice or effective
advocacy, and not to one of law, evidence, or civil procedure.

[38]        
Madam Justice Humphries discussed these problems at greater length in Gustafson
v. Davis, 2012 BCSC 1576 at paras. 112-116.

[39]        
Mindful of the potential dangers in the sequence of witnesses in this
trial, I find the situation to be a relatively unusual one in which I can be
fully confident that Ms. Ram’s evidence was not contaminated in any way by
her having heard her mother and her sister give evidence before her.

[40]        
The three witnesses gave accounts of the collision and its effects on Ms. Ram,
apparent or felt as the case may be, that were consistent with each other in
their broad outline but which each spoke clearly and convincingly from the
witness’s own perspective.  The mother and the sister testified about what they
saw, while Ms. Ram testified about what she felt.

[41]        
For example, Ms. Ram’s mother testified in general terms that after
the accident Ms. Ram spent much more time alone in her room.  Ms. Ram
in her testimony did not describe her conduct in quite the same way.  She
testified that after the accident she felt generally unwell and could not keep
up with her usual activities, friends, school, and work.  Sometimes her
headaches were bad and she would need to stay alone in a dark room.  These were
not identical accounts, but they described the same response from different
perspectives.

[42]        
In another example, Ms. Ram’s sister testified that Ms. Ram’s
posture was affected by the accident.  She testified that Ms. Ram would
tend to stoop, and as she began to recover the sister would often touch Ms. Ram
on the nose to remind her to straighten up.  Ms. Ram made no mention of
stooping or her sister touching her nose, and referred only in passing to her posture
as an aspect of the consequences of her back pain.  Ms. Ram’s evidence was
in no way inconsistent with her sister’s, but spoke of the pain she herself
felt, rather than the stooping the sister saw.

[43]        
To my observation, when Ms. Ram had no personal knowledge about a
matter, she said so; she did not borrow from the testimony she had heard her
mother or her sister give shortly before.  For example, Ms. Ram testified
that she did not know whether the impact of the collision had moved the Ram car
forward.  She had been in the courtroom when her mother testified earlier during
the same day that the impact moved the car forward by between 3 and 6 feet,
shifting it into the intersection.

[44]        
In short, I found each of Ms. Ram and her mother and her sister to
be impressive and entirely credible witnesses.  While I have carefully
considered the implications of the order in which they gave their testimony, I
find no indication at all that Ms. Ram’s evidence was affected by her
mother and sister having testified before she did.

Conclusion

[45]        
I conclude that Mr. Ram’s injuries and their effects were as she
described them in her testimony.

NON-PECUNIARY DAMAGES

[46]        
The findings I have discussed allow me now to turn to the subject of
non-pecuniary damages for Ms. Ram, and to assess them in light of those
findings and others I will now outline.

[47]        
As I find, at the time of the accident Ms. Ram was an active and
healthy young woman of 21 years of age, who was busily engaged not only in
full-time post-secondary studies but also in two part-time jobs.  She had an
active social life with friends that involved playing several different sports
as opportunities presented.  She enjoyed gym workouts and doing workout exercise
tapes at home.

[48]        
As I find, the accident left Ms. Ram with throbbing pain in her
back, neck, and head that became intermittent over time, with occasional
numbness in her legs.  The pain in the various areas gradually resolved within
a year, the back pain last of all.

[49]        
The effects of the injuries caused Ms. Ram to miss work and some
school during the few days or a week after the accident.  They made her
withdraw from social activities over a longer term, so that she seemed to her
family to be withdrawn and reclusive, no longer her bubbly self.  These effects
resolved as her injuries resolved, within about a year.

[50]        
No case is alike, but previous case authorities nonetheless provide a
useful guide for an award of non-pecuniary damages.

[51]        
The defendants submit that on the case authorities the appropriate award
for non-pecuniary damages is about $5,000.  They rely on the following authorities:

·                
McInnes (Guardian ad litem of) v. Insurance Corp. of British
Columbia, [1999] B.C.J. No. 1995 (S.C.)

·                
McPherson v. Harper, 2000 BCSC 87

·                
Way v. Frigon, 2001 BCSC 573

·                
Mohammed v. Rai, 2005 BCSC 1918

·                
Bagasbas v. Atwal, 2009 BCSC 512

·                
Brar v. Kaur, 2010 BCSC 1220

·                
Lee v. Dueck, 2012 BCSC 530

[52]        
However, many of those cases involved less severe or shorter lasting
injuries than Ms. Ram’s.  Some involved plaintiffs who had not undertaken
the treatment or therapy recommended to them, or whose reports or evidence
about the injuries were considered unreliable.

[53]        
Ms. Ram submits that on the case authorities the award for
non-pecuniary damages should be between $15,000 and $17,000.  She relies on the
following authorities:

·                
Bray v. Gaete, 2004 BCSC 335

·                
De Leon v. Harold, 2010 BCSC 1802

·                
Sun v. Sukhan, 2012 BCSC 365

·                
Woods v. Chahal, 2008 BCSC 1555

[54]        
In my view, the facts in those cases are generally more similar to the
facts in this case than are those in the authorities on which the defendants
rely.

[55]        
On all the evidence, I conclude that the appropriate award for
non-pecuniary damages in this case is $16,000.

SPECIAL DAMAGES

[56]        
The defendants agree that Ms. Ram’s special damages amount in total
to $876.25, for the expenses she bore in relation to the chiropractic therapy
and hot yoga sessions recommended to her, and to replace scratched lenses on the
glasses which came off in the collision.

PAST INCOME LOSS

[57]        
Ms. Ram claims a total of $643.95 gross as income she lost because
her injuries obliged her to give up a few shifts at each of her part-time jobs
in the week or so following the collision.

[58]        
The defendants submit that Ms. Ram has no documentation to support
her claim.  However, I accept her evidence that she had arranged to work the
shifts in question, and gave them up because of her injuries.  Ms. Ram
testified, and I accept, that she based her claim on notes on her calendar
concerning those shifts.

[59]        
The award for past income loss will therefore be as claimed.

OTHER MATTERS

[60]        
Are there any other matters that I should deal with?

[61]        
MR. FAHEY:  There will be a costs application, My Lady, and there’s
sort of three distinct issues arising out of your decision, and I suggest that
we stand the matter down just for a couple of minutes.  We may not have to
argue them.  I can speak to my friend.

[62]        
THE COURT:  Do you agree that would be useful?

[63]        
MS. DEMPSEY:  Yes, that would be useful to stand down so my friend
and I can –

[64]        
THE COURT:  If you do want to argue them, is it – well, we can address
that when we come back.

[65]        
MR. FAHEY:  We spoke at the end of the day yesterday and we’ve come
prepared to argue costs, if Your Ladyship has time to hear us on it this
morning.

[66]        
THE COURT:  I will let you discuss the matter and then if need be we
will figure out the scheduling.

[PROCEEDINGS ADJOURNED]

[PROCEEDINGS RECONVENED]

[SUBMISSIONS RE COSTS]

[67]        
THE COURT:  The judgment awarded to the plaintiff Ms. Ram exceeds
the value of an offer she made to settle the proceeding on March 29, 2012.  Is
there any difficulty in my mentioning the amount of her offer in my reasons?

[68]        
MR. FAHEY:  No, I don’t see any difficulty there, My Lady.

[69]        
THE COURT:  Thank you.  Ms. Ram’s offer was to settle the proceeding
for $13,786.25 plus costs.  She now applies for an order under Rule 9-1(5)(b)
and (6) for double costs from the date of that offer.  Ms. Ram’s non-pecuniary
damages awarded after the short trial were $16,000; her past wage loss and
special damages were each between $500 and $1,000; it is accordingly common
ground that that judgment exceeded the offer.

[70]        
I have heard capable submissions from each of the parties.  The
defendants submit that in the consideration of whether (in the language of
subrule 6(a)) the offer to settle “was one that ought reasonably to have been
accepted”, the Court should take into account that at all times the plaintiff’s
claim was contemplated to be less than the monetary amount of the Small Claims
Court’s jurisdiction.  They submit that without the order I made earlier this
afternoon, Ms. Ram would not have received any costs other than allowable
disbursements.

[71]        
Ms. Ram submits that the Court should respond negatively to what
her counsel describes as the defendants’ policy-driven approach to obliging
plaintiffs to litigate relatively small claim in order to recover.

[72]        
Whether or not this submission is well-founded — and I do not decide
this point — it cannot properly apply in this case because the evidence of Ms. Ram’s
own expert witness inadvertently included incorrect information which may well
have seriously misled the defendants about the strength of Ms. Ram’s
claim.  The error suggested that Ms. Ram may have had a pre-existing
injury, and that she certainly had pre-accident chiropractic treatment, despite
indicating that she had had neither.

[73]        
Dr. Parhar’s report noted (under “Medical History”) that before the
collision Ms. Ram “was attending a chiropractor for general spine
maintenance”.   This comment appeared to inspire a line of cross-examination of
Mr. Ram and her lay witnesses, but was eventually revealed as inaccurate. 
Asked about the comment in the trial, Dr. Parhar quickly identified it as
an unfortunate error on his part, for which he apologized.  The comment or any
suggestion of pre-existing injury then clearly had no foundation at all; I
believe I am correct in saying that the defendants made no further reference in
the trial to Ms. Ram having had chiropractic treatment or possibly back
problems before the collision.

[74]        
Dr. Parhar’s report was served, I am told, in approximately January
2012, before Ms. Ram made her offer.  There is no suggestion of bad faith
on anyone’s part, but the error in the report may nonetheless have misled the
defendants about the strength of Ms. Ram’s claim, both in relation to
possible pre-existing injury or treatment, and in relation to her credibility
in denying them.  The error made the defendants’ failure to accept Ms. Ram’s
offer to settle more reasonable than it would otherwise have been.

[75]        
Ms. Ram submits that the defendants could have explored the matter of
possible previous chiropractic treatment by reviewing her history with MSP. 
However, it is not clear that this would have assisted:  Mr. Dempsey
advises that many chiropractic doctors operate outside the MSP plan.

[76]        
In all the circumstances, I am not persuaded that Ms. Ram should
have double costs, except for those relating to the period after Dr. Parhar
gave his evidence in the trial.  That period is relatively short; I will ask
counsel to determine the length.  Ms. Ram will have double costs for that
period.

[77]        
Ms. Ram will have ordinary costs for the proceedings before that
time.  As she requests, her ordinary costs will be in the indicated sum (for a
three-day matter) of $11,000, plus an amount to reflect the cost of preparing
for and attending for a previously scheduled trial.  Her costs will be set at a
total of $12,500, then to be adjusted for the short period that will attract the
double costs award.

[78]        
MR. FAHEY:  So it would be a day and a half, I think, for the
double costs, because Dr. Parhar finished yesterday at 12:30?

[79]        
THE COURT:  I think that is probably correct, unless your friend has a
different view.

[80]        
MR. FAHEY:  And then, Your Ladyship, just to give you – I didn’t
turn Your Ladyship to tab 2, which is Rule 14-1, and I am just pointing out the
14-1(15) gives Your Ladyship the authority to make that order on the award at
trial, the $1,500.  That’s the rule.

[81]        
THE COURT:  Thank you.

[82]        
MR. FAHEY:  You may order an award of costs for part of a
proceeding, et cetera.

[83]        
THE COURT:  I think you referred to that before, but thank you.  It may
have been before lunch that you referred to that.

[84]        
MR. FAHEY:  I’ll draft the order.  There’s a tax issue we need to
deal with and some deductions under s. 25 under the Insurance Act. 
My friend and I can resolve that.  We can work out the numbers, and there’s pre
and post-judgment interest.  Thank you.

[SUBMISSIONS RE INTEREST RATE]

[85]        
THE COURT:  We will go with Mr. Fahey’s understanding that there is
no discretion, the rate is indicated.  If that is not the case and the matter needs
to be determined, then please contact the court registry and we can set up a
time.  I hope that will not be necessary, for the sake of your clients more
than anything else.

[86]        
Is there anything else we should address?

[87]        
MR. FAHEY:  Nothing from the plaintiff, My Lady.  Thank you.

[88]        
MR. DEMPSEY:  Nothing from the defendants.  Thank you.

[89]        
THE COURT:  Thank you very much.

“H. Holmes, J.”

The Honourable Madam Justice H. Holmes