2008 BCSC 1092 Dao v. Vance

Before: The Honourable Mr. Justice Williams

Reasons for Judgment

Counsel for the Plaintiff:	R. Shaw
Counsel for the Defendant:	S. Laudadio
Date and Place of Trial/Hearing:	June 23, 2008
	New Westminster, B.C.

INTRODUCTION

[1] This is an action brought by the plaintiff to recover damages arising from a motor vehicle accident. Pursuant to Rule 18A, she applies for judgment by way of summary trial. [Since the commencement of proceedings, the plaintiff’s name has changed as a consequence of her marriage. In these reasons, I will refer to her as Ms. Dao]

[2] Counsel agree that the matter is amenable to adjudication by way of summary trial. I am satisfied that I can make the findings of fact necessary to resolve the issues in this lawsuit.

BACKGROUND OF THE ACTION

[3] On January 7, 2005, the plaintiff was driving her 1995 Honda Civic northbound on Granville Street in Vancouver. She was travelling in the left-hand lane and had come to a stop because traffic ahead of her was stopped. At the time, the road surface was slippery and slushy from a recent snowfall. She was wearing her lap and shoulder belt at the time of the event.

[4] The defendant was driving his Ford F150 pick-up truck northbound as well. He was in a lane to the right of the plaintiff and behind her. He changed lanes, moving into her lane. As he did so, and seeing that her vehicle was stopped, he attempted to bring his vehicle to a halt, but because of the road surface he was not able to do so and his vehicle bumped into the plaintiff’s car.

[5] It is apparent that this was a low impact collision. The plaintiff says that it was a surprise to her and she was not braced for the contact. She described that she was “significantly jostled” by the collision and that her vehicle was pushed forward. The defendant says that he was nearly stopped at the time of contact and believes that the plaintiff’s car was not pushed forward by the contact. I note that in the report he filed with I.C.B.C., he indicated his speed at the time to be between five and ten kilometres per hour.

[6] Actual damage to the automobiles was extremely slight. There was no damage to the defendant’s automobile; the plaintiff’s car suffered only a minor cosmetic scratch upon the bumper; the cost of repair was in the order of $38.

ISSUES

[7] The plaintiff seeks an award for non-pecuniary damages, for wage loss and for special damages.

[8] The defendant, Mr. Vance, admits that he was negligent in the operation of his vehicle, but takes issue with the claim for damages. He says that the injuries sustained by the plaintiff were of such minor consequence that, if they are compensable at law, the amount of compensation should be nominal at best.

[9] As noted, the plaintiff seeks an award for wage loss. This claim was not specifically set out in her statement of claim. The matter was raised with counsel and Mr. Laudadio, counsel for the defendant, very fairly indicated that he was not caught by surprise and appeared to implicitly accept that the claim should be considered. On a review of the pleadings, I am satisfied that the issue is properly raised and can be considered under the general claim of “such further and other relief as the court may deem just”.

THE PLAINTIFF’S INJURIES

[10] The plaintiff said she felt no particular pain at the scene. In fact, she carried on to her job as a registered nurse but, once there, found she had a bad headache and left shortly, returning home. She had a bad headache through the balance of the day. The day following, the headache was gone but she had pain in her neck and in the back of her head. She did not work and instead attended at a clinic. She was diagnosed with a cervical strain. The attending doctor recommended a muscle relaxant and a painkiller, Ibuprofen, as well as massage therapy. In the days following, she experienced pain in her neck, her upper back and shoulders. She took a couple of days off work. On January 12th, she had a session of massage therapy and then attended upon her family doctor, Dr. Barclay. She described continuing discomfort as well as some nausea and dizziness and on occasion pain in her left arm in the days following the accident.

[11] Ms. Dao returned to work for four shifts after the accident, although she was assigned light duties. She reported that the pain continued in her neck, upper and lower back and shoulder. As well, there was occasional nausea and dizziness. As a consequence, she took approximately four weeks off work, from January 17 to February 15, 2005. She attributed this to the symptoms of the motor vehicle accident.

[12] The evidence discloses that the plaintiff suffered discomfort and some pain in her neck, upper back and shoulder area. Occasionally, she experienced nausea and a pins and needles sensation. These sensations occurred mostly in the five months or thereabouts following the motor vehicle accident. In addition to that discomfort, she experienced a degree of fatigue, frustration, and impatience arising from her condition.

[13] As part of her course of treatment, she attended upon a physiotherapist for a total of nine sessions between February 1st and March 23rd. In addition, she had fifteen sessions of massage therapy between January 12th and May 24th.

[14] Following the accident, the plaintiff maintained a diary wherein she documented her day-to-day activities and the effect of these injuries upon her. That is in evidence and runs through June 2005. It has been of value to my task of evaluating her claim. In that diary, she described the discomfort that her injuries were causing and their effect upon her day-to-day activities. She also made quite extensive use of a pain scale. She described a zero (0) as being no pain and ten (10) as being the worse possible pain. When asked at examination for discovery about the scale, she said that a one (1) would be pain that could be felt, but at the low end of the scale, that a reading of two (2) would not be such as to cause her to take painkillers, and that at three (3), she “might think about it”. She said that she would consider taking over-the-counter painkillers, such as Ibuprofen or Tylenol at about a pain scale rating of four (4).

[15] In reviewing the entries she has made in her pain diary, it is apparent that she experienced pain, soreness and stiffness lasting over a number of weeks after the accident. On a significant number of her entries, she has indicated the degree of pain on the numerical scale. The entries range between 1 out of 10 and 4 out of 10, with most of the entries being either 1 or 2. With respect to medication, there are entries where she took Ibuprofen or a muscle relaxant. It is evident that the discomfort was the greatest in the two or three-month period following the accident, and that the discomfort level diminished after that time. For example, in the month of April, there were two entries where the pain was indicated as being at a level 2 or 3; the balance of the entries were 1 out of 10, with the indication that the discomfort was modest. Fortunately, her recovery continued in that trend.

[16] There are in evidence two medical reports authored by Dr. Barclay. The first, prepared at the request of I.C.B.C., is dated June 21, 2005.

[17] Dr. Barclay has also provided a letter dated February 22, 2008 wherein he sets out his qualifications, his findings and observations and his conclusion. In brief, he reports that the plaintiff sustained a grade II neck and upper back strain as a result of the motor vehicle accident. In his examination, he found no apparent diminishment of her range of motion, but he did observe localized muscular tenderness on palpation. He saw her on approximately six occasions in relation to complaints arising from the accident. Her recovery was gradual, and he concluded that her symptoms were essentially resolved by September 2005. In his opinion, the plaintiff has made a full recovery from her injuries. He states that she was healthy prior to the accident and had no history of neck or back problems. He opined as well that the time she took off work was reasonable in the circumstances.

DISCUSSION AND ANALYSIS

[18] This was undoubtedly a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is her self-report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces were greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

[20] With respect to the lack of objective evidence of physical injury and ongoing symptoms, it is well accepted that the court must be cautious in assessing the evidence. The determination must be made in a way that the outcome will be fair to both the plaintiff and the defendant.

[21] I find that the plaintiff is an honest witness and accept her evidence of the event and its consequences. On all the evidence, I conclude that the plaintiff was injured in the collision and that she experienced moderate discomfort in the first two or three months following the accident. With the passage of time, she made a steady and gradual recovery, although there was some ongoing but lessening discomfort over the following months. Fortunately for her, the degree of pain was not especially great, although it undoubtedly detracted from her everyday comfort and full enjoyment of life. To some degree, she experienced frustration and impatience with the way she felt. There is a paucity of evidence with respect to details of disruptions or difficulties that the injuries caused in her day to day routine.

[22] It is to her credit that she took the time off from work as she did following the accident and that she actively pursued a course of therapy, both by way of massage and physiotherapy. The fortunate outcome in this case is attributable in significant part to the care that she has taken and to the fact that she is evidently a young and healthy person.

[23] With respect to the quantum of damages for pain and suffering, the plaintiff submits that the appropriate range is between $10,000 and $15,000. She has provided a number of authorities in support of that position. These include the following: Booth v. Hedderick, 2004 BCSC 132; Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053; Holt v. Von Hertzberg, 2006 BCPC 228; Sananin v. MacHale, 2006 BCSC 672; and Rubino v. Lerfold, 2004 BCSC 282.

[24] The defendant, as indicated, contends that the injuries warrant at best a nominal award of damages.

[25] Taking into account the degree of injury that I have found, and giving due consideration to the relevant authorities, it is my conclusion that the appropriate award of damages to compensate the plaintiff for her pain, suffering and loss of enjoyment of life is $9,000.

[26] There is the matter of the plaintiff’s claim for wage loss. I accept that she did take time off work as a legitimate response to the injuries she sustained, and as well, to enable her to recover from her injuries. The claim is a reasonable one, and is compensable. She has established a net wage loss of $2,031, and the award shall be in that amount.

[27] The plaintiff also seeks to recover for certain out of pocket expenses incurred as a consequence of the accident. The constituent elements of her claim for special damages are as follows:

a) Expenses for physiotherapy: $186.42;

b) Expenses for massage therapy: $300;

c) Personal trainer: $684.80; and

d) Exercise ball: $47.88.

TOTAL: $1,219.10

[28] I note there was a discrepancy between the amount of the claim as set out in the plaintiff’s affidavit and the appended exhibits. The amount awarded is in accordance with the receipts filed.

[29] In summary, the plaintiff shall be awarded the following:

1) Non-pecuniary damages: $9,000;

2) Wage loss: $2,031; and

3) Special damages: $1,219.10.

TOTAL: $12,250.10

[30] The plaintiff also seeks an order for costs. Presumptively, she is entitled to recover her costs, assuming there are no relevant considerations of which I am unaware.

[31] Because this action was brought under Rule 66, the plaintiff’s right to recovery of costs is governed by subrule 29. If it is necessary for counsel to make further submissions with respect to costs, arrangements should be made through the New Westminster Registry.

“Williams J.”

Citation:	*Dao v. Vance,*
	2008 BCSC 1092