IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Cummings v. 565204 B.C. LTD.,

 

2009 BCSC 1009

Date: 20090727

Docket: M070738

Registry: Vancouver

Between:

Joelle Christine Cummings

Plaintiff

And

565204 B.C. LTD. doing business as Auto Couture, Daewoo Richmond and Daewoo Richmond Financial Services, and John Doe

Defendants

Before: The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Plaintiff:

A.C.R. Parsons

Counsel for the Defendants:

K. Herr

Place and Dates of Trial:

Vancouver, B.C.
May 4–7, 2009

Place and Date of Judgment:

Vancouver, B.C.
July 27, 2009


 

[1]             Joelle Christine Cummings claims damages for injuries she suffered in a single car accident on June 8, 2008. The accident occurred when Ms. Cummings was driving a 2005 Nissan 350Z she had purchased from the defendant, 565204 B.C. Ltd. doing business as Daewoo Richmond (collectively “Daewoo”). Ms. Cummings alleges that the accident occurred because the rear tires of the Nissan lacked sufficient tread to be operated safely, and caused her to lose control of the car. She alleges that Daewoo engaged in a deceptive act or practice in selling a vehicle which had unsafe tires on it, and claims damages against Daewoo pursuant to s. 4 of the Business Practices and Consumer Act, S.B.C. 2004, c. 2 (the “BCPC Act”). As well, Ms. Cummings claims against Daewoo on the basis that Daewoo made negligent misrepresentations about the tires, and was negligent in failing to inspect the tires prior to selling the vehicle. Daewoo denies that it engaged in any deceptive acts or practices, or was negligent as alleged. Daewoo further denies that the rear tires on the Nissan were unsafe when the vehicle was sold to Ms. Cummings. Daewoo alleges that the accident was caused by Ms. Cummings’ negligence in operating the vehicle.

[2]             The issues are:

1.     Is Daewoo liable to Ms. Cummings for selling a vehicle fitted with unsafe rear tires?

2.     Did the tires cause or contribute to the motor vehicle accident and, if so, was Ms. Cummings contributorily negligent?

3.     What, if any, damages is Ms. Cummings entitled to?

BACKGROUND

[3]             Ms. Cummings was referred to Daewoo by a friend, John Markakis, who owns an OK Tire franchise in Calgary, Alberta. Mr. Markakis knew Diven (David) Nair, the Sales Manager at Daewoo.

[4]             Daewoo is in the business of selling late model pre-owned cars. 565204 B.C. Ltd. is now doing business as Auto-Couture rather than Daewoo. Mr. Nair has been with 565204 B.C. Ltd. since 2001. His wife is a director and officer of 565204 B.C. Ltd. Mr. Nair currently works as a buyer for the company and looks after customer relations. In the summer of 2006, Mr. Nair was acting as the manager of Daewoo.

[5]             When Ms. Cummings initially went to Daewoo’s lot, she dealt with Jason Rawlins, a sales representative. She testified that she advised Mr. Rawlins that she wanted to trade in her Volkswagen Jetta and purchase a fun, sporty vehicle. On her first visit to Daewoo there were no vehicles on the lot that interested her. However, a few days later Ms. Cummings went back to Daewoo and Mr. Rawlins showed her the Nissan. She test drove the Nissan on city streets and Highway 99. The roads were dry on the day of the test drive.

[6]             After thinking about the car, Ms. Cummings decided to purchase it and arranged to come to Daewoo on June 1, 2008, to complete the transaction. Ms. Cummings was told to deal with Mr. Nair to negotiate the price of the Nissan and the value of her trade-in.

[7]             While waiting for Mr. Nair, Ms. Cummings walked around the car in the showroom in order to see if there were any small dings or marks on the car. Ms. Cummings says that she noticed that the rear tires were more worn than the front tires. When she went into Mr. Nair’s office, Ms. Cummings asked him about the rear tires. Ms. Cummings’ evidence is that Mr. Nair replied that the car was only a year old and the tires were fine. Her evidence is that Mr. Nair did not go out to look at the tires before telling Ms. Cummings that they were fine.

[8]             Mr. Nair’s evidence is that Ms. Cummings never mentioned the tires to him. He testified that there is no way to look at the car and see whether the rear tires are worn because it is a low slung car, and the tires are covered for the most part by the body.

[9]             Mr. Nair’s evidence is that Mr. Markakis telephoned him and told him that Ms. Cummings wanted to purchase a car. When Ms. Cummings came to Daewoo, she wanted a sports car. Mr. Nair’s evidence is that he did not have a suitable car on the lot so he contacted a broker and arranged for the Nissan to be brought to the lot. The Nissan had been imported from the United States.

[10]         According to Mr. Nair, safety is the number one issue for Daewoo and if they are aware that there is something wrong with a vehicle they do not sell it. In order to be imported into Canada, the vehicle had to pass a series of safety inspections. Mr. Nair’s evidence is that Daewoo relied on the inspections done when the vehicle was imported, and did not perform its own inspection of the vehicle. Mr. Nair testified that he told Ms. Cummings that the vehicle had a factory warranty and that she should take it to Nissan. If the car needed anything under warranty, it would be done free of charge.

[11]         Mr. Rawlins testified that Ms. Cummings advised him that she wanted a sporty, fun car. Daewoo did not have a vehicle for her on the lot, but the Nissan was located and he contacted her the next day. According to Mr. Rawlins, Ms. Cummings test drove the vehicle for about 15 to 20 minutes. She was excited about the car so he had her speak to Mr. Nair. Ms. Cummings did not buy the car the day of the test drive. He does not recall any conversation with Ms. Cummings about the tires.

[12]         Mr. Rawlins was shown a picture of the tires that were on the Nissan at the time of the accident, and agreed that he would not sell a vehicle that had tires that looked like that. The tires that are depicted are worn significantly and have parts where the tread is missing.

[13]         Ms. Cummings owned the Nissan for seven days prior to the accident. The day of the accident was the first day it rained heavily after she purchased the Nissan. Ms. Cummings testified that she may have driven the Nissan in drizzling rain conditions in the days prior to the accident, but she had not driven it in heavy rain conditions. The accident occurred when she was travelling eastbound on Nordel Way in Delta. Ms. Cummings lost control of the vehicle as she drove through a curve when the back end of the vehicle fishtailed to the right. Ms. Cummings’ evidence is that she tried to steer into the turn, as she had learned in driver’s training, but nothing worked. The back end of the Nissan spun into the roadside barrier and the vehicle spun again and the front of the Nissan struck the roadside barrier.

[14]         Ms. Cummings testified that she was travelling at around 60 kph over a highway overpass just before the corner, and had geared down to go into the corner to about 50 kph when the accident occurred.

[15]         Following the collision, Ms. Cummings sat in her vehicle and a young man, who was later identified as Rajesh Sewak, came up to her car and asked if she was all right.

[16]         Mr. Sewak’s evidence is that he was following the Nissan as it was going through the corner on Nordel Way. Mr. Sewak confirmed that it was raining heavily at the time of the accident and there was water on the road surface. He observed the rear end of the Nissan spin out and the back of the car hit the barrier. At the time of the accident, he estimated the Nissan’s speed at 50 – 60 kph based on the speed he was driving. He was about 10 or 12 car lengths behind the Nissan, travelling at around 50 – 60 kph, and the Nissan was not pulling away from his vehicle.

[17]         Ms. Cummings’ evidence is that the collision with the barrier was violent and that she was thrown to the side and then the front. After the accident she had a mark on her shoulder from the seat belt. Ms. Cummings testified that she suffered an injury to her neck and down her spine onto the right side and into the shoulder. Her evidence is that the injuries she suffered in the accident have not fully resolved. The Nissan was not driveable following the accident. The cost of repairs to the Nissan was in excess of $13,000.

ANALYSIS

Liability

Business Practices Act claim

[18]         Ms. Cummings alleges that the defendants are in breach of the BCPC Act. The relevant portions of the BCPC Act provide:

1  (1) In this Act:

“consumer” means an individual, whether in British Columbia or not, who participates in a consumer transaction, but does not include a guarantor;

“supplier” means a person, whether in British Columbia or not, who in the course of business participates in a consumer transaction by

(a) supplying goods or services or real property to a consumer, or

(b) soliciting, offering, advertising or promoting with respect to a transaction referred to in paragraph (a) of the definition of “consumer transaction”,

...

4 (1) In this Division:

“deceptive act or practice” means, in relation to a consumer transaction,

(a) an oral, written, visual, descriptive or other representation by a supplier, or

(b) any conduct by a supplier

that has the capability, tendency or effect of deceiving or misleading a consumer or guarantor;

“representation” includes any term or form of a contract, notice or other document used or relied on by a supplier in connection with a consumer transaction.

(2) A deceptive act or practice by a supplier may occur before, during or after the consumer transaction.

(3) Without limiting subsection (1), one or more of the following constitutes a deceptive act or practice:

(a) a representation by a supplier that goods or services

...

(ii)  are of a particular standard, quality, grade, style or model if they are not,

(iii)  have a particular prior history or usage that they do not have, including a representation that they are new if they are not,

...

 (b) a representation by a supplier

...

(vi)  that uses exaggeration, innuendo or ambiguity about a material fact or that fails to state a material fact, if the effect is misleading,

5  (1) A supplier must not commit or engage in a deceptive act or practice in respect of a consumer transaction.

(2) If it is alleged that a supplier committed or engaged in a deceptive act or practice, the burden of proof that the deceptive act or practice was not committed or engaged in is on the supplier.

171  (1) Subject to subsection (2), if a person, other than a person referred to in paragraphs (a) to (e), has suffered damage or loss due to a contravention of this Act or the regulations, the person who suffered damage or loss may bring an action against a

(a)   supplier,

...

who engaged in or acquiesced in the contravention that caused the damage or loss.

[19]          The Trade Practices Act, R.S.B.C. 1996, c. 457, was the predecessor of the BCPC Act and contained s. 3(1) entitled “Deceptive Acts or Practices”, which is virtually identical to the current s. 4(1) of the BCPC Act. Section 3(1) of the Trade Practices Act, and its predecessor, have been considered by the courts.

[20]         In Rushak v. Henneken (1991), 59 B.C.L.R.(2d) 250 (C.A.), the similar section in the Trade Practices Act was considered. After considering the authorities, Taylor J.A. stated at paras. 23-28:

While it used to be said that what is described in general terms as “puffery” on the part of a salesman does not give rise to legal consequences, I am not satisfied that the same can necessarily be said today in light of the provisions of theTrade Practice Act. “Puffery” cannot, in my view, excuse the giving of an unqualified opinion as to quality when the supplier has factual knowledge indicating that the opinion may in an important respect very well be wrong. Exaggeration or embellishment of qualities which a seller knows to exist may, perhaps, be excused as puffery, and particularly where the potential buyer is in as good a position as the supplier to form an opinion on the matter. That expression cannot, however, so far as the Act is concerned, be used to excuse a laudatory description given with specific factual knowledge not shared by the potential buyer which suggests the goods may, in fact, be in an important respect defective, and not therefore of the quality described at all.

I am of the view that the section must be taken to require that suppliers involved in the defined transactions refrain from any sort of potentially misleading statement, and that this must include an honestly-held opinion given in circumstances in which the supplier knows that giving the opinion without appropriate qualification may mislead. It was not, in my view, open to the defendant to describe the car as “a good vehicle”, “one of the best of its kind” and “very nice”, without appropriate qualification, when he had reason to suspect that there might be extensive rust, and that the rust had been coated over with brushed-on undercoating so as to render it incapable of discovery by ordinary examination.

...

In suggesting that the respondent have the vehicle looked at by others, without saying what sort of examination was needed and when he knew that ordinary visual examination would not be helpful, Mr. Henneken did not, in my view, render the giving of his unqualified opinion no longer misleading.

It seems to me that where a seller has factual evidence gained from inspection suggesting that the thing offered may have a latent defect of great importance to the potential buyer, then to express a commendatory opinion without qualification must be “conduct having the capability of misleading”, within the meaning of the section, because to adopt the words of Mr. Justice Hutcheon, cited above, such a statement must tend to lead the potential purchaser “astray into making an error of judgment”. That the purchaser had the vehicle inspected by others, who could not see the latent defect, and that she failed to have it inspected by the dealer, as suggested by the defendant, cannot, in my view, change the character of the statement made. It was a statement which necessarily ‘downplayed’ the need for such examination, and tended to lead to an error of judgment.

[21]         The deception may be inadvertent. A supplier cannot escape liability if the misleading act or statement leads to the purchaser’s injuries, even if he honestly believes the representations: Mikulas v. Milo European Cars Specialist Ltd. (1993), 52 C.P.R. (3d) 1 (B.C.S.C.).

[22]         In my view, a supplier should not be able to escape liability on the basis that he honestly believed the representations, or that he relied on an inspection done by others, when he is advised of a concern about the vehicle by a purchaser and takes no steps to discover whether the representation is true, and the purchaser is misled by the representation.

[23]         Section 171 allows a plaintiff to recover from the supplier damages resulting from a deceptive act:  Findlay v. Couldwell [1976], 69 D.L.R. (3d) 320 (B.C.S.C.).

[24]         In this case, it is alleged that Daewoo engaged in a deceptive act or practice when Mr. Nair made a representation at the time the Nissan was sold to Ms. Cummings that the rear tires were fine when, in fact, they were not.

[25]         Given the allegation, s. 5 of the BCPC Act shifts the burden to Daewoo, as the supplier, to show either that it did not make the representation alleged, or that the representation that was made was true, i.e. the rear tires were fine at the time the Nissan was sold.

[26]         There is contradictory evidence as to whether Ms. Cummings asked Mr. Nair about the tires. I accept Ms. Cummings’ version of events. I do not accept Mr. Nair’s evidence that he did not discuss the tires with Ms. Cummings. It is much more likely that Ms. Cummings would have a better recollection of a conversation she had about purchasing the car than Mr. Nair, whose memory of the details of any conversations he had with Ms. Cummings were vague at best. I accept that Mr. Nair represented that the rear tires were fine as the Nissan was only a year old, without checking to see if that representation was correct.

[27]         Daewoo takes the position that it was under no obligation to take any steps to inspect the tires after Ms. Cummings expressed her concern about them to Mr. Nair. Daewoo argues that Ms. Cummings should have done her own inspection of the vehicle. However, Ms. Cummings was relatively naive about automobiles and was relying on the fact that she was purchasing a nearly new automobile from a dealership. In my view, Ms. Cummings was entitled to rely on the representations made by Mr. Nair about the tires.

[28]         Having found that Daewoo made the representation alleged, the next issue to be considered is whether or not the representation was true. Daewoo did not lead any evidence to prove that the condition of the rear tires was fine at the time the car was sold to Ms. Cummings. The plaintiff’s evidence is that the tires were worn past the wear bars, and had to be replaced before the body shop that repaired the car would release it. Mr. Rawlins, who was examined for discovery as an authorized representative for Daewoo, admitted that he would not sell a Nissan 350Z that had tires that were as worn as the rear tires of the Nissan he sold to Ms. Cummings.

[29]         Ross Chonn, the mechanic who conducted the inspection of the Nissan prior to its sale to Ms. Cummings, testified that he completed a government designated inspection report for the vehicle on May 31, 2007. He checked the pass box beside tires. His evidence is that he checks the tires to ensure that they have 1/32nd of an inch of tread prior to passing the tires. Mr. Chonn’s evidence is that the tires shown in the pictures of the rear tires of the Nissan would pass his safety inspection, and he does not look at wear bars but only the depth of the tread. Mr. Chonn testified that if the tread of a tire does not meet the minimum requirement, i.e. 1/32nd of an inch, it is acceptable to cut the tire with a knife to deepen the tread in order to obtain the correct measurement. He testified that he did not cut the Nissan’s rear tires in order to obtain the minimum measurements required to check the pass box on the inspection report.

[30]         Mr. Chonn’s opinion about whether the tires should have been passed is contradicted by the evidence of other witnesses who testified that the tires were worn and should have been replaced.

[31]         George Estachio, the manager of Craftsman Collision where the Nissan was repaired after the accident, testified. Mr. Estachio’s evidence is that he advised Ms. Cummings that the rear tires were worn and that he would not put them back on the car. He told Ms. Cummings that the tires were unsafe, and that before he would release the Nissan she would have to purchase new tires for him to install. Mr. Estachio testified that the rear tires were well past the wear bars that indicate when a tire has to be replaced. The inside of the tire was more worn than the outside. Ms. Cummings purchased new tires and Craftsman Collision installed them.

[32]         Donald Rempel, an engineer with expertise in accident reconstruction, testified that in his opinion the rear tires were worn out. He measured the tread depth and concluded that rear tires should have been replaced as the wear bars on the tires were showing. The wear bars are intended to give someone a quick visual indication that the tires need to be replaced. In his opinion, the tires fitted to the rear of the Nissan constituted a dangerous mechanical condition rendering the vehicle unsuitable for use on wet roads.

[33]         Len Haffenden, an expert in appraisal of used vehicles and accelerated depreciation, testified that in his opinion the rear tires of the Nissan were worn beyond a safe level of use.

[34]         Although Daewoo asserts that Ms. Cummings has failed to establish the condition of the tires at the time she purchased the vehicle, the onus is on Daewoo to establish that the tires were not in the same worn condition at the date the Nissan was sold that they were in at the time of the accident, one week later. Daewoo argues that the wear may have occurred in the week prior to the accident.

[35]         Daewoo’s evidence is that the tires that were on the Nissan would have satisfied the inspection conducted by Mr. Chonn. However, Daewoo admits that they would not have sold a vehicle with tires in that condition. As stated above, Mr. Rawlins agreed that he would not sell a vehicle that had tires on it with the amount of wear shown on the tires in the picture.

[36]         Daewoo did not adduce any evidence that rear tires of the Nissan could become worn in a week. The plaintiff relies on the evidence of Mr. Haffenden who testified that the tires on the Nissan were good quality tires which should last 40,000 to 50,000 kilometres. The Nissan had just over 15,000 kilometres at the time of the accident. Mr. Haffenden noted a significant difference between the tires on the rear and front of the car. In his opinion, the rear tires would not become that worn in a week.

[37]         Having reviewed the evidence, I accept that the tires were defective at the time the Nissan was sold to Ms. Cummings. As a result, I have concluded that Daewoo engaged in a deceptive act within the meaning of the BCPC Act, and that Ms. Cummings is entitled to damages pursuant to s. 171 of that Act.

Tort Claim – Negligent Misrepresentation

[38]         A vendor of a vehicle owes a duty of care to a purchaser. If the vendor makes a negligent misrepresentation that is relied upon by a purchaser, the vendor is bound to compensate the purchaser based on the relationship:  Robillard v. Comox Valley Ford Sales (1964) Ltd. (1995), 3 B.C.L.R. (3d) 374 (C.A.).

[39]         In my view, Ms. Cummings was entitled to rely on the representations made by Mr. Nair regarding the condition of the tires. I accept Ms. Cummings’ evidence that she relied on Mr. Nair’s representation. Daewoo should have anticipated reasonable reliance on statements made by its manager, Mr. Nair. Both Daewoo and Mr. Nair owed Ms. Cummings a duty of care in making statements regarding the condition of the vehicle. Ms. Cummings’ reliance was clearly to her detriment, given the losses she suffered as a result of the accident.

[40]         In the circumstances, I am of the view that Mr. Nair was negligent in representing the tires as fine, when they were excessively worn and needed to be replaced. Accordingly, Daewoo is liable to Ms. Cummings for negligent misrepresentation in regard to the rear tires.

Contributory Negligence

[41]         Daewoo takes the position that Ms. Cummings has not established that the condition of the rear tires caused the accident. Daewoo relies on the opinion of Mr. Toor, an expert in accident reconstruction, in asserting that the accident was caused by Ms. Cummings driving at an excessive speed.

[42]         Mr. Toor’s opinion is that Ms. Cummings was travelling at 75 kph or more at the time of the accident based on the calculations he performed. One of the factors which he acknowledged was difficult to determine was the amount of water on the road at the time of the accident. Mr. Toor’s opinion is based, in part, on his assumption that even though it was raining hard it was unlikely there was any standing water on the roadway. Mr. Toor concedes that the tire tread on the rear tires was considerably worn. Mr. Toor acknowledged that if Ms. Cummings was travelling at 60 kph or less and the back end of her vehicle swung to the right, then the loss of control was due to a loss of friction of the rear tires due to the reduced tread on the tires and water on the road.

[43]         Mr. Rempel’s opinion is that the condition of the rear tires caused the accident. The longitudinal grooves were no longer in existence on the rear tires that were on the Nissan at the time of the accident. The longitudinal grooves provide channels for water to move from beneath the tire in order for the tire to maintain contact with the road. On a tire with good tread there are lots of channels to get water out so that the flat areas of the tire maintain contact with the road. In Mr. Rempel’s opinion the rear tires of the Nissan lost traction and the rear end started to spin out as a result of insufficient tread.

[44]         Mr. Rempel’s opinion is consistent with the evidence of the independent witness, Mr. Sewak. Mr. Sewak testified that he observed the rear end of the Nissan spin out and the back of the vehicle hit the barrier. As well, Mr. Sewak testified that Ms. Cummings’ speed at the time the rear end of the vehicle spun out was approximately 50 to 60 kph. Mr. Sewak’s evidence is that it was raining extremely hard at the time of the accident. Mr. Sewak’s evidence in that regard is consistent with Ms. Cummings’ evidence that it was raining extremely hard and that she was travelling at approximately 50 kph at the time the accident occurred.

[45]         Having considered all of the evidence, I have concluded that Mr. Rempel’s opinion should be preferred over Mr. Toor’s opinion as it is consistent with the evidence of the independent witness. I have concluded that the accident was caused by a loss of friction due to the wear on the rear tires of the vehicle, and that Daewoo has failed to establish that Ms. Cummings’ operation of the vehicle either caused or contributed to the accident.

Damages

Non-pecuniary Damages

[46]         Ms. Cummings was diagnosed with soft tissue injuries to her neck and shoulder girdle following the accident. Her neck area had been injured in two motor vehicle accidents prior to the accident of June 2006. According to Ms. Cummings she had not been having ongoing problems, apart from occasional tightness in her neck area, prior to the June 2005 accident. As well, the injury she sustained in the June 2006 accident was different than the injury she sustained in the earlier motor vehicle accident. Ms. Cummings’ evidence in that regard was confirmed by Dr. Atkinson, her family doctor.

[47]         While Ms. Cummings was recovering from the injuries she sustained in the accident, she was involved in another motor vehicle accident on January 15, 2007. Following the January 2007 accident, Ms. Cummings was advised to continue with physiotherapy.

[48]         As stated earlier, Ms. Cummings had a history of prior soft tissue injuries to her neck. However, she had not been seen by her doctor, Dr. Atkinson, for more than a year prior to the June 8, 2006 motor vehicle accident. In Dr. Atkinson’s opinion, Ms. Cummings had not recovered from the injuries sustained in the June 2006 accident when she was re-injured in the accident of January 15, 2007.

[49]         Dr. Atkinson’s opinion is that Ms. Cummings has experienced significant partial disability as she has persisting pain and discomfort. Dr. Atkinson is of the view that Ms. Cummings requires a structured exercise rehabilitation program tailored to her needs in order to recover. The program should be of several months’ duration and thereafter, she requires a gym membership with access to a kinesiologist or personal trainer in order to modify her progress and make adjustments. Dr. Atkinson’s opinion is that the prognosis for full recovery is good if Ms. Cummings has access to the program she outlines in her report. Otherwise, Ms. Cummings’ prognosis is less sure as her symptoms have persisted, and she has had a number of neck injuries in the past.

[50]         Ms. Cummings’ evidence is that prior to the accident she had no ongoing symptoms from her neck. Immediately following the June 2006 accident, she had trouble getting out of bed and tying her shoes. She still suffers from some ongoing stiffness, pain and discomfort in her neck. She continues to be plagued with “flare ups” or severe pain in her neck from time to time. As time has progressed, Ms. Cummings was able to go for longer periods of time without having a flare up.

[51]         Prior to the June 2006 accident, Ms. Cummings was very physically active. She has not been able to return to some of her pre-accident activities such as kick boxing, though she has been able to return to a modified form of cardio boot camp. Although Daewoo took the position that the physical exercise in which Ms. Cummings is participating may be exacerbating her condition, Dr. Atkinson is aware of Ms. Cummings’ physical regime and is of the opinion that staying as active as possible is the best thing for Ms. Cummings’ neck and shoulder.

[52]         Terry Cochrane, Ms. Cummings’ boyfriend, testified regarding the difference in Ms. Cummings’ activity level before and after the June 2006 accident, and confirmed that Ms. Cummings has not been able to return to the activities she was doing prior to the June 2006 accident.

[53]         It is apparent from the evidence that Ms. Cummings suffered a mild to moderate soft tissue injury to her neck, back and shoulder girdle. Her injuries had not completely resolved by January 2007, approximately six months after the accident, when she was re-injured in a second motor vehicle accident. She complains that she is still suffering from flare ups, although the time period between flare ups is increasing.

[54]         According to Ms. Cummings, the second accident was a very minor rear end collision which caused approximately $1,200 damage to the Nissan. However, it did flare up the neck symptoms she had been suffering since the June 2006 motor vehicle accident.

[55]         Although Daewoo argues that Ms. Cummings was suffering from ongoing neck problems at the time of the June 2006 accident, the evidence does not support that contention. The uncontradicted evidence of both Ms. Cummings and Dr. Atkinson is that Ms. Cummings had recovered from the earlier neck injuries she had suffered by the time of the June 2006 motor vehicle accident. As well, the evidence is that injury she sustained in the June 2006 accident affected an area of her neck and her shoulder girdle which had not been previously injured.

[56]         Ms. Cummings and Daewoo have provided me with a number of cases to assist in determining the appropriate award for pain and suffering.

[57]         Ms. Cummings submits that an award of general damages of $45,000 to $55,000 is appropriate based on the evidence and the case law. Daewoo submits that the authorities support a global award for general damages of $9,000, and that $2,500 is the appropriate award for the injuries Ms. Cummings sustained in the June 2006 accident. I have considered the authorities presented by the parties. As with most cases, there are aspects of other decisions which are helpful, but they also have features which distinguish them from this case.

[58]         Having considered the nature and extent of the injuries, the fact that her symptoms have not completely resolved and she still has flare ups three years post accident, and the cases presented by counsel, I am of the view that the appropriate award for non-pecuniary damages is $25,000.

Special Damages

[59]         Ms. Cummings is claiming $2,600 for special damages. Although Daewoo takes issue with the fact that she bought four tires when the front tires were still in good condition, Ms. Cummings’ evidence is that she was advised that all the tires had to be replaced.

[60]         As a result, I have concluded that Ms. Cummings is entitled to the amount of $2,600 for special damages.

Cost of Future Care

[61]         Ms. Cummings is claiming for the cost of the kinesiologist recommended by Dr. Atkinson. The cost of future care award is not a precise accounting exercise to determine the strict minimum required by the plaintiff:  Strachan (Guardian ad litem of) v. Reynolds, 2006 BCSC 362, 39 C.C.L.T. (3d) 79.

[62]         I accept Dr. Atkinson’s opinion that the exercise program would increase Ms. Cummings’ chance of fully recovering from the injuries sustained in the accident. Accordingly, I am awarding $3,500 under this head of damages.

Apportionment Between the Two Accidents

[63]         Daewoo takes the position that the ongoing problems that Ms. Cummings is suffering are as a result of the second accident, and that any damage award for the June 2006 motor vehicle accident should be restricted to the time up to the second motor vehicle accident. Ms. Cummings settled her claim arising out of the second motor vehicle accident a week before the trial of this action. As well, Daewoo argues that Ms. Cummings should not be entitled to the costs of any treatments after the motor vehicle accident in January 2007.

[64]         However, as noted earlier, the second motor vehicle accident was a low velocity rear-end collision. The uncontradicted evidence is that Ms. Cummings had not fully recovered at the time of the second accident. Dr. Atkinson’s evidence is that at the time of January 2007 accident, Ms. Cummings was susceptible to injury due to her injuries from the June 2006 accident, that the January 2007 accident aggravated and exacerbated her injuries from that accident, and that the June 2006 accident is the major cause of the symptoms for which the ongoing treatment is required.

[65]         In Ashcroft v. Dhaliwal, 2007 BCSC 533, 71 B.C.L.R. (4th) 234, Shaw J. discussed the two approaches to apportioning damages between two accidents. One approach, taken from Athey v. Leonati, [1996] 3 S.C.R. 458, considers the situation where multiple ortuous causes result in an indivisible injury. The other approach, taken from Long v. Theissen (1968), 65 W.W.R. 577 (B.C.C.A.), considers the situation where a plaintiff has overlapping divisible injuries resulting from multiple ortuous causes.

[66]         I have concluded that in this case the injuries and consequences resulting from the two accidents are indivisible based on the evidence that Ms. Cummings had not recovered from the injuries sustained in the June 2006 accident at the time of the 2007 accident, that the injuries of the June 2006 accident made her more vulnerable to injury in the second accident, and that the accident exacerbated and aggravated her pre-existing injuries.

[67]         Having concluded that Daewoo is liable, and that on the facts of this case the second accident is not a basis for limiting Daewoo’s liability, the issue of double recovery is raised because Ms. Cummings already received a settlement for the second accident.

[68]         It is a fundamental principle of tort law that a plaintiff should be compensated for the full of amount of her loss but no more, and is not entitled to turn her injury into a windfall:  Ratych v. Bloomer, [1990] 1 S.C.R. 940. In order to prevent double recovery, the amount the plaintiff received for damages in the settlement of the second accident must be deducted:  Ashcroft.

[69]         Accordingly, any amount Ms. Cummings received for damages in the settlement of the second action should be deducted from the damage award for personal injury.

Accelerated depreciation

[70]         Ms. Cummings is claiming the amount of $7,600 for accelerated depreciation of the Nissan due to the damage it sustained in the accident. For the following reasons, I have concluded that an award in that amount for accelerated depreciation is appropriate.

[71]         The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.

[72]         Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73]         It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.

CONCLUSION

[74]         Daewoo is liable to Ms. Cummings for the injuries she sustained as a result of the June 2006 accident in the following amounts:

General Damages

$25,000

Special Damages

$ 2,600

Cost of Future Care

$ 3,500

Total

$31,100

[75]         As set about above, the amount Ms. Cummings received in damages in the settlement of January 2007 accident should be deducted from the award for her injuries.

[76]         As well, Daewoo is liable to Ms. Cummings for the loss she sustained in accelerated depreciation of the Nissan in the amount of $7,600.

[77]         Ms. Cummings is entitled to her costs of this action at Scale B.

“Gerow J.”