IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151008

Docket: M148530

Registry:
New Westminster

Between:

Basma Zhibawi

Plaintiff

And

Reginald Anslow

Defendant

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]           
The plaintiff, Basma Zhibawi, brings this claim to recover damages she
says resulted from a motor vehicle accident.

[2]           
The collision took place on November 22, 2011, in Surrey, B.C. At the
time, Ms. Zhibawi was a passenger in a Dodge Caravan driven by her friend Ms. Andraws,
they were in the process of leaving the Guilford Mall parking area, entering
onto 152 Street. The Andraws vehicle was stopped at a stop sign, waiting for a
break in the traffic. The defendant, Mr. Anslow, was immediately behind
them, driving his 2000 Oldsmobile Intrigue. He too was intending to enter onto 152
Street; as he moved forward, he did not notice that the car ahead had stopped. The
front of his vehicle came into contact with the rear of the Andraws vehicle. By
all accounts, the speed at contact was minimal, probably in the order of
approximately 3 km/h.

[3]           
The plaintiff says that the impact caused injury to her. As I understand
the evidence, she was at the time wearing a seatbelt and was facing forward.
She did not know the impact was coming and did not brace for it. She described
moving forward and then back; she said her head came in contact with the
headrest.

[4]           
Ms. Zhibawi says that the consequences for her have been
significant. She alleges that she suffered injury to her neck and back. She
claims as well to have suffered headache for a considerable time following the
accident. Even as at the date of trial, more than three years after the
accident, she says that she feels the lingering effects of the collision.

[5]           
The plaintiff seeks damages under four separate heads:

1.    Non-Pecuniary Damages

2.    Past Wage Loss

3.    Cost of Future
Care

4.    Special Damages

[6]           
The defendant does not dispute that there was a collision (he says a very
minor collision) and accepts that the fault for the accident lies with him.

[7]           
However, it is the submission of the defendant that the contact between
the two vehicles was so insignificant and the evidence called by the plaintiff
in support of her claim is of such dubious effect that the claim should be
dismissed. The defendant contends the plaintiff has failed to prove that his
negligence resulted in injury of any consequence.

[8]           
In addition to her own testimony, the plaintiff called her sister and a
former employer. She also relies upon two medical reports authored by Dr. David
Zayonc. Those reports were tendered, and Dr. Zayonc was called and
cross-examined at trial.

[9]           
Mr. Anslow testified, as did an ICBC damage estimator who had
examined the Andraws vehicle following the accident.

Discussion

[10]       
Prior to dealing with Ms. Zhibawi’s claims and the evidence, there
are certain preliminary comments to make.

[11]       
I commence with the observation that the accident at bar was, by all
accounts, a very minor collision. The damage to each of the vehicles involved
was barely discernible. The vehicle in which the plaintiff was riding was
examined at the claim centre. I conclude that there was no damage of any moment
detected. A settlement was made with the owner whereby she was paid $100 in
respect of that damage. Mr. Anslow said that he did not believe there was
any damage to his vehicle.

[12]       
Before embarking upon further analysis of the evidence, I wish to make
reference to two accepted concepts, both of which have application to the
present matter.

[13]       
The first is that there is no generally accepted proposition that where
a minor collision has occurred with low velocity and slight damage to the
automobiles, any resulting injuries must necessarily be minor as well. The
matter was the subject of an observation by Mr. Justice Thackray in Gordon
v. Palmer (1993), 78 B.C.L.R. (2d) 236 (SC) where he said:

[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 slip and falls. Conversely, accident
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 level.

[14]       
In my view, the magnitude of the collision is but one factor that a
court will take into account. It is not determinative of type or degree of
injury but it will be considered in the context of the totality of the
evidence.

[15]       
The second proposition was stated by McEachern C.J., as he was then, in Price
v Kostryba (1982), 70 BCLR 397 (SC):

[4]        In Butler v. Blaylock et al. decided
October 7^th, 1980, (Vancouver Registry B781505), I refer 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.

[16]       
In the matter at bar, I note that the plaintiff has elected to call no
evidence from the medical professionals who saw her after the accident and who
treated her complaints. However, the clinical records from those attendances,
or some of them, were produced at trial. The plaintiff was cross-examined about
those interactions.

[17]       
While I have not elected to draw an inference adverse to the plaintiff
because of her failure to call that evidence, I must observe that the effect of
her decision is to leave the Court with less evidence upon which to assess her
claim.

[18]       
In terms of medical evidence, the plaintiff relies upon two reports
prepared by a doctor to whom her legal counsel referred her some considerable
time after the accident. That doctor, Dr. Zayonc, examined the plaintiff
on two occasions—June 26, 2013, and April 30, 2014. He prepared reports
relating to each of those examinations, dated July 6, 2013, and May 5, 2014,
respectively. As noted, Dr. Zayonc was cross-examined at trial with
respect to the opinions expressed in those reports.

[19]       
In his submissions, counsel for the defendant referred this Court to the
decision in Andraws v. Anslow, 2014 BCSC 2080. That decision relates to
the trial of the action brought by Ms. Andraws, the person who was driving
the car in which Ms. Zhibawi was riding when the accident occurred. In
effect, it is the same accident. In that case, the presiding justice dismissed
the action, concluding that the plaintiff had not proven her claim.

[20]       
Counsel before me submitted that Ms. Zhibawi is in the same
position and has not discharged the onus of proving her case. He suggested that
my decision in the present action should be informed by the outcome of the Andraws
trial.

[21]       
I indicated my view of that proposition at the time and reiterate: I do
not accept that the result of that action should dictate the outcome of Ms. Zhibawi’s
claim. Each claim proceeded in its own trial; each trial featured its own evidence.
I have attached no significance to the outcome in the other matter and find
that the present claim must be adjudicated on the basis of the evidence before
me.

[22]       
I turn now to deal with the evidence of the plaintiff. She described the
accident, stating that she felt a pain in her back almost immediately and felt
faint. She was transported to hospital by an ambulance. An x-ray examination of
her neck and back was conducted there; nothing of consequence was detected. She
testified that the following day, she had pain in her neck, back, and shoulders;
two days later she attended at a walk-in clinic where a doctor examined her and
recommended that she take Advil for the discomfort. She subsequently saw
another doctor on November 25, 2011. That doctor observed stiffness and limited
range of motion, recommending that she take analgesic medication as required
and physiotherapy.

[23]       
As best I can discern, in the months following, there were two further
visits to the doctor with respect to complaints of discomfort from the
accident.

[24]       
At trial, the plaintiff described experiencing significant pain to her
neck and low back and headaches “almost every day” for the first six months
following the accident.

[25]       
She testified that she was able to return to work within two or three
weeks of the accident. For reasons that are not relevant here, her previous employment
in a restaurant was not available to her, and so she found other work in a
similar type of restaurant.

[26]       
Generally, the plaintiff described that the discomfort she was
experiencing made her less social; she said she was less able to do housework
and she stopped running. Previously, she had been a recreational runner.

[27]       
Ms. Zhibawi testified that between May 2012 and the summer of 2013
she had some problems with her neck and back. She saw Dr. Khan and then Dr. Akbar;
she was prescribed Tylenol and Advil. As well, massage was recommended,
although she did not take any massage treatment. Her evidence is that she “got
better in the first six months” but sometimes had pain. She testified that
between the summer of 2013 and trial she was feeling much better and had
returned to her normal social activities. She said that she experienced back
pain once every week or two but that was relieved by chiropractic treatment. Her
testimony at trial as I have noted is “I have been largely okay for the last
year.” She has also done some of the exercises she learned at physiotherapy and
practices yoga—things which I understand help her avoid discomfort.

[28]       
With respect to the plaintiff’s headaches, the evidence establishes
quite clearly that she had a pre-existing neurological condition which resulted
in faintness, dizziness, and headaches. That condition had been present since
approximately 2007. She has seen a number of specialists and undergone quite
careful testing for it.

[29]       
At the time of trial, the plaintiff was working at a travel agency. She
testified that she experiences occasional neck and back pain and deals with
that by “moving around.” In her words, “If I do not work too hard, the effects
of the accident do not matter.”

[30]       
Ms. Zhibawi’s sister testified. The effect of her evidence was
that, prior to the accident, she and the plaintiff had gone on runs together.
Her observation was that as a result of the accident, the plaintiff was no
longer able to do that. She also observed that when the plaintiff worked around
the house in 2012, she seemed to have to rest more. She observed that she is
now “way better,” although there is the occasional complaint.

[31]       
A witness who was a former employer of the plaintiff testified. The
effect of her evidence is that, after the accident, she observed that the
plaintiff appeared to have difficulty doing some of the heavier work in the
restaurant operation where they worked.

[32]       
As noted, there are two medical reports in evidence, prepared by Dr. Zayonc.

[33]       
In his qualification testimony, Dr. Zayonc stated that he graduated
from medical school in 2009 and completed his family practice residency in 2011.
At that time he obtained his licence and commenced a general practice in White Rock,
B.C. Prior to becoming a medical doctor, he was a doctor of chiropractic for 20
years.

[34]       
In cross-examination, the doctor was asked how many “independent medical
examinations" he had performed for motor vehicle accident plaintiffs. He
stated that it was somewhere between 40 and 50. He also testified that 80% of
those have been prepared for clients of the law firm which acts for Ms. Zhibawi.

[35]       
In my assessment of the evidence and opinion of Dr. Zayonc, I note
that he has never been the plaintiff’s treating doctor. His first examination
of the plaintiff was 18 months after the collision, and the second examination
was conducted approximately 30 months post-accident.

[36]       
There are certain parts of his first report that I wish to note:

1.    The doctor’s
diagnosis is stated as “Ms. Zhibawi is mostly suffering from headaches
that are migrainous in nature. The headaches have a cervicogenic component.
Further, she has received sprain/strain injuries of the neck and back.”

2.    The plaintiff
told Dr. Zayonc that her back symptoms have improved approximately 70%
since initial onset.

3.    Ms. Zhibawi
reported frequent headaches; they occurred daily and are not changing in
frequency over time.

4.    The doctor
opined that the plaintiff was totally disabled for two months following the
collision and that she has been partially disabled since ever since the
accident, as she has “had symptoms since the injury.”

5.   
As for recommendations, Dr. Zayonc stated, “She may need treatments
in the future to help reduce symptoms when and if her pain intensifies. She may
need to seek the service of a chiropractor, physiotherapist or massage
therapist on occasion, whichever profession provides the greatest relief. I
anticipate 5 – 10 treatments per year for the next few years would be a
reasonable estimate.”

[37]       
With reference to the second report, the following components are noted:

1.   
As to the plaintiff’s diagnosis, in addition to what had been contained
in the first report, he stated that “she has symptoms consistent with facet
syndrome. Her reported symptoms and clinical notes indicate that she suffered a
concussion from this accident.”

2.   
The doctor again stated his opinion that “it is unlikely that a complete
resolution of her symptoms will occur."

3.   
He noted that the plaintiff reported that her back symptoms have
improved approximately 80% since the initial accident.

4.   
He also stood by his a recommendation that provision should be made for
10 – 15 treatments per year of chiropractic treatment for the “next few years.”

[38]       
I have difficulty accepting that the opinion of Dr. Zayonc is of
meaningful assistance to the plaintiff in proving her claim. The reasons for
that conclusion are as follows:

·      
I consider it significant that he had not seen the plaintiff
prior to his first examination, and that it was 18 months after the accident;
the second examination was some time after the first.

·      
I also note that he did not have access to all of the clinical
notes or records of the medical professionals she had seen. By my count, she
saw four different doctors at some time after the accident. Dr. Zayonc had
the records of only one of those. The plaintiff also had chiropractic treatment
in the months following the accident. Dr. Zayonc did not have those
records. With respect to the second opinion, the only additional record that he
had was the admission sheet from the hospital following the accident.

·      
He did not have access to the medical records that contained
substantial information about the investigations that had been done and
opinions that had been provided with reference to her pre-accident neurological
condition, and in which there was evidence of a history of pre-existing
migraine headaches.

·      
I consider it to be of substantial significance that the doctor
was plainly wrong in the opinion he expressed with respect to the plaintiff’s
total disability: that it was for a period of two months. The uncontradicted evidence
is that that she was fit to return to work within three weeks or less of the
accident.

·      
The conclusion with respect to concussion, made after the second
examination, is curious indeed. On cross-examination, he agreed that was a new
finding, stating, “I would not say conclusively that arises from the motor
vehicle accident.” He noted that dizziness is a symptom consistent with
concussion. Ultimately, he opined it would be unlikely that she would have
sustained a concussion from this motor vehicle accident. That is directly
contradictory of his opinion stated at page 7 of his report.

·       Generally,
I believe that his conclusions and opinions are quite substantially based upon
subjective criteria, namely the self-report of the plaintiff and the
assumptions provided by the law firm that sent the file to him.

[39]       
To conclude, I find real difficulty with the opinions of Dr. Zayonc
as tendered in his reports. The result is that I assign little weight to them. In
my respectful view, they do not comply with the duty and certification required
by R. 11-2 of the Supreme Court Civil Rules.

[40]       
With all that said, I have reached certain findings concerning the
injuries that were sustained by the plaintiff and the effect that they have had
upon her. I conclude that she sustained a mild to moderate soft tissue injury.
That resulted in some neck and back discomfort. Within approximately two weeks,
she was able to return to work.

[41]       
The injuries had a limiting effect upon her activities for a time,
including her running and housework. I find that, within a few months, their
impact on her ability to work at her job was manageable and modest.

[42]       
There were complaints of headache following the accident, but it is in
my view quite relevant that Ms. Zhibawi had been experiencing significant
headaches as part of a long-established neurological condition that also included
fainting and light-headedness. While the plaintiff sought to draw a distinction
between the pre-accident headaches and those she had after, I find that the
headaches that are attributable to the defendant’s negligence are modest.

[43]       
I conclude the bulk of the plaintiffs discomfort resulting from the
motor vehicle accident was substantially resolved within six to nine months.

[44]       
I do not accept that the injuries she sustained have continued in any
meaningful way to the time of trial, and I find no basis to conclude that she
will suffer any effects into the future.

Non-Pecuniary Damages

[45]       
In terms of quantum of damages, the plaintiff contends that an
appropriate award under this head would be in the range of $25,000 to $35,000.
In support of that, references are made to three recent decisions:

Mirsaeidi v.
Coleman, 2014 BCSC 415 – $25,000

Nair v.
Cindric, 2013 BCSC 2128 – $30,000

Christoffersen
v. Howarth, 2013 BCSC 144 – $35,000

[46]       
As noted, the position taken by the defendant is clear. He says that no
claim has been made out, and the action should be dismissed.

[47]       
In my view, the range of damages sought by the plaintiff is markedly
higher than the circumstances warrant.

[48]       
I have reference to the cases set out below. In my view, they more
properly reflect the entitlement to damages, recognizing of course that the
exercise of determining damages in one case by reference to what other judges
have done in other cases with their own facts is of limited value. Ultimately, the
award in this case must be based upon my assessment of the evidence, with the
objective of determining an award that is fair in the circumstances—fair to
both the plaintiff and the defendant.

[49]       
The cases which I consider to be of value to the analysis at hand are
these:

Dolha v. Heft, 2011 BCSC 738 – $10,000

Bae v. Vasquez, 2013 BCSC 542 – $12,000

Bains v. Park, 2014 BCSC 1818 – $13,500

Kapelus v. Hu, 2013 BCCA 86 – $15,000

[50]       
I conclude that a fit and appropriate award of damages to compensate the
plaintiff for her pain, suffering, and loss of enjoyment of life is $14,000.

Past Wage Loss

[51]       
The plaintiff accepts that the most she will be able to recover is a sum
reflective of two weeks of missed work.

[52]       
The records with respect to the plaintiff’s employment and her
remuneration are not complete or comprehensive. In the circumstances, I am
satisfied that the figure proposed by the plaintiff, that is, $500 for the two
weeks, is reasonable, and that will be awarded.

Cost of Future Care

[53]       
The plaintiff relies upon the report of Dr. Zayonc, wherein he
offers the opinion that 10 to 15 chiropractic treatments per year for the next
few years would be a benefit to Ms. Zhibawi. He estimates the cost of
those treatments to be between $50 and $75. As well, the plaintiff stated in
her testimony that she would like to pursue future chiropractic treatments
should her symptoms flare up again. In the circumstances, the plaintiff claims a
sum between $2,500 and $3,500 for the cost of future care.

[54]       
I begin with the principle that, in order for damages to be awarded
under this head, the court must be satisfied there is a medical necessity for
the services claimed and that there is a real and substantial possibility the
expense will be incurred.

[55]       
In this case, I do not find that level of certainty in the recommendation
made by Dr. Zayonc. The opinion is more in the nature of “It could happen,
and these services might be nice to have.” To my mind, that does not meet the
standard of proof required. Additionally, as my reasons make clear, I am not
satisfied that the plaintiff has ongoing symptoms arising from the accident.
Accordingly, this claim is dismissed.

Special Damages

[56]       
Ms. Zhibawi claims special damages in the amount of $575. Those
arise from sums paid for chiropractic treatments ($405) and physiotherapy costs
($170).

[57]       
Those special damages are proven and there will be an award in the
amount of $575.

Summary

[58]       
The plaintiff will recover the damages as follows:

·      
Non-pecuniary Damages:    $14,000.00

·      
Past Wage Loss                  $     500.00

·      
Special Damages:               $     575.00

·       Total:
$15,075.00

Costs

[59]       
I have not heard submissions with respect to costs. Ordinarily of
course, costs follow the event, and that should dictate the outcome unless
there are considerations of which I am unaware. It may also be that the
ultimate determination of the costs will be informed by the quantum of the
damages recovered, noting particularly that the plaintiff’s recovery is a sum
which appears to be caught by R. 14-1(10).

“J.
Williams, J.”