2008 BCSC 1555 Woods v. Chahal

Before: The Honourable Madam Justice Humphries

Reasons for Judgment

Counsel for the Plaintiff:	C.B. Doll
Counsel for the Defendant Aviscar Inc., and for the Third Party, ICBC:	J.M. Noble
Date and Place of Trial/Hearing:	October 28 – 31, 2008
	Vancouver, B.C.

[1] Mr. Woods suffered soft tissue injuries in a motor vehicle accident on September 12, 2005. The defendant did not appear at trial and took no part in the proceedings. Counsel for the third party assumed conduct of the defence and has admitted liability.

[2] The plaintiff was a passenger in a car driven eastbound on W. 41st Avenue in Vancouver, B.C. by his girlfriend at the time, Ms. Fok. It was about 9:00 a.m. and they were on their way to work. The defendant’s car, proceeding southbound, having passed through the stopped lanes of heavy westbound traffic, tried to make it through the eastbound lanes as well. His car was struck on the rear bumper by Ms. Fok’s car. The defendant’s bumper was torn off; Ms. Fok’s car sustained damage to the right front bumper area.

[3] Mr. Woods and Ms. Fok continued on to work, after exchanging information. Ms. Fok was too rattled to drive and the plaintiff took the wheel. He felt no symptoms other than shock that day, and continued to work. The next day he went to see ICBC and agreed that he reported starting to feel some stiffness and a little bit of pain in his upper back area, lower back, neck and left arm.

[4] Over the next few days, the pain in his left arm and a transitory pain in his knee disappeared. However, his neck and upper back pain persisted. He had headaches which began to subside after about a month and eventually disappeared during his physiotherapy sessions. He had occasional nausea and dizziness for a couple of months after the accident. He did not miss any time from his work as a computer game animator, but felt his concentration was less.

[5] He went to physiotherapy regularly in the fall of 2005 and took Advil, Tylenol 3’s and Robaxacet regularly.

[6] The plaintiff was a very active young man, participating in many athletic activities, organized sports and personal training. He loved snowboarding. He played competitive soccer. He belonged to a basketball team. He jogged and lifted weights. Many of these activities were connected with sports teams at work or with the company gym. These activities all ceased during the fall of 2005, and Mr. Woods said he felt angry and isolated. He became irritable and grumpy. Mr. Woods’ relationship with Ms. Fok suffered, both emotionally and in terms of physical intimacy, and eventually ended the following year. His training partner, Mr. Candano-Dalde, found Mr. Woods’ continued excuses for missing training puzzling and hurtful, because Mr. Woods would not admit he simply couldn’t keep up anymore.

[7] By December of 2005, having undergone physiotherapy for three months, he felt “distinctly improved”, as his family doctor put it. However, the physiotherapy had been helpful, so his doctor recommended more.

[8] The plaintiff tried to snowboard in December but was unable to. After three months away from his physical regimen, he was obviously deconditioned.

[9] By February of 2006, Mr. Woods’ physiotherapist and doctor told him further treatments would serve no purpose and he could exercise and keep active on his own, which he did. His mother, who said she raised her son to persevere through adversity, bought him an exercise ball in the summer of 2006 to help him improve his fitness.

[10] The plaintiff returned to running, soccer, and lifting weights early in 2006, but could no longer play competitively and his weight lifting capabilities were reduced. By February of 2006, he was able to snowboard down the difficult and demanding double diamond runs at Whistler, but was not able to go full out all day as he had done before. His social life became normal again.

[11] The plaintiff said his recovery plateaued in August of 2006; this was also documented by his family physician.

[12] In 2006, Mr. Woods was promoted by his company to lead artist, a position to which he had aspired.

[13] In the summer of 2007, the plaintiff was tackled in a soccer game and broke his collarbone. It was extremely painful and he took heavy medication. He took some time off work, but even after his return, he was unable to be productive at work and was eventually let go. Losing his job meant he could no longer use the company gym and participate in their organized sports.

[14] The plaintiff’s family doctor acknowledged that such a tackle could cause soft tissue injury, and said it was not impossible that there were overlapping regions of discomfort, but he thought it more likely that any remaining left shoulder symptoms were related to the motor vehicle accident, not to the soccer injury. The orthopaedic specialist who examined the plaintiff for the motor vehicle injury was not told of the soccer injury, but not much was made of this in cross-examination because the third party takes the position that the effects of the motor vehicle injury were long gone by the summer of 2007.

[15] The plaintiff says the effects of the collarbone injury from the soccer tackle are completely gone.

[16] The plaintiff says he still feels the effects of the motor vehicle accident in the form of a constant itching in his upper back between his shoulder blades which can occasionally increase to a burning pain. He cannot sit at the computer for hours on end as he used to. He uses Advil when he has a flare-up of discomfort. His neck pain and stiffness never went away completely, but is off and on, with good days and bad days. Physical activity relieves it.

[17] The plaintiff says he is now able to snowboard at his old level with few limitations. However, running for any period of time makes his shoulder stiff and brings on a burning sensation. Nevertheless, he trained for the Sun Run last year and enjoyed the run but does not know if he will do it again because the pounding makes his shoulder burn. He has begun to learn to break dance but has to avoid some of the moves.

[18] He is now employed as a teacher of graphic arts and animation, and does some freelance work. He says he has to take more breaks, cannot sit as long as he used to, and has to stretch more. Things take a little longer than they did before. If he is working to a deadline, he requires Advil.

[19] I accept the plaintiff’s evidence as to the effects of his injuries throughout the relevant period, including his description of the minor residual effects. He was a straightforward witness, and was not shaken on cross-examination. His evidence as to the interference with his enjoyment of life and activities during the fall of 2005 was supported by his friends, and the doctors are of the opinion that the minor residual symptoms he describes are consistent with the injury he sustained in the motor vehicle accident.

Non-pecuniary damages

[20] The parties differ over the range of non-pecuniary damages. The plaintiff seeks damages in the range of $25,000 - $35,000, relying on Chan v. Lee, 2008 BCSC 594; Park v. Arther, 2007 BCSC 1365; White v. Stonestreet, 2006 BCSC 801; Asere v. Whelton and Transportation Lease Systems Inc., 2006 BCSC 1617; Parihar v. Allen and Yee, 2006 BCSC 1505; Krause v. Gill et al, 2006 BCSC 1459;. The third party says the injuries are worth only $8,000-10,000, referring to Al-Mandlawi v. Gara [2005], 2005 BCWLD 3655, 139 ACWS (3d) 478; Mangat v. Jackson 2004 BCSC 319; Booth v. Hedderick et al 2004 BCSC 132; Dymond v. Wilson 2001 BCSC 244; Rephin v. Alexander 2000 BCSC 454; Tran v. Bachmann 2004 BCSC 874 Liao v. Jane Doe 2005 BCSC 432, 21 CCLI (4^th) 94.

[21] In general terms, the cases referred to by the plaintiff make reference to longer periods of recovery than are present here. The cases referred to by the defendant deal with the approximately the same period of pain and discomfort as is present here, but do not take into account the substantial effect of the accident on this plaintiff’s lifestyle and daily activities.

[22] The plaintiff is not a complainer and worked through the injuries, but because of his focus on athletics, his lifestyle was significantly affected for a time. Being a strong fit young person probably hastened his recovery, but the inability to sustain his level of activity and his level of fitness meant that his quality of life was very different for a few months, with some small restrictions to this day. At present, he can no longer sit for long periods of time and must take breaks and stretch. He still has ongoing minor symptoms and occasional flare-ups.

[23] The plaintiff, who is now 32 years old, suffered a mild to moderate soft tissue injury in the motor vehicle accident. He was doing well within three months and was substantially recovered after six. He has some residual symptoms but they do not restrict the nature of his activities. However, the degree to which he can participate in them is different now.

[24] The more importance physical activity has in one’s life, the more one feels the loss of that capability. Mr. Woods’ life largely revolved around sports that required peak physical fitness, and the training required to maintain that level of fitness. Those aspects of his life were seriously disrupted for three to four months, with gradual improvement over the next two or three. His relationships with his friends suffered accordingly over that period. It was clear from his evidence and the evidence of Ms. Fok, his training pal, Mr. Candano-Dalde, and Mr. Woods’ mother, that Mr. Woods felt with some justification that there was nothing he could not do athletically prior to the accident. While he has recovered and is now very active again, it appears that he has lost the edge he once had.

[25] The award for non-pecuniary damages should adequately compensate Mr. Woods for all of these factors, past and future. I set those damages at $20,000.

Wage loss

[26] There is no claim for past wage loss.

[27] The plaintiff seeks a nominal amount for future loss based on his inability to sit at a computer for hours on end. I am unable to say that the plaintiff has established a real possibility that he has suffered any loss of earning capacity. He was promoted after the motor vehicle accident, and lost his job only as a result of the soccer injury. While he still suffers occasional symptoms which require him to take breaks and stretch, those form part of the consideration for non-pecuniary damages and do not affect the capital asset of his employability within the principles of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353.

Special damages and cost of future care

[28] The third party agrees that the plaintiff should receive compensation for the amounts he has spent on physiotherapy, mileage, and Advil and Robaxacet, but says there is no justification for future use of any medication.

[29] I am satisfied that the plaintiff does still suffer occasional discomfort and that his claims of $900 for special damages and $200 for future non-prescription medication are reasonable and warranted.

Result

Non-pecuniary damages:	$20,000
No award for future wage loss	$---------
Special damages	$ 900
Cost of Future Care	$ 200

Costs

[30] Unless there is a reason to speak to costs, the plaintiff will have his costs at Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries

Citation:	*Woods v. Chahal,*
	2008 BCSC 1555