2009 BCSC 58 Ostovic v. Foggin

Before: The Honourable Mr. Justice Savage

Reasons for Judgment

Counsel for the Plaintiff:	J.M. Cameron
Counsel for the Defendant:	R.J. Merlo
Date and Place of Trial:	January 8-9, 2009
	Vancouver, B.C.

Introduction

[1] This case arises out of a low impact motor vehicle accident in which Gabriel Vaclav Ostovic (the “Plaintiff”) suffered minor injuries in a rear end collision. The motor vehicle accident took place November 11, 2005 (the “MVA”) when a vehicle operated by Dean J. Foggin (the “Defendant”) hit the Plaintiff’s vehicle in Gastown in Vancouver, British Columbia.

[2] In the pleadings, the Defendant denies liability, although I am advised that in the week before trial liability was admitted but not damages. The Defendant also denies that the motor vehicle accident caused the Plaintiff’s injuries, pleads the Negligence Act, and says that the Plaintiff failed to mitigate his damages.

[3] The matter proceeded subject to Rule 66.

[4] The two issues for determination are whether and what amount of damages were suffered, and the consequences for costs, where both parties acknowledge that the matter falls within the monetary jurisdiction of the Provincial Court.

Facts

[5] The Plaintiff is 47. He came to Canada twenty years earlier with his wife from the Czech Republic. In 1992 he became the Canadian Cruiserweight Kick-boxing champion.

[6] When the Plaintiff came to Canada he was qualified as a mining engineer and took employment as a mine mechanic. He ultimately moved to the Sunshine Coast and now operates a mixed martial arts gym there. He also has part-time employment as security in Vancouver acting as a “bouncer”.

[7] On November 11, 2005 the Plaintiff was proceeding west on Water Street. The roads were slick. Some pedestrians crossed the street near the intersection of Water Street and Cambie Street. The car ahead of him stopped for the pedestrians and he also stopped his vehicle.

[8] The Defendant was travelling 15-20 km per hour behind the Plaintiff. He tried to stop his vehicle but when travelling 10-15 km per hour he skidded on the wet tile street and struck the Plaintiff’s vehicle from behind. The impact pushed the Plaintiff’s vehicle forward. Both the Plaintiff and the Defendant estimated that the Plaintiff’s vehicle was jolted five feet forward on impact.

[9] The Defendant saw the vehicles were going to collide and braced for impact. The Defendant was uninjured. The Defendant got out of his vehicle. He went to check on the Plaintiff to see if he was ok. The Defendant said that he was concerned that the Plaintiff might be hurt and wanted to check to see if he needed an ambulance. The Plaintiff said he was ok. The Defendant apologized. The parties politely exchanged information.

[10] Damage to the vehicles involved is minor. The Defendant chose not to have his vehicle repaired. The cost of repairs to the Plaintiff’s vehicle was approximately $1000. The estimated cost of repairs to the Defendant’s vehicle is just over $400, although that is just an estimate as disassembly of the bumper might have uncovered some additional damage. ICBC estimators completed “Low Velocity Impact Claim” forms, and noted there was no damage to the frames of the vehicles.

[11] A couple of days after the MVA, the Plaintiff felt worse. He saw his physician, Dr. D. Rogers, on November 16, 2005. He reported soreness between the shoulder blades, stiffness on neck movements, and headache. All movements of the cervical spine were painful at the extreme range of movement. Power, tone, coordination, reflexes were normal in the upper limbs. Dr. Rogers prescribed Motrin and requisitioned physiotherapy.

[12] The Plaintiff had 11 physiotherapy sessions between November 21, 2005 and January 27, 2006. The Plaintiff saw Dr. Rogers again on January 13, 2006 at which time he again recommended physiotherapy. At his last physiotherapy treatment, he is described as much improved. The Plaintiff stopped by Dr. Roger’s clinic a third time to report that he was doing fine, although he did not see any physician.

[13] Under cross-examination Dr. Rogers was asked whether he saw any objective signs of injury. He said he thought he saw muscle spasm but when referred to his notes there was no mention of muscle spasm. In his medical note of January 13, 2006 prescribing physio, however, there is reference to spasm.

[14] The Plaintiff says that he continued to experience intermittent soreness until June 2006 at which time his symptoms had resolved. Although he did not return to physiotherapy, he did the exercises prescribed on his own. He paid for all of the physiotherapy treatments himself as ICBC declined to pay or reimburse him for these expenses. The Plaintiff claims 11 treatments at $15/treatment.

[15] The Plaintiff claims no wage loss at either his clinic or part time employment. He says he worked through his injuries.

Are there Damages?

[16] The Defendant argues that the Plaintiff has not proven that he suffered damages because of the accident.

[17] The Defendant references Athey v. Leonati, [1996] 3 S.C.R. 458, for the proposition that, with respect to causation, the “but for” test applies, unless it is unworkable, in which case the material contribution test applies. In Resurfice v. Hanke, 2007 SCC 7, the Supreme Court of Canada clarified but confirmed the “but for” test. Of course, where there are several causative factors, the damages payable by the tortfeasor do not include those that may be assigned to other causative factors: Blackwater v. Plint, [2005] 3 S.C.R. 3.

[18] In this case there are no competing theories of causation. That is, there is no evidence before me that some other events occurred that may be causative factors. In this case the main argument of the Defendant is that the damage to the vehicles is so slight that the accident could not have caused the injuries which are only subjectively reported.

[19] In considering whether the severity of the collision could have caused the injuries, the Defendant asks that I consider a series of cases where courts have expressed scepticism that the force of impact could have caused the damages reported, including Price v. Kostryba (1982) 70 B.C.L.R. 397; Yeh v. Ford Credit Canada Ltd. (1996), 25 B.C.L.R. (3d) 318 (S.C.), (1996) Carswell BC 1434; Lago v. Zimmerman, [1997] B.C.J. No. 3096, (1997) CarswellBC 2952; and Nandan v. Ambrosio, 2001 CarswellBC 3087, 2001 WL 1780282 (B.C. Prov. Ct.).

[20] I accept that it is an appropriate inquiry to consider whether the nature and magnitude of the damage to the vehicles is consistent with how a plaintiff describes the collision and his resultant injuries. That said, as Macaulay J. noted in Lubick v. Mei, 2008 BCSC 555, low impact does not mean there is no compensable injury. See also, the decision of Thackray J., as he then was, in Gordon v. Palmer, [1993] B.C.J. No. 474.

[21] The Plaintiff presented as a soft spoken, even stoic and forthright litigant. The Defendant himself recognized that the impact might cause injury, as he inquired immediately following the impact regarding the need for an ambulance. I accept the Defendant’s evidence regarding the impact of the collision. There is no suggestion that he exaggerated concern. I also accept the evidence of the Plaintiff regarding the cause of his injuries and his period of recovery. The motor vehicle accident caused the Plaintiff’s injuries.

Damages

[22] The Plaintiff cited three cases from this court on damages: Dao v. Vance, 2008 BCSC 1092, in which Williams J. awarded the Plaintiff $9,000 for non-pecuniary damages; Lubick, where Macauley J. awarded $18,000 for more serious injuries; and Murray v. Byrd, 2008 BCSC 895 where Brine J. awarded the Plaintiff $12,000 for more serious injuries.

[23] The Defendant cites three cases in which damages were awarded between $1000 and $2000: Vuong v. Wong, 2007 BCPC 172, Snesar v. Black Top Cabs Ltd., 2005 BCPC 393 and Cook v. Webb, 2004 BCSC 453. At least two of those cases involved credibility issues and involve, in my view, situations where there was a faster recovery.

[24] In this case the Plaintiff has proven an injury that required a significant period of physiotherapy, and six or more months of an exercise regime designed to obviate the symptoms. An appropriate award for non-pecuniary damages in this case is, based on the authorities, $7,500.

Mitigation

[25] The Defendant argues that the Plaintiff failed to mitigate his damages. This arises in part because there is a gap in the Plaintiff’s physiotherapy with no visits from December 10, 2005 through January 16, 2006. The irony in this position is that ICBC declined to cover any of these treatments. The Plaintiff did take four more treatments, January 17, 20, 23 and 27, 2006.

[26] The burden of proving that the Plaintiff failed to mitigate his damages rests with the Defendant who asserts this position. In my opinion there is nothing in the evidence before me that shows, on a balance of probabilities, that the Plaintiff’s conduct prolonged or exacerbated his symptoms. During this entire period and thereafter the Plaintiff was undertaking an exercise regime recommended by his physiotherapist.

[27] I find that the Defendant has not shown that the Plaintiff failed to mitigate his damages. The damage award should not therefore be reduced.

Special Damages

[28] I find that the Plaintiff physiotherapy treatments are properly the subject of an award for special damages. The Plaintiff shall have the costs of the physiotherapy treatments reimbursed as special damages.

Costs

[29] The question of costs arises because the monetary award is within the jurisdiction of the Small Claims Court. It was apparent to both parties that prior to the commencement of the action the matter of damages was within the monetary jurisdiction of the Provincial Court.

[30] The Defendant submits that it is appropriate for the Court to apply Rule 57(10) of the Rules of Court to deprive the Plaintiff of his costs. The wording of the Rule requires that the Plaintiff be deprived of costs unless there is “sufficient reason” for bringing the proceeding in Supreme Court.

[31] I was advised that, prior to trial but after pre-trial procedures, the Plaintiff offered to have the matter transferred to Provincial court. The Defendant declined the offer. In my view, it is unnecessary to consider whether this is a relevant factor in awarding costs.

[32] The Plaintiff relies on Reimann v. Aziz, 2007 BCCA 448. In Reimann at the time the action was initiated the maximum jurisdiction in Smalls Claims Court was $10,000. The jurisdiction of the court was subsequently increased to $25,000. The Defendant in that case, as in this, denied liability and denied the Plaintiff had suffered an injury.

[33] After examinations for discovery the Defendant applied to have the matter transferred to Small Claims Court, an application denied because to do so would deprive the Plaintiff of speedy resolution since the action was subject to Rule 66.

[34] At trial the plaintiff was awarded non-pecuniary damages of $4,000, wage loss of $700 and special damages of $720. The Defendant argued that the plaintiff should only be awarded disbursements as costs. The court disagreed, a finding that was not disturbed on appeal.

[35] Prior to Reimann the authorities had indicated that, after commencing an action in Supreme Court, the Plaintiff had an ongoing duty to assess the case and, where appropriate, transfer the case to Provincial Court. The Court of Appeal in Reimann disagreed. There is no ongoing risk occasioned by the Rule. The time at which “sufficient reason” is considered is the time of the commencement of the action.

[36] Mr. Justice Chaisson, writing for the Court in Reimann, noted that several prior Supreme Court decisions had held that plaintiff’s were expected to commence matters in Provincial Court where the value was likely or clearly in the Provincial Court’s monetary jurisdiction. The likely value of the case was the key factor in determining whether there exists “sufficient reason” for bringing the proceeding in Supreme Court.

[37] The earlier cases had emphasized that the policy under the Rule was to encourage claims within the monetary limit being brought in Provincial Court. Chaisson J.A., summarized the previous authorities thus:

[33] Cases which have addressed the policy underlying the approach taken in the trial court include:

The Court must seek to uphold what the rule makers intended, and that was that claims within the ten thousand dollar limit be heard in Small Claims wherever that is the reasonable course.

Asiaee v. Arnold (1993) 87 B.C.L.R. (2d) 393 (S.C.) at para. 5

the "policy" of Rule 57(10), which policy is to encourage claims under $10,000 being brought in Small Claims Court.

Day v. Wilson (1996), 4 C.P.C. (4th) 251 (B.C.S.C., Master)

…Rule 57(10) aims at encouraging claims for under $10,000 being taken in small claims court and penalizes plaintiffs who take such claims in the B.C. Supreme Court.

Martin v. Tom (1996), 27 B.C.L.R. (3d) 268 (S.C.)

The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of $10,000.

Bhanji v. Quezada at para. 9

Given that an application can be brought to move the proceeding to the Small Claims Court, the issue is not only with respect to commencing the action but continuing the claim. The Rule speaks of "bringing the proceeding", not issuing the writ.

Wailia v. Ulmer, 2005 BCSC 601 at para. 15.

[38] These cases, he found, had too narrowly focused on the potential monetary value of the action, excluding other legitimate considerations:

[35] In my view, the approach generally taken by the Supreme Court is too limited. It overemphasizes the policy of encouraging parties to proceed in the Provincial Court, but fails to consider the equally compelling policy consideration that parties are entitled to have respected their legitimate choice of forum. It also ignores judicial pronouncements concerning the phrase “bring an action” and gives insufficient weight to the overall scheme of the legislation.

[36] If there were “sufficient reason for bringing the proceeding in the Supreme Court”, a plaintiff would be entitled to be in that forum. The appellants’ position would have the practical result that for a plaintiff to avoid being penalized in costs, as in this case, the plaintiff must give up the opportunity to take advantage of the pre-trial preparation to which he was entitled and the readiness for trial afforded by the Supreme Court fast-track procedure because it became apparent that the recovery of damages may be within the jurisdiction of the Small Claims Court. This would be so even if, again as in this case, the defendant sought unsuccessfully to transfer the case to the Provincial Court.

[39] The Plaintiff here emphasizes the “opportunity to take advantage of the pre-trial preparation to which [the Plaintiff] was entitled”. In this case liability was denied. Causation was denied. Contributory negligence was alleged. At trial a failure to mitigate was alleged.

[40] In this case the Defendant by denying liability, causation, and reimbursement for special damages, required that the Plaintiff to prove all of these things in court. The Defendant gave important evidence regarding the speed of impact, the consequences of the impact, and concern over the Plaintiff’s condition, which, I am advised, was revealed on discovery.

[41] In my view the position of the Defendant justified the Plaintiff pursuing this case in Supreme Court, where pre-trial discovery is available. A similar determination was made in cases such as Tucker v. Brown, 2008 BCSC 734, Faedo v. Dowell and Wacher, 2007 BCSC 1985, and Kanani v. Misiurna, 2008 BCSC 1274.

[42] There is the additional factor that, as in Faedo and Kanani, the Plaintiff faced an institutional defendant which, in the ordinary course, has counsel. To obtain any recovery the Plaintiff is forced to go to court, where he is facing counsel and counsel is reasonably required, but in Provincial Court there is no way of recovering the costs of counsel.

[43] In the circumstances, the Plaintiff is entitled to costs, pursuant to Rule 66.

“The Honourable Mr. Justice Savage”

Citation:	*Ostovic v. Foggin,*
	2009 BCSC 58