2008 BCSC 921 Sangha v. Pun

Before: The Honourable Mr. Justice R.R. Holmes

Reasons for Judgment

Counsel for the Plaintiff:	D.M. McGregor
Counsel for the Defendants:	W. Chalcraft L.Scrivener
Date and Place of Trial:	June 23-26, 2008
	Vancouver, B.C.

INTRODUCTION

[1] The plaintiff seeks damages as a result of injuries he sustained in three motor vehicle accidents. The first accident occurred August 29, 2002; the second December 7, 2002; and the third June 24, 2003. The plaintiff’s claims under the three separate captioned actions are being heard together, with one counsel for the plaintiff and one counsel representing all the defendants in the three actions. Counsel has agreed that only a global award of the plaintiff’s claims being made without apportionment to the separate actions is required.

FACTS

[2] The plaintiff, a resident of Surrey B.C., is 49 years of age, married with daughters 15 and 9 years old, and a son 15. The plaintiff was born in India where he attained a Grade 10 education before coming to Canada in September 1982.

[3] In Canada, the plaintiff started work as a janitor of commercial premises and progressed to operating his own janitorial business. In the early 1990s, the plaintiff commenced a courier business involving delivery of packages and also an early morning delivery of goods from a bakery to retail businesses. The plaintiff worked in all aspects of the business from its administration, through driving delivery trucks, and the delivery of packages and product.

[4] The plaintiff’s business failed in the fall of 2001, and the plaintiff attributes its demise to the cancellation of business from persons who supplied him with business that originated on the internet following the September 11, 2001 terrorist attack in New York. The logic of the plaintiff’s reasoning for the demise of his business was not pursued by counsel. In any event it appears the business was only minimally remunerative, with the net business income for the year 2000 and 2001 respectively being only $3,562 and $1,916.

[5] In April 2002, the plaintiff took full time employment with Albi Beverages as a beverage delivery truck driver, which required him to move cases of beverages weighing fifty to sixty pounds, and facilitate their delivery from a warehouse to retail customers throughout the lower mainland.

[6] The first accident of August 29, 2002 occurred at an intersection when two vehicles collided and one spun into his stopped delivery truck. The plaintiff received musculo-ligamentous injury to his neck, back and knee. He received conservative treatment consisting of a regime of chiropractic, massage, exercise and pain killers. The plaintiff received Workers Compensation benefits and was off work for four to five weeks.

[7] The plaintiff’s evidence is that he had recovered and was “fine” before he was involved in the second accident of December 7, 2002. It is noted, however, that earlier that day, he received a chiropractic treatment. He explained that it was a very busy time of the year at work, and he had just experienced some normal stiffness associated with his increased seasonal work. The possibility exists, however, of some residual symptoms from the first accident still being present.

[8] The second accident involved the plaintiff’s vehicle being rear-ended while stopped on the roadway. He was accompanied in the car by his wife and three children, and the impact was severe enough that all sustained injury. The plaintiff complained that he felt “really bad” with neck, low back, and knee pain following the second accident.

[9] The plaintiff received massage therapy, chiropractic treatments, and attended a rehabilitation program, where he was assisted with being shown exercise routines for use in a swimming pool and a regime of home exercises. He was observed by Dr. Sidhu to have spasm of his paravertebral lumbar muscles, with marked limitation on forward flexion and tension. He was prescribed anti-inflammatories, analgesics, and muscle relaxant medications.

[10] The plaintiff attempted to return to employment May 22, 2003, but was unable to do the bending and heavy lifting required. His pain and restriction of motion continued.

[11] In the third accident of June 24, 2003, the plaintiff’s low, mid-back and neck pain was further aggravated. The impact was substantial, and was caused by being struck on the right side of his vehicle by another in a parking lot accident. The right front passenger window shattered and his van was written off as beyond economic repair. Dr. Sidhu described an “…acute flare-up of cervical-thoracic lumbar strain…”.

[12] Apart from the plaintiff’s failed attempt to return to work May 22-25, 2003, about six months following his second accident, and a brief period a few days in July 2005 at Priority Drugs, he has not worked over the past five years.

[13] The defendants point to at least two further events after the third motor vehicle accident sued upon in this proceeding in which they argue the plaintiff was injured and new injuries introduced for which they ought not to be liable.

[14] The plaintiff was in a fourth motor vehicle accident November 20, 2003, when backing out of a parking space. The plaintiff felt there was a 20% exacerbation of his low back pain from the accident which resolved within six months, whereas Dr. Sidhu could not detect any change in his ongoing condition on physical examination. I accept that, based on the evidence of Dr. Sidhu, any exacerbation was likely minor and of relatively short duration. I accept that, on a balance of probabilities, had the plaintiff not been injured in the earlier accidents and vulnerable to continuing pain, limitation and symptomatic flare-ups, the minor impact would have been without symptoms. The earlier motor vehicle accidents of August 29, 2002 and December 7, 2002 contributed to any aggravation of the plaintiff’s symptoms and I would in the circumstances upon principles in Athey v. Leonati, [1996] 3 S.C.R. 458, hold the defendants responsible.

[15] The second of the events occurred in the short period of time the plaintiff worked for Priority Drugs in July of 2005. The evidence of the plaintiff is that he was coerced into doing heavy lifting on the job, and while lifting he experienced a sharp pain in his low back, and thereafter he had an increase in his low back pain for six months that required increased use of analgesic medication for pain. The plaintiff made no Workers Compensation claim in respect of this injury.

[16] The lifting injury that occurred during his short lived employment with Priority Drug is of importance because it preceded by approximately one month the MRI of the plaintiff which disclosed an annular tear, which could account for the plaintiff’s sharp pain experienced in the lifting incident, and would be a cause unrelated to the prior motor vehicle accidents.

[17] It was Dr. Hershler’s evidence that the explanation for the sharp pain would be either mechanical back pain or an annular tear. However, it was his opinion that the abnormalities shown on the MRI, and the associated discogenic pain, was caused by the motor vehicle accidents.

[18] It is difficult to be definitive when dealing with causation in multi-tortious and non-tortious events. This difficulty attends those events in the life of the plaintiff since the first of his motor vehicle accident in August 2002.

[19] In present circumstance, it is most helpful to have the opinion of Dr. Sidhu, the family physician who treated the plaintiff throughout and has a long history and detailed knowledge of the plaintiff as a patient.

[20] Dr. Sidhu monitored the objective signs of the plaintiff’s injury which was muscle spasm, reduced range of motion, and visible hyertonicity of the musculature following each of the three motor vehicle accidents.

[21] His evidence was clear that the accident of December 7, 2002 caused the most significant injury. It was following this accident that the plaintiff began to exhibit symptoms that were consistent with a possible discogenic component. Dr. Sidhu’s working diagnosis was of musculoligamentous injury, and that continued for many months before the plaintiff’s continuing failure to improve cast doubt on the diagnosis, and raised questions as to whether there was another explanation.

[22] In hindsight, after the result of the MRI in August 2005 disclosed the tear in the annulus at L5/Ss and a disc bulge at L4/5 with impingement of the L5 nerve root, it was apparent Dr. Sidhu’s physical findings supported a clinical presentation that was consistent with a discogenic component to the plaintiff’s ongoing symptoms.

[23] The clinical history and presentation of the plaintiff since August 2002 is consistent with the abnormalities shown on the MRI as having been caused in one or more of the three subject motor vehicle accidents.

[24] In summary, the plaintiff first injured his neck and back in the motor vehicle accident of August 2002.

[25] The effects of that accident were either entirely resolved or only a minor residual ligamentous strain existed by the time of the second accident in December 2002.

[26] The December 7, 2002 accident was significant and its consequence beyond musculoskeletal injury. This accident was the likely cause of discogenic pain, disc bulges, annular tear and herniation revealed later by the MRI in August 2005.

[27] The plaintiff’s third accident in June, 2003 caused a significant lateral impact of a force which damaged the plaintiff’s van beyond repair. It caused aggravation of his musculoskeletal injuries and possibly disc injury. The November 2003 parking lot accident was of minimal force, there was no vehicle damage with little or no increase in observable physical signs to Dr. Sidhu.

[28] The plaintiff did exacerbate his symptoms and increase his discomfort and associated pain in the July 2005 lifting incident at Priority Drugs. I find his evidence of the Priority Drug employment quite bizarre and difficult to accept as being entirely accurate or credible. However, what is clear is the plaintiff knew he should not be lifting heavier objects, but did so anyway. The consequence of this incident, I find, was to cause a “flare-up” of his pain symptoms, but it was not of long duration. There was no new injury sustained and I would hold the defendants liable on the Athey v. Leonati principles as I earlier set out in respect of the November 20, 2003 accident.

[29] The plaintiff’s evidence was that he was depressed, felt useless, and that his family hated him and he had no friends. In my view this has been overstated by the plaintiff. The plaintiff was never treated for clinical depression. I find no indication from the two family members who gave evidence that they gave any cause for him to believe they hated him.

[30] I accept he was frustrated by an inability to return to work, the longevity of his symptoms, and his inability to assist his wife in financial support of the family. These matters would, of course, be troubling. I accept that his enjoyment of some social and religious activities were diminished because of interference of pain symptoms.

[31] I find it difficult to accept that some of the gardening and household chores he used to do alone were not done or assisted with by teenaged children living at home.

NON PECUNIARY DAMAGES

[32] The plaintiff has, since December 7, 2002, experienced functional limitations due to his low, mid-back, and neck pain with referral pain from the low back to his leg. The plaintiff is unlikely to achieve a substantial improvement in future, but exercise and care well assist in controlling pain and flare-ups.

[33] The plaintiff has variable symptoms involving his ability to assume static positions such as sitting for prolonged periods, walking for distance, and in lifting, carrying, and repeated bending. These impact his ability to work at jobs with physical components and to fully enjoy his leisure and family activities.

[34] I am indebted to counsel for the authorities they have provided. They are helpful but not definitive, and they assist in what, however, must be an assessment referenced to the plaintiff’s individual circumstances.

[35] I assess the plaintiff’s non-pecuniary damages at $70,000.

PAST LOSS OF INCOME

[36] The plaintiff is entitled to his wage loss of approximately four weeks which including 4% statutory holiday pay amounts to $1,497.60. I understand it is agreed that $1,396.26 was paid to the plaintiff by the Worker’s Compensation Board, and is included in the special damages to be paid the plaintiff. That leaves a balance for payment of $101.34 which I award.

[37] The plaintiff did not return to work following his December 7, 2002 motor vehicle accident, save for the one week he worked for Priority Drugs in July 2005.

[38] The plaintiff postulates that except for the injuries and disabilities arising from the three subject motor vehicles, he would have continued to work at full-time minimum wage employment which would closely approximate $20,000 annually or $384.62 per week. On that basis, the wage loss from December 7, 2002 to June 26, 2008 (less earnings of $316.63 at Priority Drugs) would approximate $115,285.

[39] I agree with counsel for the defendants, however, that the plaintiff was capable of some form of remunerative employment over the more than five years since his December 7, 2002 accident.

[40] The plaintiff tried to return to employment at Albi Beverages in May 2003 and found it to be too physically demanding. I accept he was not capable of that type of work, and he should have sought some form of lighter employment.

[41] The plaintiff’s history was of minimum wage employment and hence realistically any employment available to him would likely replace his income loss. The plaintiff was eminently well suited to being a courier. He had owned and worked in all phases of a courier business from the administrative level to the actual delivery aspect.

[42] The medical evidence in my view supports the ability of the plaintiff to have worked as a courier, and he should have sought out that type of work much earlier than would appear to be his start in that direction in 2005.

[43] In 2005, the plaintiff promoted himself for work as a courier and he was confident of his ability to do it. The evidence of Dr. Herschler was that when he saw the plaintiff in 2007, the plaintiff was capable of the work of a courier. His medical condition had been static for years at that time.

[44] I am of the view the plaintiff could and should have tried to return to work as a courier well prior to 2005. I accept he has entitlement for some of that pre-2005 period because of his failed attempt to return to heavier work but not the two years that occurred here before he sought any form of alternative employment.

[45] In the period from 2005 to trial the plaintiff testified he was fully capable of being a courier and that jobs existed. The plaintiff produced a resume that was appropriate to that type of work.

[46] I find the plaintiff’s lack of documentation of jobs applied for since mid 2005, or of any specific information as to the firms in the industry canvassed, is difficult to reconcile. The plaintiff has not even tried to do a courier’s job (apart from the fiasco at Priority Drugs in 2005) to prove his capability to an employer.

[47] The plaintiff himself gives troubling evidence, apart from his injuries and continuing disability, that would impact his ability to become employed, and have no relationship to his MVA injury and disability. The plaintiff testified that he was accused while working at Priority Drugs of driving dangerously. He testified that his wife has expressed similar concern.

[48] The plaintiff’s integrity in seeking employment must also be challenged in view of the plaintiff’s absurd evidence at trial that he stopped seeking work as he has now forgotten the skills of how to be a courier.

[49] I assess the plaintiff’s past wage loss from December 7, 2002 to June 26, 2008 to be $50,000.

LOSS OF FUTURE EARNING CAPACITY

[50] There is no doubt that the plaintiff’s income earning capacity is affected by his chronic pain and physical limitations and disabilities. The plaintiff is by education and experience limited to low income, minimum wage types of employment, although that is reflective of his actual earnings history prior to his injury and disability.

[51] The pool of low income jobs available to the plaintiff is however much diminished as he can no longer work at jobs with a physical component which he can no longer meet. The plaintiff is 49 years old and increasing age will combine to impede access to the work for which he remains qualified.

[52] The plaintiff’s health may be stressed more than the average person requiring that he take more time off work. He may in future be more suited to only part time or work of a sporadic nature.

[53] Counsel for the plaintiff on a mathematical basis computes the present value of the plaintiff’s earnings at minimum wage employment, including a negative contingency factor relating to Canada Census participation rates, as approximately $215,000 and suggests an award of $100,000.

[54] I assess the present value of the loss to the plaintiff’s future earning capacity to be $75,000.

SPECIAL DAMAGES

[55] The special damages have been agreed between counsel at $7,100 and I award that amount.

FUTURE CARE COST

[56] The evidence of Dr. Herschler supports the use of Pulse Signal Therapy as treatment that could assist the plaintiff. The plaintiff however did not testify he intended to take the treatment. If the plaintiff undertakes the therapy within six months of this judgment, the cost of the therapy will be part of this judgment, and will be paid directly by the defendants to the appropriate therapist.

COURT ORDER INTEREST AND COSTS

[57] The plaintiff will have Court Order Interest as appropriate, as well as their costs of these proceedings.

“R.R. Holmes, J.”
The Honourable Mr. Justice R.R. Holmes

Citation:	*Sangha v. Pun,*
	2008 BCSC 921