IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141105

Docket: M149532

Registry:
New Westminster

Between:

Nadeen Andraws

Plaintiff

And

Reginald Anslow

Defendant

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
Introduction

[1]            
The defendant has admitted complete fault for a November 22, 2011,
collision in which a car that was driven by him rear-ended a van driven by the
plaintiff.

[2]            
The collision was at a very low speed and resulted in only approximately
$100 in damage to the bumper of the van.

[3]            
The plaintiff, a woman in her twenties, claims that she suffered soft
tissue injuries and headaches as a result of the impact.

[4]            
The plaintiff seeks as an award:

[5]            
As described below, the plaintiff has not met her burden to show that
the injuries she claims were caused by the accident.

II.              
Pleadings

[6]            
In her Notice of Civil Claim, filed March 1, 2013, the plaintiff
pleaded, with respect to her injuries:

2.      As a
result of the Collision, the Plaintiff has sustained physical injuries and
other loss and damage. Particulars of the Plaintiffs injuries are as follows:

(a)     musculo-ligamentous
injuries;

(b)     injury
to the neck;

(c)     injury
to the back;

(d)     injury
to the shoulders;

(e)     headaches;
and

(f)      other
injuries as may become known to counsel.

collectively, the “Injuries”)

3.      The
Injuries, loss, and damage sustained by the Plaintiff have caused and continue
to cause the Plaintiff pain, suffering, loss of enjoyment of life and physical
disability.

4.      As a
result of the Injuries, the Plaintiff has sustained and continues to sustain
loss of earnings, the particulars of such income loss to be provided.

5.      As a
result of the Injuries, the Plaintiff has sustained loss of income earning
capacity.

6.      As a
result of the Injuries, the Plaintiff has incurred and continues to incur
special damages, loss and expense for treatment. The Plaintiff continues to
undergo such medical care and treatment and to sustain loss and expense
thereby, particulars of which are to be provided.

7.      As a
result of the Injuries, the Plaintiff has incurred and continues to incur “In
Trust” personal services provided by others, particulars of which will be
provided by the Plaintiff at the trial of this action.

8.      As a result of the Injuries,
the Plaintiff has been rendered disabled from performing household duties and
yard work, and has thereby suffered a loss of domestic capacity and will
continue to suffer such losses in the future.

[7]            
The defendant pleaded in his response (in part):  “The Plaintiff
sustained no injury, loss, damage or expense as a result of the Collision.”  In
other words, the defendant has stated from the outset that the plaintiff
suffered no injuries from the accident and it necessarily follows, in the
defendant’s view, that any injuries so claimed must result from exaggeration.

III.            
The Collision

[8]            
The collision occurred at very low speed.  The defendant’s car was behind
the plaintiff’s van in a line leaving Guildford Mall.  The line was merging
into available breaks in traffic so that egress onto 152nd Avenue could be made
safely.

[9]            
The plaintiff did not see the collision develop.  She only felt the
impact of the defendant’s car.  She described the collision as a “hard hit” and
that her chest hit the steering wheel.  The plaintiff testified her car was
pushed forward but could not say how far forward.  The coffee in a cup-holder
spilled.  The plaintiff’s friend, who was in the front passenger seat of the
van at the time of the accident, did not testify.

[10]        
In examination-in-chief the plaintiff testified that there was damage to
the bumper of the van.  In cross-examination she was unable to describe the
damage.

[11]        
The plaintiff testified after the collision she left her van and went to
speak with the defendant to exchange driver information.  She had difficulties
obtaining driver information from the defendant.  She then called 911.  She
laid down in her van.  After an ambulance arrived she asked to be taken to the
hospital because she was having pain.  The ambulance report records the levels
of the “plaintiff’s chief complaints” as follows:

[12]        
The plaintiff testified that at the hospital x-rays were taken of her
back and neck, medication was prescribed (including Naproxen and Flexeril), and
she was advised to take some days off work.  She was then picked up by her
father.

[13]        
The defendant is an older gentleman.  He was an RAF pilot in World
War II.  Age has treated him well.  He enjoys a clarity of expression and
a quick mind.

[14]        
As the defendant described the collision, he was behind the plaintiff as
her van edged towards 152nd Avenue.  He did not see the van stop and his
vehicle rolled into it.  The defendant estimated the speed of his car as “dribbling
along” at approximately 2-3 kph, a “drifting speed”.  He acknowledged there was
a “sudden bang” when the plaintiff’s van was bumped, not “hit”.  He felt little
impact.  A Kleenex box resting on the rear seat of the defendant’s car remained
in place, and did not fall to the floor upon impact.

[15]        
The defendant suffered no injuries as a result of the accident. He initially
thought there was no need to exchange information with the plaintiff because he
could see no damage other than possible scuff marks on the van’s bumper.

IV.           
Plaintiff’s History

[16]        
The plaintiff is a 24-year old woman who came to Canada from Iraq with
her family in 2005.  Since immigrating, she has learned English.  She attended
high school but, two courses short, did not graduate.  She worked part-time
during and after high school in various retail jobs.  As well, she helped in
her parents’ restaurant.

[17]        
In January 2011, she started a hairdressing course from which she
graduated in September 2011.

[18]        
In October 2011, she started to work part-time at a hair salon, Great
Clips, where she hoped to become a full-time employee.  She worked
approximately 11 hours per week before the accident.

[19]        
Prior to the accident, she was socially active and enjoyed various
physical activities, including swimming, walking, and working out at a gym.

[20]        
The plaintiff testified that, after the collision, she experienced pain
in her neck and her upper and lower back, and had headaches and sleeplessness. 
In February 2012, she tried to return to work as a hairdresser but the need to
stand and use her upper body as she cut a customer’s hair was too painful.

[21]        
 For several months in the summer and fall of 2012, the plaintiff worked
as a receptionist at Zarka Salon, a hair salon. In 2013, she worked for some
time at her parents’ restaurant (which included making sandwiches).

[22]        
In May 2014, she was married, enjoying a large wedding with
approximately 650 guests.  (There was a promise to engage in September 2012 and
an engagement party later in 2012.)  She stayed until the party ended around
2:30 of the morning, following the wedding ceremony.

[23]        
The plaintiff testified that her pain and discomfort has continued, with
ebbs and flows, to the time of trial.  She says she cannot do many of the social
and physical activities she formerly enjoyed and cannot perform heavier
housekeeping duties.  In cross-examination, she testified that she still
attends social events, goes to pubs, restaurants and movies with her friends
and husband.  She testified that she cannot walk for longer than an hour.

V.             
Medical-Legal Opinion

[24]        
Dr. Parikh had been the family physician for other members of the
plaintiff’s family and, shortly after the accident, he became her family
physician.

[25]        
Dr. Parikh’s testimony, which was tendered prior to the plaintiff’s
testimony, was given by video deposition.  Without objection, he was qualified
to provide expert testimony as to the general practice of medicine and family
medicine, and to the management and care of motor vehicle injury victims.

[26]        
Dr. Parikh prepared a medical-legal opinion dated January 6,
2014, and a May 3, 2014 update.  Dr. Parikh opined that the plaintiff
was totally disabled for almost a full year after the accident, until November 1,
2012, and has been partially disabled since November 1, 2012.

[27]        
In his May 3, 2014 update, Dr. Parikh stated:

Ms. Andraws continues to experience pain especially in
the right upper back and lower back.  She has attempted to return to her
hairdressing job but had to quit due to the exacerbation of pain.  As a result
she is disabled from being a hairdresser and furthermore would be disabled from
any job requiring continued use of her upper and lower back muscles.

…  I would deem the period
of total disability to be one year from the accident date, specifically from November 22,
2011 to November 1, 2012.

[28]        
Dr. Parikh testified with respect to the plaintiff’s credibility:

Q         And
when you test for range of motion, whether it be the neck or the lumbar area,
do you accept that as an objective sign?

A          Yes, I do.

Q         So it’s
not – – you don’t accept that a person could be limiting their range of motion?

A          Well,
it is possible. I mean someone could fake their – – their injuries, and we
always have to take that into account.

 So
usually we do a full clinical assessment, which includes the range of motion
and the subjective. But I look at range of motion, if a person’s credible, as
an objective sign.

Q         And you
— you felt that she was credible?

A          Yes, I
did believe she was credible ‘cause the fact that she actually had to be taken
to the hospital by ambulance I believe she did have significant injury at that
time.

Q         Did you
see the ambulance records?

A          No, I didn’t.

VI.           
Plaintiff’s reports to her kinesiologist

[29]        
In January 2014, the plaintiff, on the recommendation of her family physician,
Dr. Parikh, saw a kinesiologist, Mr. Teh. Mr. Teh gave the
plaintiff self-reporting questionnaires to complete.  At that time,
Mr. Teh measured poor range of motion in the plaintiff’s neck.
(Dr. Parikh testified that, based on his May 28, 2012 clinical
assessment, the plaintiff had full range of neck motion as of that date.)

[30]        
At trial, Mr. Teh testified that, based on the questionnaires
completed by the plaintiff, the then-current disability in the plaintiff’s
upper body and neck was “severe”.  Mr. Teh testified that the next level
in severity would be “crippled”, although he stated that relatively few persons
would be described as such.

[31]        
The plaintiff also referred to leg pain in the self-reporting
questionnaire.  As defence counsel noted in argument, the plaintiff made no
complaints to Dr. Parikh of leg pain at any time.

VII.          
plaintiff’s Burden

[32]        
The plaintiff must prove her injuries on a balance of probabilities: F.H.
v. McDougall, 2008 SCC 53.  In F.H., the Supreme Court of Canada
describes what constitutes the civil standard of a balance of probabilities:

[40]      Like the House of Lords, I think it is time to
say, once and for all in Canada, that there is only one civil standard of proof
at common law and that is proof on a balance of probabilities.  Of course,
context is all important and a judge should not be unmindful, where
appropriate, of inherent probabilities or improbabilities or the seriousness of
the allegations or consequences.  However, these considerations do not change
the standard of proof. I am of the respectful opinion that the
alternatives I have listed above should be rejected for the reasons that
follow.

[41]      Since Hanes v. Wawanesa Mutual Insurance Co.,
[1963] S.C.R. 154, at pp. 158-64, it has been clear that the criminal standard
is not to be applied to civil cases in Canada.  The criminal standard of proof
beyond a reasonable doubt is linked to the presumption of innocence in criminal
trials.  The burden of proof always remains with the prosecution.  As explained
by Cory J. in R. v. Lifchus, [1997] 3 S.C.R. 320, at
para. 27:

First, it must be made clear to the jury that the standard
of proof beyond a reasonable doubt is vitally important since it is
inextricably linked to that basic premise which is fundamental to all criminal
trials: the presumption of innocence. The two concepts are forever as closely
linked as Romeo with Juliet or Oberon with Titania and they must be presented
together as a unit. If the presumption of innocence is the golden thread of
criminal justice, then proof beyond a reasonable doubt is the silver and these
two threads are forever intertwined in the fabric of criminal law. Jurors must
be reminded that the burden of proving beyond a reasonable doubt that the
accused committed the crime rests with the prosecution throughout the trial and
never shifts to the accused.

[42]      By contrast, in civil cases, there is no
presumption of innocence. As explained by J. Sopinka, S. N. Lederman and
A. W. Bryant, The Law of Evidence (2nd ed. 1999), at p. 154:

Since society is indifferent to whether the plaintiff or the
defendant wins a particular civil suit, it is unnecessary to protect against an
erroneous result by requiring a standard of proof higher than a balance of
probabilities.

It is true that there may be serious consequences to a
finding of liability in a civil case that continue past the end of the case.
However, the civil case does not involve the government’s power to penalize or
take away the liberty of the individual.

[43]      An intermediate standard of proof presents
practical problems. As expressed by L. Rothstein et al., at p. 466:

As well, suggesting that the standard of proof is “higher”
than the “mere balance of probabilities” leads one inevitably to inquire what
percentage of probability must be met? This is unhelpful because while the
concept of “51 percent probability”, or “more likely than not” can be
understood by decision-makers, the concept of 60 percent or 70 percent
probability cannot.

[44]      Put another way, it would seem incongruous for a
judge to conclude that it was more likely than not that an event occurred, but
not sufficiently likely to some unspecified standard and therefore that it did
not occur. As Lord Hoffman explained in In re B at para. 2:

If a legal rule requires a fact to be proved (a “fact in
issue”), a judge or jury must decide whether or not it happened. There is no
room for a finding that it might have happened. The law operates a binary
system in which the only values are zero and one. The fact either happened or
it did not. If the tribunal is left in doubt, the doubt is resolved by a rule
that one party or the other carries the burden of proof. If the party who bears
the burden of proof fails to discharge it, a value of zero is returned and the
fact is treated as not having happened. If he does discharge it, a value of one
is returned and the fact is treated as having happened.

In my view, the only practical
way in which to reach a factual conclusion in a civil case is to decide whether
it is more likely than not that the event occurred.

[33]        
As in this case, a plaintiff is often claiming a large sum as damages
for personal injuries arising from a motor vehicle accident.  In considering
the plaintiff’s burden, the Court does not consider whether the defendant is
wealthy or poor, or is covered by insurance.  Any such considerations are not
relevant: see Hamstra (Guardian ad litem of) v. British Columbia Rugby Union,
[1997] 1 S.C.R. 1092 at para. 24.

VIII.        
Soft Tissue Injuries

[34]        
With respect to soft tissue injuries, in Butler v. Blaylock Estate,
[1981] B.C.J. No. 31 (S.C.), Chief Justice McEachern observed:

[18]      I am not stating any new principles 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 period.

[19]      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.

[35]        
A plaintiff does not need to show objective evidence of continuing
injury in order to recover damages: Butler v. Blaylock Estate, [1983]
B.C.J. No. 1490 (C.A.).

IX.           
The plaintiff’s reliability

[36]        
Justice Thackray (as he then was), in commenting on injuries resulting
from a minor collision in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236
(S.C.), stated:

[4] 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.

[5] Significant injuries can be
caused by the most casual of slips and falls.  Conversely, accidents causing
extensive property damage may leave those involved unscathed.  The presence and
extent of injuries are to be determined on the basis of evidence given in
court.  Objectivity is thus preserved and the public does not have to concern
itself with extraneous philosophies that some would impose on the judicial
process.

[37]        
Our Court of Appeal in Cahoon v. Brideaux, 2010 BCCA 228, refers
to Gordon (at para. 82) and makes it clear that the severity of an
automobile collision is relevant.  The Court states:

[84] The evidence of automobile damage was relevant to the
question whether Mrs. Cahoon suffered the injuries she claimed as a result of
the collision. In R. v. Watson (1996),
108 C.C.C. (3d) 310 at 323-24 (Ont. C.A.), Doherty J.A. explained
relevance as follows:

 …
Relevance … requires a determination of whether as a matter of human
experience and logic the existence of "Fact A" makes the existence or
non-existence of "Fact B" more probable than it would be without the
existence of "Fact A." If it does then "Fact A" is relevant
to "Fact B". As long as "Fact B" is itself a material fact
in issue or is relevant to a material fact in issue in the litigation then
"Fact A" is relevant and prima facie admissible.

[85] Human experience and logic,
qualities for which juries are particularly valued, are the essence of common
sense. They suggest there is a relationship between the force of an impact
between two vehicles and the resulting damage to the vehicles. Thus, evidence
of minimal damage makes it more likely the force of the impact was minimal
(Fact A). Human experience and logic also suggest there is a relationship
between force exerted on the human body and injury caused by the force. Thus,
evidence of minimal force applied to the human body tends to make it more probable
that the resulting injury would not be serious (Fact B). It follows that the
evidence of vehicle damage was relevant on this issue and the trial judge did
not err in instructing the jury that they could use it as circumstantial
evidence.

[38]        
The burden remains on the plaintiff to prove to the Court the nature and
extent of his or her injuries and that these injuries were caused by the
defendant’s negligence, whether the collision is minor or major.

[39]        
The defendant’s description of the collision was consistent with the
cosmetic damage to each vehicle and the overall traffic configuration at the
time of the collision.  The Court finds that the collision involved only minor
forces.  The plaintiff has overstated the severity of the collision.

[40]        
A collision of minimal forces makes it more probable that there would
not be serious injury.  As noted above, Dr. Parikh’s opinion was that the
plaintiff was totally disabled from any type of employment requiring the
continued use her upper and lower back muscles for almost a year.  In his
deposition, he testified that the plaintiff would be “capable of some sort of
sedentary-type job within six months of her injury, after she’d completed as
session — extended session of physiotherapy”.  As noted above, based on questionnaires
completed by the plaintiff, as of January of this year, Mr. Teh, the
kinesiologist, described the then-current disability in the plaintiff’s upper
body and neck as “severe”.

[41]        
The Court finds that the plaintiff has not been sufficiently reliable to
prove her claim on a balance of probabilities.  As described above, the Court
finds that the plaintiff overstated the severity of the collision.  Without foundational
reliability, the Court is not satisfied on a balance of probabilities that her
complaints reflect any injury arising from the collision.  As the Supreme Court
of Canada in F.H. also stated (at para. 46): “evidence must always be
sufficiently clear, convincing and cogent to satisfy the balance of
probabilities test”.

[42]        
Without sufficient reliable evidence, the Court finds that no injuries
were occasioned by the accident.  The plaintiff has not discharged her burden
of proof.

X.             
Conclusion

[43]        
The Court dismisses the plaintiff’s claim with costs to the defendant.

_____________ “Funt
J.”_____________
Funt J.