IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140929

Docket: M142329

Registry:
New Westminster

Between:

Harbhajan Kaur
Bains

Plaintiff

And

Hee S. Park

Defendant

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

Introduction and overview

[1]            
The plaintiff is a 49 year-old pharmacy assistant and mother of two
children. She sues the defendant for damages arising out of a motor vehicle
collision that occurred on May 18, 2010. The defendant admits liability for the
collision. This trial was therefore concerned only with the assessment of the
plaintiff’s damages.

[2]            
The plaintiff claims non-pecuniary damages, past loss of income/earning
capacity, loss of housekeeping capacity and special damages.

[3]            
The collision occurred when the plaintiff was stopped at an intersection
and the defendant, who was in front of her car and had proceeded into the
intersection intending to turn left, unexpectedly backed into the plaintiff
when the light turned red. The plaintiff tried to warn the defendant of the
impending collision by honking her horn, to no avail. The plaintiff braced for
the impact by gripping the steering wheel with her hands and keeping her right
foot on the brake pedal.

[4]            
The impact caused minimal damage to the plaintiff’s vehicle. The only
damage that is visible in a photograph taken of the front of her car following
the collision is small dent in the bumper.

Nature of the Plaintiff’s Injuries and treatment

[5]            
The collision caused the plaintiff’s head to be thrust forward in the
vehicle and then backwards onto the headrest. The plaintiff testified that
immediately after the impact she felt a warm sensation in her upper back.

[6]            
The plaintiff first sought medical attention from her family physician, Dr. Choo,
on May 20, 2010. He diagnosed neck and lumbar strains and prescribed Tylenol No. 3,
one to two tablets four times daily as needed for pain relief, and Diclofenac,
50 mg, one tablet twice daily, for reduction of muscular pain and inflammation.
Dr. Choo gave Ms. Bains a note to remain off work until June 2, 2010.
At the time of the accident, Ms. Bains was working as a clerk at Costco as
what is called a Front End Assistant. Her job primarily involved loading
customers’ purchases into a shopping cart or cardboard boxes after they had
been scanned by the cashier.

[7]            
Between May 20, 2010 and March 23, 2011, Ms. Bains saw Dr. Choo,
his locum, or another doctor, Dr. Singh, on ten occasions concerning
complaints arising from the collision.

[8]            
On May 31, 2010, Ms. Bains was complaining of headaches and right
knee pain in addition to her neck and back pain. Her knee showed no swelling and
had full range of movement.

[9]            
On June 14, 2010, Dr. Choo advised Ms. Bains to return to work
on June 15, 2010, on a reduced schedule of five hours per day.

[10]        
On June 30, 2010, Ms. Bains advised Dr. Choo that her symptoms
were improving. Dr. Choo advised her to start working six hours per day
for two weeks and seven hours per day for another two weeks.

[11]        
By July 26, 2010, Ms. Bains told Dr. Choo that her neck and
back pains were improved and that her headaches were much better. Dr. Choo
advised her to work six hours per day, every other day for two weeks at
modified duties.

[12]        
On August 9, 2010, Ms. Bains told Dr. Choo that her back pain
was reduced, but she felt tired in the mornings and was sleeping about twelve
hours per day. She described tenderness in her left neck and shoulder area and Dr. Choo
prescribed Diclofenac in gel form, to be applied to the painful areas. He
advised Ms. Bains to work five hours per day for one week and six hours
per day for the next week.

[13]        
On August 25, 2010, Ms. Bains saw Dr. Choo complaining of
continuing pain on the left side of her neck. At that time, she was working at
Shoppers Drug Mart as well as Costco. Dr. Choo advised her to start
working eight hours per day at modified duties.

[14]        
Ms. Bain did not see Dr. Choo again until March 23, 2011, when
she complained of a pressure sensation in her head and was diagnosed with
tension headaches. Dr. Choo testified that, in his opinion, the pressure
sensation was not due to the motor vehicle accident of May 18, 2010.

[15]        
Ms. Bain next saw Dr. Choo on July 6, 2011, complaining of
intermittent headaches.

[16]        
It appears from Dr. Choo’s report that he did not see Ms. Bains
again until August 14, 2012, when she informed him that she had been involved
in another motor vehicle collision on March 12, 2012. In her testimony, Ms. Bains
referred to this collision as a “major” accident.

[17]        
Dr. Choo did not refer Ms. Bains to any specialists because of
the symptoms she described arising from the May 18, 2010 motor vehicle
collision. Imaging by x-ray and MRI was unremarkable, except that the L5-S1
disc space was narrowed with marginal spurs, which Dr. Choo believed were
due to degenerative disc disease that he described in his testimony as likely
resulting from “normal wear and tear”.

[18]        
In terms of treatments following the May 18, 2010 collision, Ms. Bains
received two chiropractic treatments on May 25 and July 16, 2010. She also
received 20 physiotherapy treatments from July 12, 2010 until August 13, 2010.
Thereafter, she did not attend for any further physiotherapy treatments until
July 2011.

[19]        
In summary, with respect to the injuries sustained by Ms. Bains as
a result of the May 18, 2010 collision, Dr. Choo set out the following
diagnoses in his medical-legal report dated March 15, 2013:

1.       Aggravation
of cervical strain of moderate severity, meaning soft tissue injury with no
evidence of bony or neurological injury.

2.       Aggravation
of lumbar strain with progression to chronic mechanical back pain in patient
with known degenerative changes in the lumbar spine, meaning soft tissue injury
of her lumbar spine of moderate severity with no evidence of neurological or
bony injury.

3.       Headaches.

4.       Right
quadriceps tendonitis.

5.       Left
chest wall strain.

6.       Thoracic
strain.

[20]        
Dr. Choo noted that Ms. Bains had been involved in a number of
prior motor vehicle accidents and falls, causing strains to her neck and back.
He stated that she had neck and back pain on and off before the May 18, 2010
collision. Dr. Choo wrote that “given that Ms. Bains had pre-existing
neck, back and right knee pains prior to the MVA on May 18, 2010, it is more
likely than not that she aggravated her chronic pains in these areas”.

[21]        
Indeed, between April 1997 and May 2010, Ms. Bains sustained
injuries as a result of nine motor vehicle incidents and seven falls. Most of
the incidents caused injury to Ms. Bains’ neck and back, while some also
caused injury to her knee.

[22]        
The most recent event prior to May 2010 that caused injury to Ms. Bains’
neck and back was a fall in February, 2010.

[23]        
Ms. Bains evidence was that she was not symptomatic at the time of
the May 18, 2010 collision. Dr. Choo’s report does not provide evidence of
her last attendance for any neck, back or neck pain prior to May 20, 2010.

Evidence of Ms. Bains’ Recovery

[24]        
Ms. Bains testified that she was in bed for a few months before she
could do any household chores. She said her sister had to help out with chores.
She testified that she returned to work part-time in June 2010 and that she was
fully recovered by July 2011.

[25]        
Ms. Bains’ sister testified that for two months after the
collision, she stopped in at Ms. Bains’ home on her way home from work
every day and spent about an hour and one-half, doing cooking, cleaning and
washing dishes. She testified that after two months she stopped in at Ms. Bains’
home to help with housework every other day and that after three or four months
she went there twice each week. The last time she went to Ms. Bains’ home
to help with housework was in February 2011. She remembers that time because
her birthday in in February. Ms. Bains sister testified that Ms. Bains
got married that month. Her sister told her that she was okay.

[26]        
Ms. Bains’ evidence and that of her sister concerning the effect of
her injuries on her ability to do housework and other routine activities is somewhat
in conflict with what Ms. Bains told Dr. Choo. In his report, Dr. Choo
wrote:

Ms. Bains advises me that she stopped doing laundry,
vacuuming, sweeping and mopping at home for about two months following the MVA
on May 18, 2010. She also stopped mowing her lawn for a similar period of time.
Ms. Bains did not stop washing dishes. She gradually resumed these tasks
after two months and was back to normal after five to six months. I do not
foresee that she would have had future difficulties with her house work based
on her injuries.

Ms. Bains advises me that she went out less often with
her children during the summer months due to her pains. She used to play board
games with her children or go for walks with them. She also enjoyed going to
movies with her children. Ms. Bains stopped these activities for about
three months following the MVA on May 18, 2010. She was able to resume these
tasks after three months. Ms. Bains also reduced socializing with her
friends for two to three months.

Ms. Bains reported that she
used to jog or walk once per week for 30-40 minutes. She stopped jogging for
two to three months and then resumed this activity afterwards.

[27]        
Ms. Bains returned to work full-time on August 26, 2010 in a
position as a Member Service Assistance, which involves standing at the exit of
the store and briefly comparing the good that the customers are carrying out of
the store with their receipts. She did that job for three days, then returned
to the position of Front End Assistant on August 29, 2010, for one day before
transferring to a different warehouse and taking a part-time position as a
Certified Pharmacy Technician, the position she continues to hold.

[28]        
Dr. Choo’s report contains the following additional statements
regarding Ms. Bain’s period of disability:

…Ms. Bains resumed work on
June 7, 2010 at modified duties. She started working four hour per day but
stopped work again on June 11-14, 2010, due to her pains. She resumed working
on June 15, 2010 and progressively increased her work hours until she returned
to her regular job at part-time hours on August 31, 2010. Ms. Bains
advises me that she switched to a new position as a pharmacy technician at that
time as it was a less strenuous job. She worked 20-25 hours per week. I feel
that her period of total and partial disability were reasonable given the
extent of her injuries.

[29]        
I find as a fact that Ms. Bains was probably largely recovered by
the fall of 2010, five or six months after the May 18, 2010 collision, as she
reported to Dr. Choo. By that time she had returned to work, albeit in a
part-time job. She had not seen Dr. Choo since July 2010 and she ceased
going for physiotherapy treatments in August 2010.

[30]        
At the end of August 2010, Ms. Bains accepted a new part-time
position as a pharmacy assistant. That is a position that she had thought of
seeking out for some time, having taken a course to obtain her certificate as a
pharmacy assistant in 2009. I believe that she took the new position largely
because she believed that it would provide her with a better opportunity for
the future, expecting that it would lead to a full-time position.
Unfortunately, it did not. No full-time positions became available until 2013,
and she was not successful in her application at that time. Dr. Choo had
concluded, in August 2010, that Ms. Bains could return to her former
position full-time, on modified duties. I am satisfied, based on the evidence
of Ms. Blanchard from Costco, who gave evidence concerning the time that Ms. Bains’
missed from work, that it is likely that Costco would have continued to offer Ms. Bains
the accommodation that she might require in order to sustain full-time
employment until she was completely recovered.

Non-pecuniary loss

[31]        
Ms. Bains was 45 years old when she was involved in the collision
on May 18, 2010. Even though the accident was a minor impact, it is not
contested that Ms. Bains sustained injury as a result. She suffered
soft-tissue injury to her neck, back and knee in, as well headaches and some
pain in her chest.

[32]        
Ms. Bains has an unfortunate history of having been involved in
numerous prior motor vehicle collisions as well as a number of falls, most of
which caused some injuries to her neck and back. She also has a history of
depression.

[33]        
It is trite law that the defendant need not compensate the plaintiff for
any debilitating effects of a pre-existing condition if the plaintiff would
have experienced them regardless of the accident (Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 35). There must be at least a measurable risk
that the pre-existing condition would have manifested itself in symptoms in the
future regardless of the plaintiff’s negligence. The measurable risk need not
be proven on a balance of probabilities, but given weight according to the
probability of its occurrence.

[34]        
In his report, Dr. Choo noted that:

Prior to the MVA on May 18, 2010
the patient reported that she had intermittent neck and back pains. These pains
worsened following the new MVA. She denied having any headaches immediately
before the MVA.

[35]        
It is Dr. Choo’s opinion that Ms. Bains suffered an aggravation
of pre-existing injuries and that her pre-existing condition likely made her
recovery from this collision slower than it would otherwise have been.

[36]        
It is my opinion that there was a real risk that even if she had not
been involved in the collision on May 18, 2010, Ms. Bains would have
experienced some neck and pain discomfort from time to time. I am satisfied
that the collision aggravated her condition and resulted in persistent pain and
discomfort for a number of months, beyond the period of time that one might
normally expect given the circumstances of the collision.

[37]        
As a result of the injuries, Ms. Bains’ ability to perform her
usual household chores was curtailed for a few months and her ability to fully enjoy
time with her children and other leisure activities was curtailed for five or
six months. She was off work until about mid-June 2010, then was able to return
on a graduated return to work program that was supported by her employer.

[38]        
I am satisfied that Ms. Bains had likely recovered to her
pre-accident state by the fall 2010 or by February 2011, at the latest.

[39]        
Ms. Bains seeks non-pecuniary damages in the range of $25,000 to
$35,000. Her counsel provided a number of cases in support of that range,
namely:

·      
Parihar v. Allan, 2006 BCSC 1505 – $25,000. The plaintiff
suffered neck and back soft-tissue injuries that persisted for approximately
eight months and caused intermittent symptoms for a further six months. The plaintiff
still had flare ups three or four times per month by the time of trial, some three
years after the injury.

·      
Kahlon v. Prasad, 2006 BCSC 2039 – $25,000. The plaintiff
suffered musculoligamentous injury to his neck and back. The injuries resolved
within 14 months and, during that time, the plaintiff experienced ongoing pain
in varying degrees and limitations on his function. He had some 48 chiropractic
treatments.

·      
Krause v. Gill, 2006 BCSC 1459 – $30,000. The plaintiff
suffered a moderate soft tissue injury to his neck and back in August 2003,
which caused numbness and tingling in his hands, as well as anxiety. He was not
able to work for two weeks following the accident. His numbness, tingling and
anxiety-related symptoms resolved within six months. His neck and back pain
persisted until late 2004 or early 2005. The trial judge found that he had
substantially recovered from his injuries within 18 months of the accident. He has
some ongoing symptoms, but they were not of a debilitating nature and did not restrict
his activities to any significant degree.

·      
White v. Stonestreet, 2006 BCSC 801 – $35,000. The
plaintiff suffered moderate soft tissue injury to his neck, shoulders and back,
as a result of the accident. These soft tissue injuries had significantly
improved within six months and were largely resolved about a year-and-a-half after
the accident.

·      
Asere v. Whelton, 2006 BCSC 1617 – $25,000. Mr. Asere
suffered moderate to severe pain in his neck, shoulders, and lower back, as a
result of a motor vehicle accident on February 2004. This pain continued at a
moderate level through the spring of 2004, improving further until December
2004, when he was approximately 90% improved. Mr. Asere continued to
improve with occasional setbacks, but in late April and early May 2006, he
suffered a flare up of his symptoms. The trial judge found that Mr. Asere
would eventually make a complete recovery, but that it would "take several
years" and may require "intermittent medications and physical
therapies”.

·      
Gozra v. Wunderlich, 2009 BCSC 114 – $35,000. The
plaintiff suffered a mild to moderate soft tissue injury that aggravated a
pre-existing and asymptomatic condition. The plaintiff’s injuries had largely
resolved within 14 months, with some ongoing problems that could be treated by anti-inflammatories,
and steroid and anesthetic injections.

[40]        
Not surprisingly, the defendant submits that the appropriate range of
damages is much lower, in the order of $10,000, with an upper limit of $15,000.
The case he referred to in support of his submission include the following:

·      
Johannson v. National Car Rental (Canada) Inc., 2008 BCSC
1873 – $15,000. The plaintiff was involved in a car collision in August 2005
and suffered a mild to moderate soft tissue injury to her upper back and neck.
Between the date of the accident and the end of the year, she saw her chiropractor
approximately 25 times. Her injuries were largely, if not entirely, resolved in
early 2006, approximately nine months after the accident.

·      
Laboucane v. Piane, 2009 BCPC 0086 – $3,000. The plaintiff
complained of pain in her neck and down her shoulder and arm. She missed work
for approximately one month and received 11 physiotherapy treatments.

·      
Gradek v. DaimlerChrysler Financial Services Canada Inc.,
2009 BCSC 1572 – $8,000. The plaintiff suffered soft tissue injuries in a
collision dated May 13, 2006. By June 5, 2006, his doctor advised him to return
to work, which he did. In December 2006, the plaintiff advised his doctor that
he had been fine for the last four to five months. It appears that he had pain
for only about three months.

·      
Jahn v. Manesiotis, 2003 BCSC 1260 – $10,000. The
plaintiff sustained soft tissue injuries to her neck, upper back and right
shoulder. The injury was initially of moderate severity, but then it gradually
resolved to a point of full resolution within 15 months of the accident. The
court found that an appropriate award of non-pecuniary loss would be $12,500,
but reduced that amount by 20% on account of the plaintiff’s pre-existing
conditions which the trial judge held resulted in a “crumbling skull”
situation.

[41]        
As the plaintiff recognizes, each case must be decided on its own
particular facts and other cases can, at best, provide general assistance in
determining what is just and fair compensation for this plaintiff, given her
injuries and the manner in which they have affected her enjoyment of life. It
appears to me that each of the cases cited by the plaintiff involve somewhat
more serious injury and loss than the present case.

[42]        
In addition, as I have found, the plaintiff’s pre-accident condition was
such that there was a risk that she would have experienced some neck and back
pain, on-and-off, even if she had not been involved in the collision on May 18,
2010, in the same way she had experienced on-and-off pain prior to that
collision.

[43]        
Having read and considered the cases referred to by counsel and having
regard to the nature of the injuries, their duration and their effect on the
plaintiff’s day-to-day activities, I am of the opinion that an award of $15,000
would be appropriate, but for her pre-existing condition and the risk that she
would have experienced on-and-off symptoms even without the aggravating
injuries. I will reduce that amount by10% on account of the plaintiff’s
pre-existing condition.

[44]        
In conclusion with regard to this head of damages, I am of the opinion
that an award of $13,500 will provide Ms. Bains with fair and reasonable
compensation for her pain, suffering and loss of amenities, as a result of the
collision of May 18, 2010.

Past loss of income/capacity to earn income

[45]        
The plaintiff divided her claim for past loss of income into two
periods:

(a)      May 19,
2010 until August 30, 2010, the date she took the part-time position as a
pharmacy assistant; and

(b)      August
30, 2010 until June 30, 2011, the date by which she says she had recovered.

[46]        
The income loss for the first period is based on the evidence of Ms. Blanchard,
the payroll clerk for Costco. Ms. Blanchard testified that for the period
from May 19 to August 8, 2010, Ms. Bains’ gross loss of income was
$6,441.50. The defendant accepts that figure.

[47]        
Ms. Blanchard also testified that during the week of August 9 to
15, 2010, Ms. Blanchard could have worked eight hours per day, but that
she only worked five hours per day. I calculate her loss for that week to be
$324.15 (15 hours at $20.85 per hour plus $4 per hour premium for three hours
on Sunday).

[48]        
During the week of August 16 -22, 2010, Ms. Bains worked only on
August 6 for six hours. She was off a total of 34 hours, eight of which were on
a Sunday for which she would have received a $32 premium for the eight hours. I
calculate her gross loss for that week to be $740.90.

[49]        
The plaintiff claims no loss for August 26-29, 2010, as she worked full
time on those days.

[50]        
I find that her gross loss of income for the period up to August 30,
2010, is therefore $7,506.55. I would expect that counsel can agree upon the
net loss after income tax. If not, they have liberty to apply.

[51]        
With regard to the period following August 30, 2010, I am not satisfied
that Ms. Bains had to change her employment to a part-time position
because of the injuries she suffered in the collision. I am satisfied that had
she continued to work at the same position, Costco would have continued to give
her accommodation by letting her work as a Member Service Assistant at lighter
duties to the extent possible. However, I believe there is a possibility that
she may have had to miss the occasional shift or part of a shift until she was
fully recovered in the fall of 2010, and that she suffered a past loss of
earning capacity until she was fully recovered.

[52]        
Such a loss of past earning capacity cannot be calculated with
precision. In my view, an award based on eight shifts of eight hours per day,
or approximately $1,350, would be reasonable. I, therefore, allow a gross award
for the period after August 2010 in the amount of $1,350.

[53]        
The plaintiff also claims a loss based on the fact that her semi-annual bonuses,
paid at the end of 2010 and in June 2011, were less than they otherwise would
have been if she had not been injured and had continued to work full-time. Ms. Blanchard’s
evidence supported the plaintiff’s claim in this regard, but she was unable to
offer any opinion concerning the amount by which the plaintiff’s bonus was
lessened.

[54]        
I award the plaintiff $500.00 on account of loss of bonus.

Loss of capacity to perform housekeeping tasks

[55]        
The plaintiff advanced her claim under this head based on 1.5 hours per
day for 60 days, 1.5 hours per day every other day for a further 60 days and 15
hours thereafter (up to February 2011) at the rate of $15.00 per hour. She
claims a total of $2,250 under this head.

[56]        
No evidence was presented to justify the hourly rate.

[57]        
The plaintiff, in fact did not pay her sister, and did not suffer any
pecuniary loss as a result of not being able to perform some of her
housekeeping functions. I accept, however, that a plaintiff is entitled to
compensation for past loss of housekeeping capacity even though she has not in
fact incurred any actual expense. However, it also appears that compensation
for such a loss can be included as part of the general damages for
non-pecuniary loss. In my view, that is an appropriate way to deal with this
issue in the present case. My award of pecuniary damages has taken into account
the fact that for a period of time Ms. Bains was rendered less able to do
her own housework and relied on the generosity of her sister.

Special Damages

[58]        
I accept Ms. Bains’ claim for the cost of chiropractic treatments
and physiotherapy up to August 2010, in the total amount of $220.

Summary

[59]        
The plaintiff is entitled to judgment in the amount of $23,076.55 less
the appropriate amount for income tax, as follows:

[60]        
Subject to consideration of any offers of settlement that may have been
delivered, Ms. Bains is entitled to costs at Scale B.

“B.M.
Joyce J.”