IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Mardones v. Toyota Credit Canada Inc.,
	2008 BCSC 835

Date: 20080626
Docket: M106221
Registry: New Westminster

Between:

Leonor Mardones

Plaintiff

And:

Toyota Credit Canada Inc.
and Zuheir Inaim

Defendants

Before: The Honourable Mr. Justice Savage

Reasons for Judgment

Counsel for the Plaintiff:	R. Albertson
Counsel for the Defendants:	T.E.G. Murphy
Date and Place of Trial:	June 19-20, 2008
	New Westminster, B.C.

Introduction

[1]                The plaintiff Leonor Mardones (“Mardones”) brings an action for damages for negligence arising out of a motor vehicle accident that occurred on June 16, 2005 near the intersection of King George Highway and 102 Avenue in Surrey, B.C. 

[2]                Mardones was stopped at or near the intersection at the time of the accident. 

[3]                The defendants Zuheir Inaim (“Inaim”) and Toyota Credit Canada Inc. are, respectively, the driver and owner of the other motor vehicle involved in the collision. 

[4]                The Mardones vehicle was a 1990 Mazda Protégé.  The Inaim vehicle was a 2004 Toyota Tundra 4 door crew cab. 

[5]                The case proceeded on the basis of an admission of liability by the defendants in the statement of defence that “the accident particularized in …the statement of claim…occurred as a result of the negligence of the Defendant, Zuheir Inaim….”.

[6]                At the conclusion of the defendant’s case they sought to amend their statement of defence to deny liability. 

[7]                The application of the defendants was refused, as, in my opinion it was too late in the day to make such amendment, the application coming as it did after the defendants had paid a small property damage claim, after discovery, after the examination of witnesses and after the plaintiff had closed its case. 

[8]                Throughout, however, the defendants have denied that Mardones suffered any injury and also alleged that Mardones could have prevented or reduced the severity of such injury. 

[9]                The issues are somewhat complicated by the fact that Mardones had been involved in two previous accidents. 

The Accident

[10]            Mardones testified that she had come to a complete stop, because of a red light.  The light changed and she proceeded ahead but had to stop again.  When she did her vehicle was struck from behind by the defendant’s vehicle. 

[11]            Mardones described the impact as a jolt that threw her forward although she was restrained by her seat belt. 

[12]            In a few moments she got out of her vehicle had a discussion with Inaim during which she asked for his information, although he had volunteered to pay for the small damage to her vehicle, which was a cracked light. 

[13]            Neither the police nor an ambulance was called.  Later that day Mardones attended with her physician, Dr. Birch. 

[14]            Inaim testified that he was driving southbound on King George Highway.  He came to a stop in front of the Mardones vehicle at a red light. 

[15]            The light changed and he started moving.  Inaim proceeded forward without applying the gas.  The vehicle ahead stopped.  Mardones got out of her vehicle and came back to his vehicle.  She said “You hit me”. 

[16]            The road where this occurred was almost flat.  He did not hear any impact.  He went with Mardones to look at the vehicles.  He asked “where did I hit you?”.  Mardones said you broke my taillight. 

[17]            He said he had no problem paying for the taillight.  Mardones said no she hurt her back.  He offered to call 911 but she declined.  They exchanged information.  Neither the police nor an ambulance was called. 

[18]            Inaim said he observed no damage to his vehicle.  He subsequently reported the claim. 

[19]            The parties entered as exhibits photographs of the vehicles.  The pictures show a cracked taillight on the Mazda Protégé.  There is no damage showing on the Toyota Tundra. 

[20]            The Claim File Report says “Insd rolled into TP – TP & INSD exchanged information”.  The Damage Estimate Report describes the “loss type” as “collision” and is marked “Paid”. 

[21]            The Toyota Tundra Inaim estimates at about 20 feet long.  He cannot see over the top of the cab.  He is 5 feet 6 inches tall.  He is unable to estimate its weight but it is a large vehicle compared to the Mazda Protégé. 

[22]            I do not accept Inaim’s description of the accident which is inconsistent with his offer to pay for the broken taillight and the description he gave which generated the Claim File Report. 

[23]            On balance I accept that Mardones was injured in the accident when her vehicle was struck by that of Inaim jolting her vehicle forward. 

The Previous Accidents and Injuries

[24]            Mardones is 34.  She has two daughters who are 13 and 15 today.  She was reasonably active prior to the accident, doing housework, driving her children to events, and camping. 

[25]            She was involved in two previous accidents.  On December 7, 2000, Mardones was hit by a truck while riding a bicycle suffering whiplash type injuries.  She suffered from these injuries for a period of approximately two years. 

[26]            Mardones was reinjured on September 13, 2003 in a rear-end collision and took 6 months of massage therapy. 

[27]            On June 16, 2005 she was injured in the current accident.  She saw Dr. Birch on the day of the accident. 

[28]            Dr. Birch reports that she complained of headaches, neck, upper and low back pain, right shoulder and right ankle pain. 

[29]            She saw him a further seven times during the spring and summer of 2005.  She had 11 chiropractic treatments from Dr. Truong during 2005.  Most injuries had subsided by the end of 2005 except the low back pain. 

[30]            Dr. Birch referred Mardones for massage and chiropractic treatment, which she attended for about 6 months.  She was given stretches and exercises to perform and an anti-inflammatory for pain and inflammation. 

[31]            In July 2006 she fell off a chair reinjuring her back.  In 2007 and 2008 she saw her physicians less frequently.  Dr. Birch acknowledged under cross-examination that she had not seen him for about a year and half prior to the court case. 

[32]            Dr. Truong opined that Mardones should with consistent care and a monitored program “reach her pre-accident status”.  She does “…not anticipate any permanent sequelae” from the accidents, but noted that recovery times could vary. 

[33]            Dr. Birch under cross-examination acknowledged that Mardones’ reaction to the low impact accident was not “normal”, although he noted that people may react differently to the same event, and gave some examples of that. 

[34]            Under cross-examination he also acknowledged that a lot of the symptoms she experiences arise from “something else”.  She has an underlying condition of depression and alcohol consumption which makes her depression worse. 

[35]            Dr. Birch has prescribed medications to deal with pain but Mardones has eschewed that advice and drinks alcohol for her pain, although the cost is about the same.  He has strongly suggested exercises including water aerobics.  She has gained weight post-accident which exacerbates her symptoms.  She has not carried out the exercise program. 

[36]            The weight gain may be a result of depression, pain, and drink.  She has not taken antidepressants as prescribed.  The recent depression is not a result of the accident. 

Damages

[37]            The parties are far apart on damages.  The plaintiff included cases covering a broad range of damages.  The defendant argues that there should be no award as the symptoms are not reasonably attributable to the accident:  Mustapha v. Culligan of Canada Ltd., 2008 SCC 27. 

[38]            I am mindful of the admonition of McEachern C.J.S.C. (as he then was) in Butler v. Blaylock cited in Price v. Kostryba (1982) 70 B.C.L.R. 397 (S.C.) that a court “should be exceedingly careful” when assessing damages in a case such as this. 

[39]            I do not accept the position of the defendant. 

[40]            The damages for which I am prepared to make an award in this case could reasonably be foreseen as arising from a rear end low or no damage collision of the sort which I accept took place in this case, similar to that in Vasilyev v. Fetigan 2007 BCSC 1759. 

[41]            Neither do I accept the position of the plaintiff. 

[42]            The plaintiff tended to exaggerate her symptoms, which, especially latterly are probably not attributable to the accident.  I accept, however, that she was injured in the accident but her ongoing symptoms after one year post-accident are a result of her failure to mitigate her damages, or other causes.  

[43]            The plaintiff cites Love v. Lowden 2007 BCSC 1007.  In that case the court accepted the injuries as permanent noting the physician’s opinion that “low/sacroiliac pain will be a life long symptom”.  The plaintiff had been very active and had to significantly alter his lifestyle.  The court awarded $60,000 in non-pecuniary damages. 

[44]            In Chamberlain v. Giles 2008 BCSC 171 the court noted that a plaintiff is under an obligation to take reasonable steps to mitigate or lessen his or her loss, and the burden is on the defendant to prove, on a balance of probabilities, that a plaintiff has not acted reasonably to mitigate her loss. 

[45]            The defendant in Chamberlain failed to prove a lack of mitigation as the medications the plaintiff did not take were ones that her doctor recommended that she discontinue.  She followed the advice of her physician which included exercise, weight loss, etc.  On these points the evidence here is markedly in contrast with this case. 

[46]            The court in Chamberlain awarded $50,000 in non-pecuniary damages for chronic pain as a result of fibromyalgia and neck and back pain that was likely permanent. 

[47]            In my opinion neither Love nor Chamberlain are helpful in this case. 

[48]            The plaintiff also cites Sananin v. MacHale 2006 BCSC 672, a decision of Edwards J., who awarded $20,000 where the plaintiff suffered lower back pain attributable to the accident for some 18 months post-accident, with some intermittent symptoms and consequences thereafter. 

[49]            The case most similar to the case at bar is Vasilyev where there was little or no vehicle damage, problems with the plaintiff’s credibility but a finding that the immediate symptoms were attributable to the accident.  The court awarded $12,000 in non-pecuniary damages. 

[50]            In the instant case in my opinion the defendant has shown, on a balance of probabilities that the plaintiff has failed to mitigate her damages.  I accept the evidence of Dr. Troung that had she carried through with an exercise program and therapy her symptoms would have resolved. 

[51]            The plaintiff’s current state is a result of multiple causes but I find is most likely attributable to her lack of mobility and depression arising from weight gain, alcohol consumption, eschewing anti-depressants and failing to take the advise of her own physicians. 

[52]            In the circumstances an award similar to that in Vasilyev is appropriate which I fix at $12,000. 

Costs

[53]            If there is an issue as to costs they may be spoken to. 

“The Honourable Mr. Justice Savage”