2008 BCSC 636 Alizada v. Gill

Before: The Honourable Mr. Justice Masuhara

Reasons for Judgment

Counsel for the Plaintiff:	D.O. Shane S. Chrishna (Articled Student)
Counsel for the Defendant:	R.B. Pearce
Date and Place of Trial:	May 8-9, 2008
	Vancouver, B.C.

Introduction

[1] This personal injury action is brought pursuant to Rule 66 “Fast Track Litigation” and arises from a motor vehicle accident which occurred on February 13, 2006 near the intersection of 88th Avenue and 120th Street, Surrey, B.C. at around 6:45 p.m.

[2] The plaintiff was rear-ended and claims for soft tissue injuries arising from the collision. Liability is admitted by the defendant. The determination sought relates to an assessment of non-pecuniary damages and special damages of $324 related to massage therapy and physiotherapy sessions.

[3] The witnesses called in the plaintiff’s case were:

· Mr. Alizada;

· Dr. Chong, Mr. Alizada’s family physician, who provided two reports; and

· Mr. Chan, the physiotherapist who treated Mr. Alizada.

[4] The witnesses called in the defendant’s case were:

· Mr. Gill, the defendant; and

· Mr. Blackmore, an estimator with ICBC who spoke to the estimates of repair to the two vehicles.

[5] Under the Notice to Admit the plaintiff admits that the damage to his vehicle was cosmetic damage to the paint on the plastic rear bumper cover and that the total cost of repairs was $710.54.

[6] Under the Notice to Admit the plaintiff admits that the damage to the defendant’s Chevy Astro van was cosmetic damage to the front bumper and a dented rebar and that the total cost of repairs was $805.23.

Background

[7] Mr. Alizada is 34 years old. He was born in Kabul, Afghanistan. He escaped from that country at the age of 16 years to India. He lived there for three years and then moved to Canada in 1993. He was in good health prior to the accident. At the time of the accident he was the owner of a Japan Camera franchise located at Richmond Centre. He closed the business in January 2008 and moved to Calgary. He has recently obtained work as a delivery person with UPS.

[8] At the time of the accident he was driving a 1996 Nissan 300SX standard shift and had come to a stop as the traffic light ahead at the intersection was red. There were several vehicles ahead of him. He had his seat belt on. He stated that he had placed his car in neutral and had applied the brake. He stated he did this to preserve his clutch. While stopped he was rear ended by the defendant driving a 1998 Astro van rear-ended. The plaintiff stated he believed that his vehicle was pushed forward about 3 to 5 metres by the impact. He was not able to tell how fast the vehicle behind him was moving. He could only say that he saw the van in his rear view mirror as it approached his vehicle. He did not believe that his body struck any part of the interior of his vehicle.

[9] He stated immediately following the accident he felt pain to his lower right back, right neck and right shoulder.

[10] He attended a medical clinic the next day and was put on two medications: apo-naproxyn and Novo-cyclobenzaprine.

[11] He also attended at Dr. Chong’s office for treatment a few days later. She examined Mr. Alizada and recommended physiotherapy. He attended her office on February 17, 2006, February 21, 2006, February 21, 2006, July 14, 2006, September 29, 2006, and January 23, 2007 for complaints relating to areas injured in the accident. Her reports state her impressions of Mr. Alizada’s injuries as right paracervical and bilateral paralumbar muscle strain/spasm.

[12] At the February 17 appointment, Dr. Chong ordered x-rays of the plaintiff’s cervical and lumbar spine. The results indicated his condition was normal.

[13] At the February 21 appointment, Dr. Chong referred the plaintiff to massage therapy and recommended swimming for exercise. Mr. Alizada started these two activities. On April 21, 2006, he requested and was given a referral for physiotherapy.

[14] He attended 23 massage and physiotherapy sessions from March 24, 2006 to August 24, 2006 on a regular basis. He had one further session some 15 months later on October 10, 2007. Over the course of treatment, he was given various treatments to his neck, shoulder and back. They included: ultrasound, hot pads, electrical stimulations, massage therapy, and stretching exercises. He was also given instruction on exercises to perform which he did in the gym at the clinic. He was also provided instruction on exercises he should perform at home including the recommendation to buy a $10 ball to do pilates at home.

[15] He testified that pre-accident he worked an average of 8 to 11 hours per day. As a result of the accident he testified that for a period of time he worked reduced hours. He stated that he could go in to work for only one hour a day initially. His brother who was an employee of his company covered his duties. He stated this lasted for about a month. He stated that he gradually was able to increase his hours at work as he improved. He stated that he got back to fulltime hours after a few months following the accident. At the start of the trial I was advised that though his pleadings sought compensation for wage loss, the plaintiff was not pursuing the claim.

[16] The defendant, Mr. Gill, was not injured in the accident. He testified that he was behind the plaintiff waiting for the light ahead to turn green. He stated that the traffic in his lane was bumper to bumper. When it turned green he began to move forward, he did not notice that the plaintiff had not begun moving and collided with the rear of the plaintiff’s car. He said that he was moving very slow at the time of impact, about 5 miles per hour. Immediately following the collision he said he got out of his van and went to speak with Mr. Alizada. He asked the plaintiff if he was “OK” and that Mr. Alizada stated that he was. Mr. Alizada then asked if he could use Mr. Gill’s cell phone, which Mr. Gill provided. After some time, Mr. Gill went back to Mr. Alizada’s car to retrieve his phone, at which time Mr. Alizada told Mr. Gill that he had called 911 and fire and ambulance were coming. He stated that the gap between the cars after impact was 4 to 5 feet.

Discussion

[17] The submission of the plaintiff is that the injuries suffered in the accident to his shoulder and neck were minor and his lower back injury was moderate.

[18] The submission of the defence revolves around the lack of causation and failure to mitigate. The submission of the defendant is that the injuries were minor and had resolved by within 14 months of the accident.

[19] I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained. At the same time, I recognize that considerable care is to be taken in approaching an injury claim when there is little or no objective evidence of continuing injury and that the complaints of pain persist for long periods extending beyond the normal or usual recovery.

[20] My findings are that the collision was a low speed collision and that Mr. Alizada suffered minor soft tissue injuries to his neck, shoulder and back as a result of the accident. The defence concedes that there is no evidence to suggest that Mr. Alizada was not in good health prior to the accident. Nor is there any evidence that Mr. Alizada suffered these injuries after the accident. Mr. Alizada immediately after the collision used the cell phone carried by Mr. Gill to call 911 to report that he was injured. He attended a medical clinic the next day as he did not at the time have a family doctor and complained of pains to his neck, shoulder, and back. He was prescribed medication.

[21] A few days later he attended Dr. Chong’s office, who took him on as his family doctor, and reiterated his complaints. He visited her many times for his complaints. He also asked for and received massage and physiotherapy treatments. These all serve to establish that Mr. Alizada sustained the injuries he has complained of from the subject accident.

[22] I find that these injuries resolved within 14 months and his complaints in October 2007 and beyond were residual. This is evidenced by: his ending of regular physiotherapy treatments in August 2006 (he attended another session in October 2007 some 14 months later); his report to Dr. Chong in April 2006 he only had intermittent back pain; his final attendance to his physician regarding complaints of his accident injuries was in January 2007, at the session he reported to Dr. Chong that his lower back was sore in the morning sometimes but overall was feeling better; and that he reported to Mr. Chan he was better and had improved on several occasions starting in March 2006 and onward.

[23] I did not find Mr. Alizada’s explanation that he ceased attending physiotherapy because ICBC would no longer cover the costs of his therapy sessions persuasive. Mr. Alizada was earning a relatively fair salary of approximately $46,000 to $48,000 per year from his business. Although he testified he had to pay a mortgage and rent, there was no detail provided. I do not find his finances were a barrier to obtaining physiotherapy treatments. He was improving throughout the time and the interval between attendances was getting longer and his overall costs would have been reduced. I note that he had no attendances in July 2006. My view of the evidence is that his improvement in condition was more likely the reason for his cessation of attendances.

[24] I note as well, that while Mr. Alizada testified that he could only attend work for one hour at first and then gradually returned to full time after a few months after the accident; there is no objective evidence of his absence from work and little evidence of an impact on the balance of his activities; though he testified that he was not able to go out as much with his friends as he did prior to his accident. In addition, he did not require medication beyond his first prescription. He resumed attending his gym six times a week to run and weigh lift as he did prior to the accident one month after the accident. He testified that none of his activities were affected in the last six months of 2007. He also testified that he ceased attending his gym near the end of 2007.

[25] I find that his injuries resolved within 14 months of the accident. His complaints subsequent to this I characterize as residual. His recovery is consistent with the general range of recovery time for minor soft tissue injuries of the type sustained by the plaintiff.

[26] Given my finding, the issue of mitigation does not arise, as the issue of mitigation relates only to the period following the end of 2007.

Quantum

[27] In final argument, Mr. Shane submitted that the award should be in the order of $18,000, with $25,000 being at the high end of the range. The cases referred to in support are: Kahlon v. Prasad 2006 BCSC 2039; Cox v. Bounthavilay 2007 BCSC 1199; Montes v. Lee 2007 BCSC 1238; Toth v. Donaldson 2006 BCSC 1985; Dadson v. Gallo, 2007 BCSC 1504; Shen v. Buchanan 2006 BCSC 432; Dahliwal v Vail (November 6, 2007), Docket M063986 (Leask J.); and Lubick v. Mei 2008 BCSC 555. Mr. Shane submitted that this last case is the most similar to the case at bar.

[28] Mr. Pearce submitted that the range of award is in the order of $10,000 to $15,000. The cases referred to in support are: Coles v. Tung 2004 BCSC 1714; Liao v. Doe 2005 BCSC 431; Machala v. Roodenburg 2002 BCSC 397; and Pennykid v. Escribano 2004 BCSC 954. This last case is submitted to be very similar to the case at bar.

[29] The difference between the parties is not large. My assessment of non-pecuniary damages for Mr. Alizada is $16,000.

[30] With respect to special damages, the amount is not large. They are for massage and physiotherapy treatments that have not been challenged in any serious way. I find that the expenses are reasonable and accordingly, I find that the plaintiff is entitled to the claimed amount of $324.

Costs

[31] The question of costs was canvassed only generally at the end of the trial. It was apparent that further discussion between counsel was needed. If the parties wish this matter to be addressed by the court, the matter should be set down in the usual way.

“The Honourable Mr. Justice Masuhara”

Citation:	*Alizada v. Gill,*
	2008 BCSC 636