IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140723

Docket: M116575

Registry:
Vancouver

Between:

Naomi Jane Tweddle

Plaintiff

And

Helmut Losch

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
The plaintiff seeks general and special damages as a result of injuries
she suffered in a motor vehicle accident on March 3, 2010 on Saltspring Island.

[2]            
The plaintiff was a passenger in a motor vehicle driven by her mother
that was rear-ended at the intersection of Upper Ganges Road and Vesuvius Road.
Liability has been admitted. The collision occurred at low speed and damage to
the vehicles was difficult to discern. The plaintiff had been turned to the
left at impact, and had the impression that she was struck by a cross country
ski that was lying between the seats of her mother’s compact car. She had a
headache immediately after the accident and developed a stiff neck. When she
saw her doctor, Dr. MacPhail, on March 5, 2010, she had a stiff neck,
although her range of motion was “pretty normal” according to the doctor’s
note. She also complained of a tender spot to the right of the mid-forehead
without visible sign of injury.

[3]            
Dr. MacPhail expected the plaintiff to recover in three weeks or less.

[4]            
The plaintiff was still complaining of symptoms as of May 31, 2010, or
some three months later. She had been to a physiotherapist twice and been given
exercises. She found wearing a hard hat at work caused headaches and she still
had stiffness in her neck although it did not interfere with her activities
except to somewhat limit their duration.

[5]            
By June 21, 2010, Dr. MacPhail noted “whiplash seems to have resolved.”

[6]            
The plaintiff is a mining engineer who, at the time of the accident,
worked at a mine in the Northwest Territories on a two-week on two-week off
shift. This required her to take a series of flights every two weeks to the
worksite and back to Saltspring Island where she lives with her boyfriend in a
small house on property owned by her parents.

[7]            
In June of 2010, the plaintiff went to South Africa to attend the World
Cup of Soccer.

[8]            
On September of 2010 following her return, the plaintiff saw Dr.
MacPhail who noted that her neck was “slowly improving” and that she was able
to perform at work.

[9]            
Between September 2010 and April 2011, the plaintiff and her boyfriend
went on an extended motorcycle trip from Saltspring to Southern Argentina. The
tour covered some 39,000 kilometres and involved back roads travel and camping
out most of the time.

[10]        
The trip was chronicled on a blog. A summary the plaintiff posted
suggested that the trip took 194 days, 56 of which were rest days. On riding
days the plaintiff travelled an average distance of 285 kilometres, while the longest
ride was 895 kilometres. The blog chronicles travel over some rough terrain. On
day 14, the plaintiff wrote:

We started out on a pretty
rough/rocky road. And when I say rocky I no longer mean little rocks…these were
pretty big rocks, with some small loose rocks thrown in for fun. We approached
a small river crossing with a rocky creek bed. I dropped my bike before the
crossing in the loose rock and it was at this point that I didn’t want to go
any further on this road. It was getting increasingly more challenging as we
climbed and my bike is not the tool for the job. At this point we realized we
had taken the wrong road for Marshall Pass. We were not ½ way but I was
out-voted in the group and we decided to continue forward.

On day 29, the plaintiff wrote:

At around lunch time I had an accident: I ran into a horse,
or rather the horse ran into me. Alberto was leading and it was a straight bit
of road. Out of nowhere this horse T-boned me. I never even saw it, and neither
did Alberto when he drove by. It hit the front of my bike hard and redirected
my path to the opposing ditch, where I crashed. Despite a few scratches on my
helmet and crash bars, and one or two holes in my pants I was okay.

Since this is my second time
crashing this bike into a ditch I can undoubtedly say the BMW F800GS lives up
to [its] ad campaign of being unstoppable. Due to the nature of the
accident I was expecting the bike to be unrideable, but all that was needed was
an adjustment to my barkbuster and mirror and some zapstraps for the pelican
case (which of course disconnected from the bike). The horse is probably in
worse shape since he rolled and left skid marks on the road. The other thing
that I observed was that not a single passing car stopped to see if we needed
help getting the bike out of the ditch, and to top it off when they went around
us they drove as close as possible.

On day 30, the plaintiff wrote:

It was a noisy choice staying
downtown last night, but it was kind of nice for a change: being at the center
of town. It made the experience more real. My arms and right shoulder
were sore when I woke up from the accident. Sore in the same way they would
feel after windsurfing during a storm, so no biggie; I could ride.

On day 107:

And then it happened; the law of averages finally caught up
to me. We had had several encounters with vehicles driving in our lane but
today I had the worst one. I was following a car, and behind me was a large
truck. I was coming downhill, around a corner. When I came through the corner
there was a large truck in our lane. It was an OH SHIT moment. The car in front
of me braked hard, and then I braked hard and for a few short moments I was
sure I was going to run into the back of the car. Somehow I didn’t (thank you
ABS again?) but I did fall over. The combination of coming downhill, leaning
through a corner and a slight slope on the actual road all conspired against
me. Braking so hard to avoid crashing into the car in front of me completely
shifted the weight of my bike and it was too much for me to hold up.

So there I was with a bike lying on [its] side in the middle
of the road. Thankfully the truck behind me didn’t run me over but due to his
large size and the way he was taking the corner he was now blocking traffic
(because he was stopped for me). Alberto was nowhere to be found because he had
gone up ahead. I motioned for some guys (who were stopped in the opposite lane)
to help me pick up my bike. About 3 guys helped me pick it up and I could tell
by their expressions that they were surprised with how heavy it was. I quickly
took off once I had got back on the bike a little embarrassed as I was holding
up traffic but also totally freaked out from the whole incident because I was
sure I was going to crash. I don’t even know what happened to the truck that
was in our lane. All I can remember is watching the bumper of the car in front
of me coming closer and closer.

I spent the rest of the twisty
sections a little more nervous than normal. That is the second time I’ve come
around a corner to find a huge semi in my lane. And what is most frustrating is
that there is nothing you can do about it and no way to foresee it. The bike
was fine, I was more or less fine (a little sore in my leg) but I want to get away
from the terrible Colombian drivers as fast as I can. Another reason why we are
no longer interested in lingering in Colombia.

On day 138, the day the
plaintiff went 895 kilometres:

This has by far
been our longest one day haul this entire trip. What better way to get back
into biking shape! My ass wasn’t too pleased. The BMW seat still sucks.

Problem: we now have new engines so
that means we need to get the 1000km service done again. To solve this problem
we got up at 4am to try and pound out 1000kms of nowhere mileage.

On day 162:

Back in Argentina it was very windy. Windier than normal. My
neck was dying. We had planned to stop off at a gas station we saw on the way
down. Turns out it was closed for lunch and with the crazy wind I was not into
waiting around for it to open.

We ended up running out of gas,
both of us, while we were detouring to El Calafate to get gas. That wind kills
the gas mileage! While we were stopped at the gas station I convinced Alberto
we could easily make it to Tres Lagos today, so that’s what we did. I
remembered seeing a nice sign for camping when we came through last week and
hoped that was the case.

On day 163:

It was a windy day and it’s
starting to really annoy me. Riding in the wind is fine, for a day but riding
in the wind day after day after day is really annoying. I found myself yelling
at the wind from inside my helmet cause I was so angry at it. It ruins a
potentially good riding experience. So we battled the wind most of the day. It
really kicks you around and that is sometimes unwelcome on gravel.

Also on day 163:

The last push to Perito Moreno is
mostly paved so we made good time. The wind was killer though and my neck hated
me by the time we made it to town. We had barely eaten all day and it took us
longer than expected, cause of the biker stops, to make it to Perito Moreno. It
took us a bit of effort to find a decent campground since we wrote off the one
we ended up staying at cause it had a lame sign on the main road. The pricing
structure for camping was retarded but we didn’t care. We quickly put up the
tent and got changed so we could walk into town for some food. We ate at a hotel
and the food was nice but midway through my meal I completely crashed. I could
barely stay awake. My neck pain was giving me a headache, and my face was wind
burned. I barely made it through the rest of dinner and back to the tent I was
so burned out.

[11]        
Day 173:

The dirt road quality had been
deteriorating but it was equal to Ruta 40. After the mining town the road got
really bad. There was surprise river crossings, surprise sand traps, and the
most horrendous washboard I had ridden on with this bike. I was sure one of us
was going to go down in one of the several sand traps as they would appear
without warning, but we didn’t. Go ice tires! The washboard was exceptionally
bad though and both of us were hating every minute of riding our bikes. This
went on for a while until finally we reached the Argentinian border building.

Also on day 173:

Everyone talks about the strong
winds in Patagonia and while you know this to be true before you go, until you
experience it yourself it’s hard to conceptualize. I didn’t find the wind to be
dangerously strong what I did find is that it slowly broke down my will. Riding
in strong wind day after day after day is physically and mentally exhausting.
That is what I found to be the worst part of the wind. Isolated, one day of wind,
would be fine.

[12]        
The blog entries are interlaced with photographs of spectacular scenery
and roads and conditions that are obviously demanding.

[13]        
In another blog from August 2012, the plaintiff recounted an incident in
Washington State:

I had a disagreement with a rut
and bailed badly. My bike landed on my foot and I was pinned in the middle of
the road. Thankfully the G9s allowed me to yell at Alberto that I had fallen
and that my bike was lying on my foot. I completely lost the back end and the
rear tire came around and the bike fell over. I didn’t even really have a
chance to react because before I knew it I was lying on the ground. I escaped
injury free, to my surprise. A big thanks to my Klim jacket and my Sidi boots
no doubt. The fall kind of made me a little more hesitant throughout the rest
of the morning.

[14]        
The medical record picks up on July 13, 2011, after the South American
motorcycle trip. Dr. MacPhail notes that the plaintiff’s whiplash injury in
March 2010 that was treated with physio and resolved, but that the neck pain
had returned in the last two to three months with occasional headaches. The
note suggests that there had been no recent trauma or strain.

[15]        
On November 21, 2011, the note is that “neck still bothers her with pain
and tightness.”

[16]        
On June 7, 2012, the long flights to Yellowknife are reported to have “a
couple of times” caused “neck stiffness and headache the next day.”

[17]        
On January 17, 2013, Dr. MacPhail noted “No medical problems other than
“chronic discomfort in [right] neck and shoulder.”

[18]        
The only medical-legal report the plaintiff tendered was from Dr.
MacPhail. She reviewed her records as follows:

On March 3,2010, Ms Tweddle was riding in the front passenger
seat of a Ford Focus that was stopped at the intersection of Vesuvius Bay Road
and Lower Ganges Road. Ms Tweddle’s mother was the driver and was waiting for
traffic to clear so that she could turn right onto Lower Ganges Road. While
stopped, their vehicle was hit from behind by a similar sized vehicle. Ms
Tweddle was restrained with a seat belt; her seat had a headrest and no airbags
deployed. At the moment of impact Ms Tweddle was looking in a forward-to-left
angle as she was reading a sign at the local cinema. She told me that she was
struck on her forehead by some skis that bounced up from where they had been
stored lengthwise along the middle of the vehicle. She did not lose
consciousness. Her vehicle was pushed forward into the intersection. They did
not strike any other vehicles; Ms Tweddle’s mother was able to drive her vehicle
safely to the side of the road.

Immediately following the accident Ms Tweddle had a headache
that she described as “severe” and worse bending over. She took a non-steroid
anti-inflammatory medication, applied ice and rested that evening. The
following day she continued to experience headache along with pain and
stiffness in her neck. When seen March 5, 2010 she had a tender spot on the
right side of her forehead and tender neck and upper shoulder muscles, worse on
the right with good range of motion. Normal activity was recommended and rapid
recovery was expected. Unfortunately she continues to be symptomatic.

Ms Tweddle presented on May 31, 2010 because she was still
experiencing headaches, especially at work when underground (she is a mining
engineer) wearing a headlamp & hardhat. She noted stiffness in her (R) neck
and trigger points in her mid scapular area; she had tried therapeutic massage
without long-term relief and was following the exercise program recommended by
a physiotherapist. She was not avoiding activities but doing less intense
biking (ie shorter time period) and was changing her work underground to
shorter but more frequent stints. At that visit she had full neck movement but
pain with turning/tilting to the right. She also had a palpable tender trigger
point in her mid trapezius on the right and tense tender right parascapular
muscles. Physiotherapy was recommended.

When reviewed on June 21, 2010 Ms Tweddle felt that wearing
her headlamp/hard hat was no longer aggravating her neck but she complained
that her neck hurt after sleeping on the airplane she uses to commute to work
in the North. Previous to the accident this had not been a problem. At that
visit I couldn’t palpate any asymmetry of the trapezius and thought her
whiplash had pretty much resolved.

The following summer (July 13, 2011) Ms Tweddle presented
with recurrent (R) neck pain and occasional headaches over the preceding 2-3
months despite no new trauma or strain.

When in for unrelated issues on November 21, 2011 Ms Tweddle
commented that her neck continued to bother her with pain and stiffness.

On June 7, 2012 Ms Tweddle returned for review. Again she
noted that commuting to her work involves several long flights. Before the
accident in March 2010 she had been able to sleep on the planes without a
problem. As indicated previously, she stated that since the accident she had
been experiencing neck stiffness and a headache the day after arriving at her
destination. With anti-inflammatory medication these symptoms resolve within 48
hours. The last time this had happened was March 2012. She has had 2 flights
since then without symptoms afterwards. On those flights she made specific
efforts to stay awake and maintain good posture. She was consistent in
stretching every day. Despite this she mentioned some discomfort (R) neck if
she drove in truck for long periods and also when riding her motorcycle (with
helmet of course) but she was not restricting her activities.

As of September 2012 …

1.   I believe the March 3, 2010
accident was the most significant factor in causing Ms Tweddle’s symptoms.

2.   Ms Tweddle did not have significant
pre-existing injuries and had not previously suffered from the symptoms
described. She did have a previous Grade 1 Whiplash injury, sustained in a
rear-end collision in June 2001. She was seen only once with respect to that
accident.

3.   The prognosis for Ms Tweddle’s
injury is uncertain given that she did not achieve complete recovery soon after
the accident Because of this I believe she is likely to continue to have
long-term symptoms. Ongoing exercise, physiotherapy and massage are likely to
provide the greatest symptomatic relief.

4.   Although she endures neck stiffness
and discomfort during the significant travel required for her employment and
finds it difficult to ride a motorcycle for any significant period of time, she
is able to continue to work at her full employment potential in her current
occupation. She may, however, be limited from pursuing some vocations that
involve repetitive neck movement, significant neck strength, or prolonged
immobility.

5.   Ms Tweddle should not have an
incapacitating disability as a result of the accident.

6.   To maintain her current function
and for symptom relief I recommend ongoing regular exercise, physiotherapy and massage.

7.   The benefits of physiotherapy and
massage therapy are:

i.    Recovery/maintenance of normal
physiologic range of motion of her cervical and thoracic vertebrae and
shoulders.

ii.   The cost of these therapies is
available upon consultation with providers of these therapies.

8.   It is unlikely that Ms Tweddle will
develop new acute medical conditions arising from this accident, however, she
may have suffered subclinical damage to the articulating surfaces of the joints
of her spinal column, which would manifest as osteoarthritis at an earlier age
than at which she may have naturally developed this disease with typical
age-related degenerative changes.

9.   No further medical imaging is
indicated at this time.

[19]        
It is notable that there is nothing in the report about the interval
during which the South American trip took place. It is also clearly mistaken in
suggesting that the plaintiff had difficulty riding a motorcycle for “any
significant period of time” as of September 2012. On September 27, 2012 she was
on an extended motorcycle trip in Washington State.

[20]        
The defence submitted that the plaintiff’s credibility is in doubt. This
was largely because it was the defence that discovered the blog. That material certainly
casts doubt on certain answers to questions posed at the Examination for Discovery
such as questions 122-123:

122      Q        Now,
have your recreational activities been affected by the accident?

A        Yes.

123      Q        And
how? Can you describe that?

A        One of the main ones would be
motorcycle riding. Wearing a helmet bothers me. So I haven’t stopped doing it.
I just try to manage the length that I do it at a time, like reduce the amount
of kilometres or like time I would spend on the bike per day, so that sort of
thing.

Or questions 86-91:

86        Q         Okay.
And you mentioned you had had some vacations other than the work travel. What
were those?

A          For what time period?

87        Q         After the
accident?

A          I went
to South Africa in July 2010. I went to Lima in May 2011. We are 2012
right now, right?

88        Q         Yes. Not for much longer.

A          Yeah.
What have I done? And then in Canada I went to a friend’s wedding in April
2012. That’s probably it.

89        Q         Where was the wedding?

A          In Calgary.

90        Q         How long were you in Lima?

A          A month.

91        Q         And
I think there was mention of the South Africa trip in your doctor’s records.
You were there for four weeks?

A          I think more like five, but I mean, yeah.

[Emphasis added]

[21]        
On question 108:

108      Q         Now,
since the accident have you been in any other accidents?

A          No.

[22]        
It is clear that:

(a)        the plaintiff’s motorcycle riding was not
significantly inhibited;

(b)        the plaintiff did not mention how she got to
Lima or the extended “vacation” in South America between September and April
2010-2011;

(c)        the plaintiff had
been in subsequent accidents.

[23]        
The defence called on engineer, Darrin Richards, a specialist in
accident reconstruction. He convincingly established that the dynamics of the
collision could not possibly have resulted in the ski flying upward as the
plaintiff postulated.

[24]        
The defence had the plaintiff submit to an independent medical
examination by Dr. Simon Horlick, an orthopaedic surgeon. He examined her on
February 20, 2014, providing the most recent medical evidence before the court.
He noted:

Currently, she
continues to have two complaints. One is headache and the other is neck pain.
With respect to the headaches, these occur on an intermittent basis. They tend
to be focal to the frontal aspect of her head and not associated with visual
disturbances or loss of consciousness. The headache is improved with Advil
which she takes rarely. The headaches do not prevent her from working. The
headaches tend to occur in situations of stress or after flying for prolonged
periods of time. The headaches do not wake her from sleep at night. There is no
significant family history of headaches or neurologic conditions.

Her second area
of complaint is intermittent neck pain and stiffness. The pain is in the right
paracervical region. It is described as a tightness. The pain is intermittent
and tends to be exacerbated with motorcycle riding or prolonged sitting at her
computer. The pain does not radiate into her upper extremities. The pain is not
associated with paresthesias or pins and needles. It is not associated with
loss of dexterity or grip strength. The pain is not exacerbated with cough or
sneeze. The pain is not associated with difficulty swallowing. The pain does
not wake her from sleep at night. She finds treatment with massage therapy
beneficial as well as the occasional use of Advil. She has not had to escalate
her usage of Advil over the past two years.

His assessment was as follows:

Naomi Tweddle was involved in a motor
vehicle accident on March 3, 2010 resulting in subjective complaints including headache
as well as cervical spine pain and stiffness. She denies any history of
significant headache or cervical spine complaints prior to this history of
accident.

Currently, she has had reduction in the
severity and frequency of her symptoms but continues to have intermittent
complaints of headache and cervical spine pain and stiffness.

With respect to her headaches, I would defer
further comment in this regard as it is outside my area of usual clinical
practice. Suffice it to say, however, that based on her history and physical
examination, there are no features of her headache that would suggest to me a
significant underlying neurologic pathologic process and certainly not one
related to the motor vehicle accident. However, I would suggest if the headaches
continue to be an ongoing problem for this individual, that she be assessed by
an appropriate specialist in this regard such as a neurologist.

With respect to her cervical spine
complaints of pain and stiffness, physical examination is devoid of any measurable
impairment. Her neurologic examination in addition is entirely normal.

Her diagnosis would be in keeping with a
myofascial injury to her right paracervical area. Her symptoms are improved
with massage therapy and intermittent use of Advil.

She does not require any further
investigations or specific treatments. She has not had any interference with
respect to her ability to work as a mining engineer predominantly in a desk
capacity despite these complaints of headache and neck pain, and it is my opinion
that these subjective complaints will not result in progressive impairment or
significant disability with respect to either her work or avocational pursuits.
I would note that Mrs. Tweddle, despite her intermittent complaints of headache
and neck pain, has continued to participate on a regular basis in both on- and
off-road motorcycle riding. This type of activity, in my opinion, would
significantly tax her cervical spine osseous and myofascial structures, and if
she is able to undertake these activities at the frequency that she currently
is able, then it would suggest that the likelihood of any significant
structural abnormality being present in her cervical spine is highly unlikely.
At present, I do not feel that Mrs. Tweddle needs to have ongoing massage
therapy on a regular basis to manage her current neck complaints, but should
she choose to continue to do so, there certainly is no harm in continuing on in
this regard.

I would also
note that Mrs. Tweddle’s biggest complaint of neck pain and stiffness is
typically on her transit days which require taking four flights over a period
of 12 hours. I do not find it surprising that she would get some occasional
neck pain and stiffness as a result of this type of lengthy travel, and that is
not necessarily suggestive of any significant pathology in her cervical spine
or germane to injury specifically related to the motor vehicle accident of
March 3, 2010.

[25]        
In the witness box, Dr. Horlick allowed that a person with a significant
spinal problem in the neck area would likely feel exacerbations of that problem
when riding motorcycles.

[26]        
The plaintiff maintains that she has ongoing neck pain and headaches
that she attributes to the motor vehicle accident of March 3, 2010. She appears
to be fit and did not appear in discomfort at the trial. She has suffered no
loss of income and does not seek to establish any future damages beyond general
damages for pain and suffering and for special damages.

[27]        
The only real question is what to make of the evidence respecting the
duration of the plaintiff’s pain and suffering.

[28]        
I think it is conceded that despite the relatively low speed of impact
the plaintiff suffered some injury in the accident. In this regard, I accept
the law as set out in Gordon v. Palmer, 78 B.C.L.R. (2d) 236, where the
court noted:

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.

[29]        
I accept that the plaintiff seemed to have recovered by June and that
thereafter she may have had occasional flare ups of neck pain and headaches for
some months thereafter.

[30]        
The evidence strongly suggests, however, that by the time the plaintiff
embarked on the South American trip, her neck problem could not have been more
than an occasional annoyance. I accept the thrust of Dr. Horlick’s evidence
that were it more serious, the sort of stress on the plaintiff’s spinal column
produced by the arduous sort of motorcycle riding she enjoyed day after day
would certainly have exacerbated her symptoms. I recognize that the blog had a
rather different purpose than to chronicle the plaintiff’s physical complaints,
and that her failure to mention them in that context did not mean that there
weren’t any. But there is a role for common sense in the assessment of the
damages. The plaintiff could simply not have been suffering from neck pain and
headaches to any serious degree by the time she embarked on the motorcycle
trip. Thereafter, I accept the effect of Dr. Horlick’s evidence to be that the
sort of injury suffered in a rear-end motor vehicle accident is not so different
from the stress caused by motorcycle riding that it is possible to say that
they are distinct things.

[31]        
In other words, I am of the view that, against that background whatever
the plaintiff’s current complaints, they cannot be confidently related, on a balance
of probabilities, to those she suffered in the motor vehicle accident. I accept
Dr. Horlick’s view that the plaintiff’s complaints are the kind of thing a
person might experience, in any case, after experiences like 12 hour flights,
and are “not necessarily suggestive of any significant pathology in her
cervical spine or germane to injury specifically related to the motor vehicle
accident.”

[32]        
I think the plaintiff may sincerely believe that any pain she suffers in
that part of her body is accident-related. I do not take quite the view of
“credibility” the defence suggested. I do, however think, that whether
consciously or not, the plaintiff sought to minimize the implications of her
actual level of physical activity when she was questioned on Discovery.

[33]        
The parties are a considerable distance apart on quantum. The plaintiff
submits that the range of general damages is $17,500 – $35,000. The defendant
says that the range is $4,000 to $6,000.

[34]        
I accept that a consideration of general damages includes the factors
described in Stapley v. Hejslet, 206 BCCA 34, at para. 46:

[46]   The inexhaustive list of common factors cited in Boyd
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 arguably
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] B.C.J. No. 163 (QL), 2005 BCCA 54).

[35]        
The plaintiff’s authorities include Montes v. Lee, 2007 BCSC
1238. There, the injuries were summarized at para. 32 as follows:

[32] I
conclude that Mr. Montes’ shoulder injury resolved within a couple of months.
His neck pain within a year and his low back injury, his most serious
complaint, largely resolved within 18 months of the accident, although he
continues to experience extreme pain from time to time, and headaches from time
to time, all resulting from the accident.

[36]        
Damages were assessed at $30,000.

[37]        
In Macalanda v. Fulgar, 1999 CanLII 2405 (B.C.S.C.), the
plaintiff’s injuries were described as follows:

[11]     The medical experts are
in general agreement that Mr. Macalanda suffered a moderate to moderately
severe soft tissue injury. His injuries have resolved for the most part,
although he continues to experience neck and back pain at the end of the work
day from time to time, and the occasional flare up if he tries to do anything
strenuous. He has not reached the point where he can engage in the activities
he did before the accident, such as dancing and basketball. His girlfriend and
a friend testified that Mr. Macalanda’s personality has changed since the
accident. He is now cranky, irritable and less considerate of others. However,
the prognosis for recovery is good. There is no suggestion that Mr. Macalanda
exaggerates his complaints. He says that but for the pain he continues to
suffer, he would take on a second job. I believe him.

[38]        
Damages were assessed at $35,000.

[39]        
In Goertz v. Kujala, 2006 BCSC 667, the injuries were described
as follows at para. 23:

[23]     The plaintiff suffered
headaches and neck pain for two weeks following the accident. Her neck pain had
resolved within two weeks but shoulder pain persisted for a month, becoming
occasional within five months. The plaintiff managed to continue with physical
activities through shoulder discomfort without serious aggravation requiring
medical intervention for the most part. There were two flare-ups in two and a
half years that required medical attention. The plaintiff continues to suffer
from occasional shoulder pain three and a half years after the accident and is
at risk for re-injury given her very active lifestyle and occupation. The
plaintiff has continued with her very active lifestyle because of her career
focus and history of keen fitness. She has passed the RCMP fitness tests
recently with better qualifying times and weights than in 2002. She has,
however, made adjustments to her work and mentality to accommodate her concern
for re-injury.

[40]        
Damages were assessed at $25,000.

[41]        
In Kahlon v. Prasad, 2006 BCSC 2039, the court described the
injuries and damages as follows:

[59]     As far as general damages are concerned, the
Plaintiff’s symptoms lasted for over a year – that is, close to 14 months.
During that period of time, in varying degrees, he suffered ongoing pain which
limited the involvement that he had in his work, although it never resulted in
any time lost at work. In addition, he had trouble sleeping.

[60]     These injuries and the pain from them did interfere
in his personal life. It reduced the level of his participation in the
activities associated with his wedding, including precluding him and his bride
from going on the honeymoon trip that they had planned. Many of these
activities cannot be repeated because they are activities that take place at an
event which usually only occurs once in one’s life.

[61]     Further, applying the
various principles set out in the cases produced in this proceeding, I am
satisfied that the Plaintiff should be awarded the amount of $25,000 in general
damages. That is the amount that he is awarded.

[42]        
In Lubick v. Mei, 2008 BCSC 555, the injuries were summarized as
follows:

[17] I am
satisfied that Lubick sustained a minor soft tissue neck injury and had
headaches as a result of the accident. Those resolved within a short time. He
also suffered a moderate low back soft tissue injury. The plaintiff largely
recovered from the low back injury by late May 2004 but has had some minor
residual discomfort since, although it does not significantly affect his
activities now.

[43]        
The disability period was just over one year. The court assessed damages
at $18,000.

[44]        
In Mirsaeidi v. Coleman, 2014 BCSC 415, the court summarized
damages as follows:

[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.

[45]        
The defendant’s authorities include a well-known quotation from Price
v. Kostryba, 1982 CanLII 36 (B.C.S.C.)

In Butler v. Blaylock et al. decided October 7th,
1980, (Vancouver Registry B781505), I referred to counsel’s argument that a
defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries, because complaints of pain cannot easily be disproved. I
then said:

"I am not stating any new principle when I say that the
Court should be exceedingly careful when 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.

"An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true reflections
of a [continuing] injury."

There is little or no objective
evidence of continuing injury beyond the end of December, 1979, or January,
1980. And the recurrence and continuation of the plaintiff’s complaints to the
extent described are not consistent. The plaintiff’s description of her
disability and her examination for discovery is but an example of this. In
short, the evidence does not satisfy me to the extent required in a civil
action that the defendants should be liable for the plaintiff’s complaints beyond
the end of January, 1980.

[46]        
In Barrows v. Wong, 2006 BCPC 407, the court summarized the case
as follows:

15     I find that the Claimant suffered a mild soft tissue
injury as a result of the motor vehicle accident on October 2, 2001. The acute
phase of the injury had resolved within two weeks, and there was slow but
steady improvement until November 26, when she was cleared to return to work
part time. The injury was mostly resolved by December 13, when she was cleared
to return to work full time. There was mild residual pain for a further three
months. I find that the injury was totally resolved by mid March 2003.

16     I find that the Claimant was disabled to the extent
that she was not able to return to work until November 26, when she was
available to work half time, and that she was able to return to work full time
by December 13. Unfortunately, her employment status with the Vancouver Police
Department was not a full time position, and was dependant on shift work being
available. There were no regular shifts available to her after December 13. I
am unable to attribute this to the accident. The Claimant says that she
understood that she had lost her seniority as a result of the accident. There
is no evidence to support this. She says she was intending to apply for a
position with the Police Department. She apparently did make some applications,
and was not successful. I cannot attribute this to the accident. She was
looking at a career as a police officer prior to the accident. I find that
subsequent to the accident she abandoned that plan, and I am not able to
attribute that to the accident.

17     I order the Defendant to
pay non pecuniary damages of $5,000.

[47]        
In Zulj v. Findlay, 2005 BCPC 6, the court summarized the case as
follows:

20     The claimant suffered a mild whiplash injury which
resulted in some pain and discomfort in her shoulder and neck, as well as
headaches. The effects of the injury subsided within 4 to 6 months. There was
some interference with her ability to perform her usual household duties, but not
enough to prevent her from doing them.

21     Considering all of the
above circumstances, I award damages in the amount of $4000.

[48]        
I think this sufficient to demonstrate the relative ranges the parties
submit to the court. I am of the view that the plaintiff’s pain and suffering
was intermittent after a few weeks and occasional up until she embarked on the
trip to South American. Thereafter, such pain and suffering as she occasionally
experienced, if any, was subsumed into the stresses she was routinely imposing
on her spinal column such that following that trip, it is quite impossible to
say, on a balance of probabilities that her present complaints of neck pain and
headaches relate to the motor vehicle accident.

[49]        
Each case has aspects that are comparable to the case at bar. Mirsaeidi
v. Coleman, 2014 BCSC 415, is recent, and requires no adjustment for the
effects of inflation. It is more serious than the plaintiff’s case inasmuch as
in addition to neck pain and headaches there was a serious element of back
pain. The plaintiff in that case, similarly to the plaintiff in this, did not
particularly modify his activities but continued on despite the pain he was
suffering.

[50]        
Taking the foregoing into consideration, I am of the view that a fair
assessment of the plaintiff’s general damages is $12,000.

[51]        
Special damages have been presented as something over $4,000, although I
think it is conceded that the plaintiff, who took massage treatment before the
accident, might have taken some of the treatments claimed in any event.

[52]        
The defendant submits that the proper figure is less than $500. I do not
think it is possible to be precise. I do think the plaintiff’s injuries were
largely limited to the few months after the accident. I fix special damages at
$1,500.

 “McEwan
J.”

_______________________________

The Honourable Mr. Justice McEwan