IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160219

Docket: 1342325

Registry:
Prince George

Between:

Julien
Adarius Bunnah, an infant, by his Litigation Guardian Rebecca Champagne

Plaintiff

And:

Tia Monique Bunnah

Defendant

Before: The Honourable Madam
Justice Watchuk

Reasons for Judgment

Introduction

[1]            
The plaintiff in this action arising from a motor vehicle accident is an
infant.  Julien Adarius Bunnah was five years old when the motor vehicle
accident occurred on February 18, 2012.

[2]            
At the time of the accident the defendant, Tia Monique Bunnah, who is
the mother of Julien, was driving the motor vehicle in which Julien was a
rear-seat passenger.  The guardian ad litem is Rebecca Champagne, the
sister of Ms. Bunnah and the aunt of Julien.

[3]            
At issue is the nature and extent of the plaintiff’s injuries, and the
assessment of non-pecuniary damages for pain and suffering.  Liability is
admitted.

Evidence

[4]            
Ms. Champagne was the only witness in the trial.  Some of the Examination
for Discovery of Ms. Bunnah was read in.  Ms. Champagne has spent
considerable time with Julien and knows him well.  Since August 2011, when
she moved to Quesnel, she has seen Julien daily and he often spends a night
with her and her family on the weekends.  I accept the evidence of Ms. Champagne.

[5]            
The circumstances of the accident are not in issue.  Ms. Bunnah was
driving south from the village of Mackenzie on Highway 39 which connects
to Highway 97 and Prince George.  She was driving too fast for the winter road
conditions which were slippery and snow-covered at the time.  At the speed of
70 to 80 kph, she could not control her vehicle which skidded, went down a
ten-foot embankment and flipped over before it came over to a rest on its roof.

[6]            
On the day of the accident, February 18, 2012, Ms. Bunnah and Ms. Champagne,
together with their families, had been in Mackenzie visiting their mother. 
After an overnight stay, they left Mackenzie about noon to drive south to their
home in Quesnel in a “convoy” formation with Ms. Bunnah driving a short
distance ahead of Ms. Champagne.  Approximately an hour later, Ms. Champagne
lost sight of Ms. Bunnah’s vehicle and then saw the tire marks going off
the highway.  Her husband stayed at the scene of the accident to check on Ms. Bunnah
and her two children, Julien and Jadabelle.  Ms. Champagne returned to
Mackenzie to summon assistance as there was no cellphone service on that
stretch of road.

[7]            
In the accident, Julien, who was in the right side of the back seat in a
booster seat, banged his head against the right side of the interior of the
vehicle.  Immediately after the accident, he was most concerned about his
mother and told her that it was okay because she was saying that she was sorry.
He was taken to the Mackenzie hospital where he was kept overnight for
observation.

[8]            
Julien’s immediate injuries were bleeding from the cut to this eye, bruising,
swelling, and a black eye.  A few days later there was increased swelling and
the bruising had become much darker.  At six weeks after the accident, the
bruises were still distinctly visible.  The bruising lasted perhaps three
months and a maximum of six months at which time there were no remaining signs
of the bruising.  Julien was described by his aunt as physically normal after
that time.  There was no scar from the injuries.

[9]            
In the days immediately after the accident and occasionally for a while
afterwards when his face bothered him, as it remained tender, Julian would be
upset and crying.  For about six months he was troubled and had some anxiety.

[10]        
The only long-term effect described by Ms. Champagne and by Ms. Bunnah
is that Julien becomes upset when his mother is late picking him up.  At such
times, about twice a year continuing through late 2015, Julien is upset and
stressed out due to his worry that his mother has been in a car accident if she
is late.  He cries at those times and Julien is not a child who cries often.

[11]        
With regard to pain, Ms. Champagne, who observed Julien in the hospital
and in the days after he was released from the hospital, understood that his
crying quite a bit in the hospital, on the way home and occasionally in the
first few months was a result of his pain.  She did not observe any other
behaviours that could be attributed to pain.  In cross-examination, Ms. Champagne
agreed that it was fair to say that there was no pain by March 9 (three
weeks later), unless the injured area was touched.

[12]        
A few days after the accident, Julien developed an infection in the
right eye which required some antibiotic eye drops.  His vision was blurry for
a few days.  The infection resolved within two weeks to a month.

[13]        
The most serious injury sustained in the accident was a displaced fracture
of the orbital floor on the right side of his face.  It also healed.  The
orbital floor is adjacent to the maxillary sinus and it is not known if there
was also a fracture of the maxillary sinus.  As surgery was not required, there
was no further investigation of the fracture and possible fracture which would
be adjacent to each other in this young boy’s facial area.

[14]        
The extensive swelling was described by a doctor on February 20,
2012 to be “severe swelling in the right facial region with severe bruising,
almost unable to open his right eye”.  The bruising lasted a maximum of six
months.  There has been no scarring.

[15]        
In summary, during the night in the hospital in Mackenzie, Julien had
pain and cried quite a bit as he did on the way home to Quesnel.  He had some
pain for a few weeks, and for few months he had occasional pain if his face was
touched.  He had some anxiety for about six months following the accident.  The
long-term effect has been upset and stress and crying from the worry when his
mother is late.  He worries that she has been in a car accident if she is
late.  This has occurred ongoingly, and a couple of times in 2015, most
recently in November 2015.

Non pecuniary damages

[16]        
It is the submission of the plaintiff that an award of between $35,000
and $40,000 is appropriate.  The defendant submits that an award of $20,000 for
non-pecuniary damages is the appropriate amount.

[17]        
The factors to be considered in assessing non pecuniary damages are set
out by the Court of Appeal in an inexhaustive list in the case of Stapley v.
Hejslet, 2006 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:  [citations
omitted].

[18]        
With regard to the nature of the injury, the most serious is the
fracture of the orbital floor on the right side of the face.  It was
accompanied by extensive bruising and swelling.  It resolved without surgery
within six months.

[19]        
With regard to loss or impairment of life, emotional suffering and
severity of duration of pain, due to Julien’s young age at the time, just
turned five years old, the evidence is obtained primarily from his aunt’s
observations in her frequent visits with him.  From the descriptions, Julien is
a stoic and resilient child and recovered quickly, also within six months.  The
only lingering effect is that he becomes fearful and upset when his mother is
late in arriving to pick him up because he is worried that there has been
another accident.  This fear has occurred repeatedly.  In 2015 it happened twice
when his mother was late, most recently in November 2015.

[20]        
The cases relied upon by the plaintiff are: Culver v. 624671 B.C.
Ltd. et al, 2006 BCSC 1241, and Latek v. Krol, 2013 BCSC 1884. 
Counsel advises that the nature of the injuries in these cases is more severe.

[21]        
The defendant relies upon four cases: Minet v. Kossler, 2008
YKCA 12; Nemoto v. Phagura, 2012 BCSC 1809; and Nemoto v.
Phagura, 2014 BCSC 262.

[22]        
I have considered the case law, which provides a guideline, and the
evidence.  The most important consideration is the impact of the injuries on
the individual plaintiff.  Julien, then five years old, sustained a blow to his
head in a motor vehicle accident on February 18, 2012.  Of his injuries, the
most serious was a facial fracture.  The sole ongoing symptom is fear when his
mother is late picking him up.

[23]        
In this case particular weight is given to the plaintiff’s age, his
stoicism in the circumstances of the accident, and the emotional suffering of
such a young plaintiff.  Non-pecuniary damages are assessed at $31,000.

[24]        
Unless there are matters of which I am unaware, the plaintiff is
entitled to costs at Scale B.  If counsel seek a different cost result,
written submissions can be made within 30 days of the date of these Reasons,
with reply submissions to follow within 15 days.

“The Honourable
Madam Justice Watchuk”