2008 BCSC 1102 Mak v. Eichel

Before: The Honourable Mr. Justice Truscott

Reasons for Judgment

Counsel for the plaintiff P. Truong:	C.D. Jago
Counsel for the defendants:	J.S. Arnold
Date and Place of Trial/Hearing:	April 16-18, 2008
	New Westminster, B.C.

[1] The plaintiff Phung Truong aka Holly Truong claims personal injuries and other losses arising out of a motor vehicle accident of August 13, 2005 on Highway #1 in Surrey, British Columbia. She was 27 years old at the time.

[2] The plaintiff was a front seat passenger in a sedan being driven by her boyfriend at the time, and later her husband, Peter Mak, when it was struck from the rear by a pick-up truck owned by the defendant Oliver Eichel and driven by the defendant Travis Eichel.

[3] Liability was admitted and the trial proceeded as an assessment of damages. The claim of the co-plaintiff Peter Mak, was resolved prior to trial.

[4] The plaintiff Phung Truong says that immediately after the impact she was in shock and crying and she had stiffness in her back, neck and shoulders and a bruise on her left thigh. She was taken to Langley Memorial Hospital where she felt the stiffness increase.

[5] At the hospital she was prescribed a drug for pain and inflammation and she took this medication a couple of times a day for the first week after the accident.

[6] The plaintiff saw her family doctor, Dr. Yong, two days after the accident on August 15, 2005, and at that time complained of increasing neck pain and stiffness and increasing shoulder pain and stiffness. The range of motion in her neck was normal but there was localized tenderness and stiffness of the neck muscles. She was advised to do stretching exercises and take Advil for pain and she was sent for a course of physiotherapy.

[7] The plaintiff was the manager of a warehouse for a fashion clothing company, and she was advised by Dr. Yong to take time off work. This she did for a period of two weeks.

[8] Dr. Yong says he always recommends that his patients stay as active as possible as this aids in their recovery. The plaintiff says she stayed off work for two weeks as she was so sore and stiff around her neck and shoulders that she had trouble sleeping and found it hard to get out of bed. She basically ceased all of her activities and remained at home during this period of time.

[9] The plaintiff lived with her sister Rosa at that time. Rosa worked long hours and their schedules rarely coincided. The plaintiff usually did the vast majority of the cooking and housework for the two of them but for a period of two weeks after this accident Rosa had to take on all the chores as best she could while the plaintiff rested.

[10] The plaintiff and her sister used to walk together once or twice a week for exercise, prior to the accident, but this was discontinued after the accident.

[11] The plaintiff took 14 physiotherapy treatments from Mr. Tam, from August 2005 to October 2005 where she was treated for her neck and upper back complaints, improving all symptoms over time. The plaintiff was given a set of home exercises to do daily during the physiotherapy sessions and following the final session.

[12] The plaintiff says she did some stretching exercises at home but not all of the exercises recommended by Dr. Tam, although she cannot recall what exercises she left out and cannot recall that Dr. Tam said to do them daily. Her sister Rosa confirms that the plaintiff did some stretching exercises at home.

[13] Dr. Wong saw the plaintiff again on August 19, 2005 when her neck and shoulder pain were getting worse and she was complaining of headaches and insomnia as well. Her neck movement was restricted in all directions and she had tenderness in the cervical and intrascapular areas. The parties agreed that the plaintiff’s headaches and insomnia resolved two weeks after the motor vehicle accident.

[14] Dr. Wong’s diagnosis was of soft tissue injuries of moderate severity involving the neck and shoulder and the plaintiff was advised to continue physiotherapy.

[15] The plaintiff’s main source of exercise was walking either with her sister or her future husband, but she never seemed to get back to it with any degree of regularity. She says she was never really in the mood, in part from her injuries, but she also allows that her daily schedule and other priorities had a lot to do with her decision not to continue her walking on any regular basis.

[16] The plaintiff’s main responsibility at work was computer work but she also helped out in the warehouse with some of the physical labour from time to time as it allowed her to keep tabs on the people she was to supervise.

[17] After this accident she continued to do some of this physical labour but not to the same extent and presently she spends most of her time on the computer. She says her employer may have hired another warehouse worker or the warehouse workers may have had to work harder.

[18] The plaintiff says she misses this physical labour and ability to supervise in the warehouse, but she did not lose any wages during her time off and her employer does not expect any return on their payment, so there is no wage loss claim.

[19] Dr. Yong assessed the plaintiff again on September 17, 2005 when she was still complaining of left shoulder pain with stiffness and tenderness, interscapular pain and neck pain. On examination there was tenderness in her cervical area and still some limitation of motion in her neck area.

[20] Dr. Yong’s diagnosis at that time was of cervical and left shoulder sprain and the plaintiff was advised to continue with physiotherapy and start massage treatment. The plaintiff was still in physiotherapy with Mr. Tam at that time and she says that her sister and her husband gave her home massages from time to time.

[21] By November 25, 2005, three months after the accident, the plaintiff was no longer receiving physiotherapy but she was still experiencing left shoulder pain, tenderness and stiffness and reduced mobility. She also had thoracic tenderness and pain and rotation of the interscapular area was also reduced. The plaintiff did not complain of any neck pain at that time.

[22] Dr. Yong’s diagnosis at that time was of thoracic and interscapular strain.

[23] Dr. Yong at that time advised the plaintiff to take Tylenol as needed and to attend physiotherapy as needed if she experienced more pain.

[24] The parties agreed for the purpose of trial that the plaintiff’s neck pain resolved in four months after the accident but she continued to suffer from stiffness in her neck intermittently thereafter.

[25] The plaintiff saw Dr. Yong again on February 24, 2006, five months later. There was still stiffness, tenderness and pain in her left shoulder radiating across to her mid-back and she advised Dr. Yong at that time that she had experienced some anxiety about driving that prevented her from driving for the first month after the accident.

[26] At that time Dr. Yong expressed the view that the plaintiff would continue to improve and it was unlikely she would suffer any permanent disability as a result of the motor vehicle accident.

[27] The plaintiff did not attend Dr. Yong’s office for treatment again until January 6, 2007, approximately 11 months later. That was a visit to Dr. Yong’s colleague, Dr. Chang. At that time the plaintiff complained of mild left sided neck pain and stiffness which was intermittent.

[28] As previously stated the parties had agreed for trial purposes that the plaintiff’s neck pain resolved in four months after the accident so I am only able to consider the complaint of neck stiffness rather than neck pain.

[29] The plaintiff at that time also had tenderness of her left trapezius muscles but her neck and back movements were within normal limits.

[30] Thereafter the plaintiff was seen throughout 2007 a number of times in Dr. Yong’s office for other unrelated issues, but not again for the motor vehicle accident until January 18, 2008.

[31] The plaintiff says she was not seeing Dr. Yong on any regular basis for her injuries from the motor vehicle accident because he was not providing any treatment to her and was not making any recommendations that were new and she saw no point in seeing him simply to get a further assessment of her condition.

[32] On the visit of January 18, 2008 the plaintiff was still experiencing interscapular pain which was intermittent and was worse at work. At that time there was still tenderness in her cervical area and tenderness and stiffness in her interscapular area, but the range of motion of her neck was normal. She was advised to do stretching exercises at home.

[33] The plaintiff explains that when she works on the computer she experiences tightness and tingling across her shoulders and she has to rotate her shoulders from time to time to alleviate this feeling.

[34] The last time she was assessed by Dr. Yong before trial was January 26, 2008. Then she was complaining of left shoulder pain every other day but had no more back pain. She still had tenderness in her left interscapular area but no tenderness in her neck and neck movements were within normal limits.

[35] Dr. Yong says that the plaintiff was making good progress although she was suffering from stiffness of the neck and pain in the left shoulder every other day but he considered it unlikely that she would suffer any permanent disability or sequelae from the accident. He considered it likely that she might continue to suffer some degree of left shoulder pain probably for another one or two years. However, in his view she should continue to improve but if she does suffer any worsening of her pain she is to be reassessed and if necessary referred to a specialist.

Submissions

Non-pecuniary damages

[36] The plaintiff submits that while her headaches and insomnia resolved in two weeks and her neck pain in four months, she continued to have intermittent neck stiffness thereafter along with shoulder pain and stiffness which have continued to the present day, and her doctor says she will probably continue to suffer some degree of shoulder pain for another one or two years on an intermittent basis. Dr. Yong also says in his report that she will probably continue to suffer some degree of neck pain for the same duration but the parties agreed in their statement of agreed facts that her pain in her neck resolved in four months time and she only continued to suffer stiffness in her neck intermittently thereafter.

[37] The plaintiff had 14 physiotherapy sessions over the first two months following the accident and was given home exercises during her physiotherapy sessions that she did, but only to some extent.

[38] She was not able to work for two weeks following the accident and has not lost any wages although she says she still continues to suffer from some shoulder stiffness while working over her computer.

[39] She also says she misses the ability to engage in some physical labour in the warehouse at work that she used to enjoy and she does not walk now as often as she used to, although she is candid in saying that her reduced walking may be as a result of her new priorities in life.

[40] Her counsel refers to her injuries as a moderate soft tissue injury that is still creating intermittent shoulder pain and stiffness and submits it presents a permanent modification to her job. Otherwise he concedes there has not been much impact on her lifestyle beyond the first two weeks.

[41] He submits that no failure to mitigate her damages has been proven by the defendant because on the plaintiff’s evidence she was doing some of her home exercises and there is no evidence that more home exercise on her part would have improved her condition even more.

[42] He submits that the range of pecuniary damages should be in the order of $30,000 - $45,000 for a moderate soft tissue injury, and he relies upon the decisions of Jones v. Davenport; Jones v. Kretschmer, [2008] BCSC 18 and Baas v. Jellema (1998), B.C.J. 918.

[43] In Jones the plaintiff had been in two motor vehicle accidents approximately one year apart in 2005 and 2006 when she was in her mid twenties. She was a passenger in both vehicles when they were rear ended. She suffered soft tissue injuries to her neck and upper back in the first accident and the second accident aggravated those injuries that had not resolved by that time and had not resolved by the time of trial in November or December 2007.

[44] Halfyard J. concluded that the plaintiff had sustained a whiplash injury of moderate severity with continuing pain in her neck on a fairly frequent basis and occasional headaches. He found the pain was not disabling and the majority of episodes could be properly characterised as periods of discomfort.

[45] He found that the plaintiff had substantially recovered from the second motor vehicle accident in two or three months.

[46] He went on to find that at the time of trial it was not probable that her symptoms would be permanent, but he concluded there was a real and substantial possibility that she would experience symptoms indefinitely and he put the extent of that risk at 25%. He also concluded that there was a real possibility she may develop arthritic change in her cervical spine in later years.

[47] Her damages were assessed at $45,000.

[48] In Baas a jury had assessed non-pecuniary damages resulting from a motor vehicle accident at $125,000. This was reduced on appeal to $40,000, the court concluding that the appropriate range was $30,000 - $40,000.

[49] In that case the plaintiff had sustained soft tissue injuries to her neck and low back from which she was in extreme pain with tremendous headaches. She wore a cervical collar for two months and for about six months had severe headaches every day. Nine months after the accident she was taking Tylenol 3 for back pain. She continued to report that most activities caused her pain almost two years later.

[50] At trial almost three years later she was still having problems including headaches and some restrictions in heavy activity but the prognosis at trial was good with the medical opinions being that she should not have any long term disability but possibly ongoing discomfort in her neck and back.

[51] Here defence counsel submits that the plaintiff sustained a typical mild soft tissue injury that was only acute for three or four months. She did not continue her physiotherapy even when she had asked for more physiotherapy herself in January 2007. She also did not do all her home exercises as instructed by the physiotherapist. She went through long periods without any medical attention which it is submitted indicates that her injuries were not very significant and were not bothering her very much.

[52] Presently she only has shoulder stiffness when she works at her computer and her doctor, Dr. Yong, says she should completely recover in one or two years.

[53] Defence counsel submits the plaintiff has not mitigated her damages by doing all her instructed home exercises and by taking more physiotherapy and he submits it is a natural inference that more exercise and physiotherapy would have improved her condition sooner.

[54] He cites cases such as Way v. Frigon, [2001] BCSC 573; Henderson et al v. Peachey and Pare, [2003] BCSC 1104, Mangat v. Jackson, [2004] BCSC 319 and Liao v. Doe et al, [2005] BCSC 431, all cases dealing with soft tissue injuries that resolved in a matter of months in the first year or shortly thereafter and awards not exceeding $10,000.

[55] Defence counsel submits that the plaintiff’s award here for non-pecuniary damages should be in the range of $12,000 - $15,000 but should be reduced to a range of $8,000 - $10,000 because of her failure to mitigate her damages by doing all her home exercises as directed by the physiotherapist.

[56] In Middleton v. Morcke and Lee, [2007] BCSC 804, the defendants took the position that the plaintiff had not mitigated her damages by not exercising properly and by not following medical advice to take biofeedback, group therapy or antidepressant medication. The trial judge said that whether the plaintiff acted reasonably is a question of fact, that as a matter of law she was not held to any high standard of mitigation and the burden of proof was on the defendants. The trial judge found the failure to mitigate had been proven and reduced damages by 40%.

[57] In Taggart v. Yuan, Vancouver Registry M062358, January 11, 2008, the trial judge found that the plaintiff did not persist in stretching exercises recommended by the physiotherapist. She had not until recently pursued forms of therapy including at home exercise, despite the recommendations of her physician. The trial judge had evidence of an 80% probability of resolution of symptoms of soft tissue injury with appropriate exercise and he reduced damages by 30% for failure to mitigate.

Analysis

[58] In my view all the cases cited by both counsel on non-pecuniary damages are distinguishable. The plaintiffs’ cases involve more significant injuries than the plaintiff suffered here. In Jones the finding was that the plaintiff had a substantial possibility of experiencing symptoms indefinitely as well as a real possibility of developing arthritis in the cervical spine.

[59] Here Dr. Yong does not say that in his prognosis those possibilities arise. He says it is unlikely the plaintiff will suffer any permanent disability and while it is likely she might continue to suffer some degree of left shoulder pain for one or two years she should continue to improve. He does not say she has any permanent disability nor any real possibility of that. He only says that if she suffers a worsening of her pain she will be reassessed. That is not a prognosis.

[60] In Baas the prognosis was of possibly ongoing discomfort in her back and neck and she was still having problems including headaches and some restriction on heavy activity at trial three years later. She initially suffered extreme pain and headaches for the first six months and had to wear a cervical collar for two months.

[61] Here the plaintiff did have some initial neck and upper back pain and stiffness with headaches for two weeks but she was able to return to work full time thereafter and her neck pain resolved in four months. After seeing Dr. Yong in February 2006, five months after the accident, she did not re-attend his office again until January 2007 and that was for left sided neck stiffness which was intermittent. She asked for a prescription for physiotherapy at that time and when she received that prescription she did not use it. Thereafter she did not attend Dr. Yong’s office again for injury complaints until one year later in January 2008 when she had interscapular pain intermittently that was worse at work over her computer.

[62] The plaintiff says she did not attend her doctor more often for her complaints because Dr. Yong was not able to offer her any more relief.

[63] I consider it more likely that the plaintiff did not see her doctor more often because she did not have a level of discomfort that required this and she was too busy with her other priorities in life. She was able to carry on her day to day activities without any significant impediment and she did not even find it necessary to re-attend for physiotherapy treatment in January 2007 even after she had asked for this prescription. When she was prescribed home exercises she only did some of the exercises and she cannot even recall which ones she did.

[64] The evidence indicates to me that the plaintiff had an initial soft tissue injury to her neck and upper back and she substantially recovered approximately five months after the injuries, although the injuries to her upper back and shoulder area have lingered on to the point where Dr. Yong says they may last another one or two years.

[65] I do not think the defendant’s cases are particularly relevant either because they all involve injuries that had fully resolved before trial.

[66] I do believe, however, that the value of the plaintiff’s claims for non-pecuniary damages is closer to the defendant’s estimate than the plaintiff’s estimate.

[67] I assess the plaintiff’s claim for non-pecuniary damages at $20,000. I include in this claim any claim for loss of her housekeeping capacity for two or three weeks while her sister carried on this responsibility as best she could although I am not completely satisfied this is a proper claim. The plaintiff provides no evidence of any replacement cost and only seeks a very modest amount to be included in non-pecuniary damages.

Mitigation

[68] As was said in Middleton the defendant has the onus of proving a failure to mitigate and the plaintiff is not held to any high standard of reasonableness.

[69] Here the evidence is that the plaintiff did not do all of her home exercises and did not take physiotherapy when she had asked for it.

[70] However, I agree with plaintiff’s counsel that Dr. Yong was not asked and did not say that it would have made any difference to the plaintiff’s recovery when he gave evidence at trial and without him being asked that question I am not prepared to draw the inference that it would have made a difference.

[71] I also observe that in Dr. Yong’s report of March 14, 2006 he says that on September 17, 2005 he only advised the plaintiff to attend physiotherapy as needed and thereafter it does not appear that he or his colleague prescribed any more physiotherapy on their own.

[72] I am unable to say that the defendant has proven any failure to mitigate and I consider that this issue of failing to do all home exercises and pursue physiotherapy is more properly handled on an overall consideration of the degree of her disability and the value of her non-pecuniary damages.

Loss of future earning capacity

[73] The plaintiff says she is not able to do the physical labour in the warehouse that she used to do before the accident because of tightness and tenderness in her left shoulder area that she has on an intermittent basis, even though she initially was able to do some of the labour for awhile after the accident.

[74] This labour appears to have been in part for the purpose of enabling the plaintiff to supervise the warehouse employees. She does not do that any more but her employer does not complain about that nor reduce her income.

[75] Dr. Yong does not say she cannot do physical labour again. He says she should completely recover in one or two years. Accordingly any claim could only be for a very short period of time.

[76] In Parihar v. Allen and Yee, [2006] BCSC 1505, I awarded $5,000 to Mr. Parihar for his loss of income earning capacity. There the evidence was that he may continue to have flare-ups in his back if he did any activity that put strain on that area and the evidence was that his back was being strained on lifting heavy objects. The medical evidence was that this could be an ongoing problem.

[77] Here Dr. Yong does not give any evidence of any permanent or indefinite problem.

[78] I decline to award the plaintiff any amount for loss of income earning capacity.

Conclusions

a) The plaintiff is awarded $20,000 for non-pecuniary damages to include any compensable loss of housekeeping capacity.

b) There is no award for loss of income earning capacity.

c) The plaintiff’s failure to mitigate has not been proven.

d) Unless there is a submission of sufficient reason for bringing the proceeding in Supreme Court, the plaintiff is not entitled to recover any costs, other than disbursements, as the sum awarded is within the jurisdiction of the Provincial Court under the Small Claims Act and costs under Rule 66(29) are subject to that requirement.

“Truscott J.”

Citation:	*Mak v Eichel,*
	2008 BCSC 1102