IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Chahal v. Righele,

 

2014 BCSC 1086

Date: 20140617

Docket: M120475

Registry:
Vancouver

Between:

Kulwant Chahal

Plaintiff

And

Reno Righele

Defendant

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

Counsel for the Plaintiff:

T. Pettit

Counsel for the Defendant:

L. J. Mackoff
F. Mohamed

Place and Date of Trial:

Vancouver, B.C.

April 7 – 11, 2014

Place and Date of Judgment:

Vancouver, B.C.

June 17, 2014



 

A.       Liability

[1]            
This is an action for damages for injuries suffered in a motor vehicle
accident for which liability is denied.

[2]            
On April 29, 2010 the plaintiff was injured when her car struck a car
driven by the defendant which had turned left across an intersection through
which the plaintiff’s vehicle was traveling.  The defendant denies he was at
fault and alleges the plaintiff was traveling too fast in the circumstances. 
For the reasons that follow I disagree.

[3]            
The accident happened at Kingsway and Boundary Road in Vancouver during
the morning rush hour.  The defendant was driving eastbound on Kingsway in a
large older model station wagon.  He was intending to turn left to go north on
Boundary Road.  The plaintiff was westbound on Kingsway in the curb lane
intending to continue through the intersection.  The defendant travelled into a
dedicated left turn lane and the light for him was green.  The defendant stopped
his vehicle and waited for a break in the oncoming traffic.  He saw a westbound
pickup truck about 70 to 80 yards to the east of the intersection.  He
testified it was the closest westbound vehicle to the intersection.  He accelerated
to go north and while still in the intersection facing approximately north his
vehicle was struck over its right rear wheel by the plaintiff’s vehicle.  The
defendant had not seen the plaintiff’s vehicle before the collision.

[4]            
The plaintiff testified that she approached the intersection in the westbound
curb lane with two lanes to her left in which the traffic was moving slowly.  She
testified she was traveling at about 50 km per hour.  The light for her was
green.  She entered the intersection and did not see the defendant’s vehicle
until it was immediately in front of her traveling from her left.  She
testified she had no time to brake to avoid the collision.

[5]            
A witness, Mr. Nguyen, was a pedestrian on the north sidewalk of
Kingsway on his way to his work place which was a short distance to the east of
Boundary Road on Kingsway.  He did not see the defendant’s vehicle making its
left turn because the intersection was behind him but saw the plaintiff’s
vehicle as it approached the intersection from the east.  Mr. Nguyen was
walking with his back to the intersection and was not paying attention to the
traffic lights but believed, because he had already walked across the
intersection, that the light had changed to red for east and westbound
traffic.  When he saw the plaintiff’s vehicle he concluded it was traveling too
fast because it was approaching what he thought was a red light.  Mr. Nguyen
agreed in cross-examination that if the light was green for the plaintiff’s
vehicle it was not traveling too fast.  He heard a sound which he attributed to
tires skidding on pavement.  He did not see any vehicle from which the sound
came.  He heard the collision but did not see it.

[6]            
Another witness Mr. Hon, like the plaintiff, was driving westbound
on Kingsway approaching the intersection with Boundary Road.  He testified he
was traveling at about 55 km per hour in the middle of these lanes.  When he
was about three or perhaps four car lengths from the intersection he saw the
plaintiff’s vehicle in his mirrors.  The plaintiff’s vehicle overtook Mr. Hon’s
vehicle and he estimated her speed at 70 to 75 km per hour.  The plaintiff’s
vehicle was traveling in a lane to the right of Mr. Hon’s vehicle and
there were no vehicles between the plaintiff and the intersection when
Mr. Hon saw her vehicle overtaking his.  When Mr. Hon saw the
plaintiff’s vehicle the light was green for westbound traffic.  Simultaneously
Mr. Hon saw the defendant’s vehicle turning left to go north on Boundary
Road.

[7]            
In a statement given to an adjuster shortly after the accident,
Mr. Hon described the left turning car as “going fast”.  At the trial he
accepted that observation was correct.  In the statement he also said that “as
soon as I saw the other car making a left turn [the plaintiff’s vehicle] hit
the back passenger side of the left turning car”.  I have no reason to conclude
Mr. Hon was incorrect in his observations of the defendant’s vehicle.

[8]            
I find the defendant’s vehicle was 15 to 20 meters from entering the
intersection when the defendant began his turn.  The defendant’s vehicle needed
to accelerate from a standstill across 3 lanes of travel to clear the intersection
for westbound traffic.  He did not have enough time to do so, particularly in a
large vehicle.

[9]            
Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
provides:

When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard

[10]        
The defendant did not yield the right of way.  The explanation is that
he did not see the plaintiff’s vehicle even though it was there to be seen.  A
left turning driver who does not see a vehicle approaching an intersection from
the opposite direction so closely that it presents a hazard is not driving with
reasonable care.  Absent fault on the part of the approaching driver, the left
turning driver will be found solely responsible for a subsequent collision.

[11]        
The defendant submits the plaintiff was traveling too fast.  The
plaintiff’s evidence is that she was traveling about 40 to 50 km per hour. 
Mr. Hon’s evidence suggests otherwise but I am not satisfied his estimate
of the plaintiff’s speed is accurate.  Mr. Nguyen accepted the plaintiff’s
vehicle was not traveling too fast if the light was green for her, which I find
it was.  Mr. Hon’s ability to estimate the speed of a vehicle coming from
behind him may have been distorted by observing it only in his mirrors.  Even
if the plaintiff was traveling slightly beyond the speed limit, which I do not
find, the cause of the collision was the defendant’s decision to turn left
across the path of the plaintiff’s vehicle without seeing it.  But for that
imprudent decision the accident would not have happened.  I find no fault on
the plaintiff for the collision.

B.       The Plaintiff’s Injuries

[12]        
The plaintiff is 46 years old.  Prior to the accident she had no health
difficulties.  She was physically active without being particularly
athletically inclined.  She has never married.  Prior to the accident her life
was focused on her work as a long serving employee of the Insurance Corporation
of British Columbia (“ICBC”). She was also considerably involved in social
events with family and friends.  Her parents live in Abbotsford and it is
customary for her family, including a number of nephews and nieces, to gather
at their home on weekends.  Apart from that her life has been absorbed with her
work, into which she put a great deal of energy.

[13]        
The plaintiff has never had a regular family doctor and unfortunately
despite efforts to obtain one following the accident she has not been able to
do so.  She has seen various physicians at walk in clinics for the injuries
that she experienced.  The medical evidence before me suggests that a family
physician could manage the plaintiff’s care better if that physician had
regular contact with her.  The absence of a family physician presents the
unusual feature on a personal injury trial that there is no evidence from a
treating physician.

[14]        
Following the accident the plaintiff began to experience pain and
stiffness in her neck.  Pain began to develop in her left shoulder and into her
upper and lower back and left buttock.  She developed serious headaches.  The
injuries were superimposed on pre-existing asymptomatic degenerative changes in
her cervical spine.

[15]        
Prior to the accident the plaintiff had no difficulty sleeping.  Since
the accident she has had to resort to medications and on some occasions she has
taken wine along with her medications in an attempt to sleep.  She now uses
magnesium sulfate but still finds she has no more than four hours of continuous
sleep and sometimes less.  As a result she often feels exhausted.  The
plaintiff now suffers from a major depressive disorder which was not being
treated in any effective way in the years since the accident.

[16]        
The medical opinions are largely in agreement that the plaintiff’s
physical symptoms are not likely to improve.  She has chronic pain throughout
much of her back as well as headaches.  The medical opinions also share the
view that although the pain cannot be entirely resolved it may be possible to
alleviate it and permit the plaintiff to function at a higher level than is now
the case.  This may be achieved in part by improving her mood, and by assisting
her to overcome her sleep disorder.  The plaintiff has had four sessions with a
counsellor for her sleep problems but they have not resolved.  The medical
evidence is that she should be seen by a psychiatrist to determine the
medications that may be beneficial to improve her mood generally and overcome
the depressive disorder.

[17]        
The plaintiff has not had the therapies that could optimize her
recovery.  Dr. William Koch, a clinical psychologist describes the
plaintiff as suffering from a somatic symptom disorder with related pain, a
major depressive disorder, post-traumatic stress disorder and a panic disorder
with agoraphobia.  None of these symptoms have received adequate attention in
the last four years.  This is at least partly attributable to the absence of a
family physician who could manage her case.

[18]        
Prior to the accident the plaintiff enjoyed an active social life mainly
through her family outings in Abbotsford.  However, since the accident her
participation in these and other events has been difficult for the plaintiff. 
Her social life has become substantially less than what it was before.

C.       The Plaintiff’s Employment

[19]        
The plaintiff is a valued employee of ICBC.  She has sustained a high
level of involvement with her work by minimizing all other activities.  She
began her employment with ICBC in 1994 as an office assistant and progressed to
becoming a bodily injury adjuster in 2008.  She has consistently received very
high performance reviews and they have continued to be high even since the
accident.  Prior to the accident, her review for the first quarter of 2010
compliments her for her willingness to help when a co-worker was ill and she is
described as “never late” and “little dynamo”.  Her present manager who
testified at the trial would recommend her for a promotion to a litigation
manager position.

[20]        
Jodi Fischer, an occupational therapist, conducted a functional capacity
evaluation of the plaintiff which is consistent with the evidence generally. I
accept Ms. Fischer’s opinions as accurate:

Ms. Chahal has worked at ICBC for the past 18 years. 
For the past 6 years, she has worked as in Injury Adjuster.  She had some time
off after her motor vehicle [accident], and eventually resumed her pre-accident
job and full time hours within approximately 6-7 weeks.  She is currently
working full time.  Physically, her job involved primarily sitting, with
frequent telephone and computer use.  She does a combination of writing and
typing.  She makes handwritten notes when speaking with people on the phone,
and then inputs information onto the computer after each phone call.

Ms. Chahal stated that does not always have the flexibility
to get up from her desk and take a stretch break when she wants to as there are
calls coming in regularly, stringent time deadlines for work completion, and
she needs to respond to administrative staff requests.

During her Functional Capacity Evaluation, Ms. Chahal
presented with generally slow movement patterns related to her neck, mid back,
and lower back function, and reduced sitting tolerance in association with
tasks involving prolonged looking down and static upper limb postures (computer
use).  Her productivity declined when she was engaged in tasks involving these
physical demands over prolonged periods.  As her testing day progressed, there
was also a general decline in her neck/upper back and lower back
musculoskeletal function.

Ms. Chahal stated that she is able to perform her job as an
Injury Adjuster for ICBC, although when she arrives home from work she is
unable to do little else due to increased pain and fatigue.  Late day test
finding of functional decline corroborated her subjective reports.  Overall,
such findings indicate that she is performing her job more out of perseverance
than full physical suitability.  She is better suited to part time work of
approximately 30 hours per week.  Working a shortened work day will allow her
more recovery time, and the opportunity to participate in non-work related
activities such as making cooked meals for herself, and exercising.

Given Ms. Chahal’s reduced
physical tolerance, she would have difficulty taking on a job that involves
more responsibility and meeting more time sensitive deadlines.  Ms. Chahal
stated that not applying for higher level positions at ICBC in the litigation
department will affect her career advancement and the opportunity to earn a
higher salary.

[21]        
The plaintiff has been ambitious and intensely conscientious at her
work.  She remains conscientious despite her injuries and drives herself to
perform at a high level but inevitably that is at the sacrifice of other
aspects of her life that previously gave her pleasure.  She is no less
ambitious having come to terms with the limitations imposed by her injuries.

D.       Damages

(i) Loss of capacity

[22]        
There is a real and substantial prospect that the plaintiff’s capacity
to earn an income in the future has been diminished.  The plaintiff has a high
school education.  There is no real possibility she could replace her income
from ICBC with other work more suitable to her present disabilities.  Her
difficulties at work are caused by prolonged sitting and the posture imposed by
the use of a computer screen.  ICBC has done much to ameliorate the
difficulties being experienced by the plaintiff but those difficulties none the
less remain.  As the plaintiff ages with continuing chronic back pain, neck
pain and headaches I expect her working day will become increasingly
troublesome.

[23]        
But for the accident the plaintiff would probably have worked until age
65.  Her work schedule requires her to attend approximately 70 hours every 2
weeks and she is earning an income of about $70,000 per annum.  There was a
reasonable prospect that she would have been promoted if she had not had the
accident but in my view that prospect is now probably gone.  Mark Gosling, an
economic consultant, calculated the present value of her future earnings to age
65 with adjustments for the risk of disability and unemployment from causes
other than the accident.  He concluded but for the accident, the earnings would
have been $999,927.  I do not expect the plaintiff will maintain full time
employment with ICBC until age 65 and when she can no longer continue with that
work I do not expect her to find employment elsewhere.  I do not think it is
likely she will be promoted to the position of litigation adjuster or examiner despite
her initial ambition.  She may, with more effective therapies, sustain her
present employment on a part-time basis or may sustain it full time, but retire
early.  Mr. Gosling puts the potential loss in the future depending on the
plaintiff’s retirement date at between $199,358 and $236,073.  The defendant
does not offer evidence of an alternative opinion.

[24]        
The plaintiff is a very determined woman and despite her injuries I
expect that she will carry on working, which is her major source of
satisfaction, for as long as she finds it physically manageable.  The plaintiff
submits that I should assess the loss of earning capacity at $150,000.  I agree
that sum is reasonable.

(ii) Cost of future care

[25]        
The plaintiff claims $62,014 as the present value of the cost of future
care.  This sum of money is based on the evidence of the need in the future for
pain medication, chiropractic and massage therapy, kinesiology and
physiotherapy services, psychological counseling, an ergonomic assessment of
her place of work and household services.  The plaintiff needs to have a family
physician to monitor her care.  That, together with the advice of a
psychiatrist, and perhaps other experts may have some prospect for ameliorating
her condition.  I will not attempt to predict if she can find a family
physician, but I expect she can obtain a referral to a psychiatrist.  I reach
the following conclusions on the cost of future care on the basis that some
pain may be alleviated and her depressive disorder managed:

a)    I assess her
future medication costs at $2,000.  Ms. Fischer recommends prescription
analgesics as do the physicians who have assessed the plaintiff and her
evidence is that she also purchases over the counter medications.

b)    I assess the
cost of future massage and chiropractic services at $9,000.  A larger number
has been urged on me by the plaintiff but Dr. Crossman, a physiatrist,
whose opinions I find persuasive, is in favour of continuing passive therapies
and recommends the plaintiff’s use of them be gradually diminished.

c)     The
plaintiff needs to exercise.  She is apparently concerned she may be reinjured
if she does so.  The evidence is that this concern is not valid.  The plaintiff
claims $6,500 for kinesiology and physiotherapy into the future and I agree
this is reasonable and takes into account that passive physiotherapy will not provide
adequate ongoing benefits.

d)    Ms. Fischer,
Dr. Koch and Dr. Crossman all recommend psychological counseling to
be undertaken as soon as possible.  Dr. Koch recommends 50 hours of
counseling each of which will cost $185.  I agree this is a reasonable cost and
I award $9,250 in that regard.  There is no need to reduce it to a present
value.

e)    The plaintiff’s
employer has cooperated with ergonomic changes to the plaintiff’s work station
and I make no award for the plaintiff to have an independent assessment.

f)      Whereas
the evidence suggests that she was once meticulous in that regard the plaintiff
has neglected housekeeping at her home since the accident.  Ms. Fischer
recommends two hours of housekeeping each week.  This is not for the remainder
of the plaintiff’s life but only so long as she would likely be doing her own
housekeeping even if she had not been injured.  Mr. Gosling gives a
present value of the future cost of housekeeping at $25,648.  I agree this is a
reasonable number and I assess that cost at $25,000.

[26]        
The plaintiff makes no past income loss claim.  Special damages are
agreed at $5,717.21.

(iii)) Non-pecuniary general damages

[27]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 45 Madam Justice
Kirkpatrick wrote:

[45] Before embarking on that task, I think it is instructive
to reiterate the underlying purpose of non-pecuniary damages. Much, of course,
has been said about this topic. However, given the not-infrequent inclination
by lawyers and judges to compare only injuries, the following passage from Lindal
v. Lindal, supra
, at 637 is a helpful reminder:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular
situation
. It therefore will not follow that in considering what part of
the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury
" (Cooper-Stephenson and Saunders, Personal Injury
Damages in Canada
(1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual
case
" (Thornton at p. 284 of S.C.R.).

[Emphasis in original.]

[28]        
At para. 46 in Stapley the “inexhaustive
list of common factors” influencing an award of non-pecuniary general damages
is given as follows:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton
, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[29]        
The plaintiff relies on the following authorities:

a)    Eccleston v.
Dresen
, 2009 BCSC 332.  In that case there was an award of $120,000.  The
43 year old plaintiff had experienced constant and debilitating pain for six
years.  Barrow J. concluded it was likely to remain “almost completely debilitating
for her”.

b)    Marois v.
Pelech
, 2007 BCSC 1969.  A 49 year old plaintiff alleged chronic plain with
anxiety and depression.  The court awarded $130,000 for non-pecuniary damages. 
The plaintiff “lived a full and busy life” which had been “lost over the last
six years” and would be “impacted in the future” although she “appears to be
improving”.

c)     Ashcroft
v. Dhaliwal
, 2007 BCSC 533.  A plaintiff in her 50s suffered from neck and
back pain caused by soft tissue injuries.  The pain was chronic and the plaintiff
was suffering from both depression and post-traumatic stress disorder.  Her
life had “changed drastically for the worse”.  The court awarded $120,000 for
non-pecuniary general damages.

[30]        
The defendant relies on:

a)    Badyal v.
Sidhu
, 2006 BCSC 1877, in which $75,000 in non-pecuniary damages was
reduced to $55,000 by consent on appeal.  The plaintiff suffered soft tissue
injuries with chronic pain and depression.  The trial judge was “satisfied that
the resolution of her pain from her injury [which has persisted for two years]
will not occur for some time and not until her depression is resolved”.

b)    Middleton v.
Morcke
, 2007 BCSC 804, in which $60,000 was awarded for non-pecuniary
damages.  The plaintiff suffered soft tissue injuries in two accidents.  She
had generalized pain, sleep disturbance and a major depressive episode.  The
accident had affected her relationship with family and friends as well as her
memory and concentration.  She was not expected to make a complete recovery.

[31]        
The plaintiff’s life has been drastically changed for the worse as a
result of the car accident of four years ago.  There has been episodic
improvement in her condition but a return to her previous condition is unlikely
and she will probably live for many years with chronic pain and with a form of
depression.  The injuries have had a major effect on her social life.  Her
capacity to continue working will be adversely affected, robbing her of one of the
principal sources of pleasure in her life.  I award the plaintiff $120,000 in
non-pecuniary general damages.

Mitigation

[32]        
The defendant submits:

a)    the plaintiff
has not taken advantage of the psychological counseling available to her
through her employment and has not followed the advice of Dr. McKenzie to
be “formally assessed” for her anxiety and depression;

b)    the plaintiff
has failed to follow an exercise program which have been showing gains in her
condition particularly in its early stages; and

c)     the
plaintiff ought to have made greater efforts to obtain a family physician to
manage her care more efficiently.

[33]        
The onus is on the defendant to demonstrate the plaintiff has failed to
act reasonably to overcome the effects of her injuries.  Notwithstanding that
some of the criticisms of the plaintiff’s conduct in this regard have merit, I
am not satisfied the defendant has met that burden.

[34]        
The plaintiff points out that she had 23 physiotherapy treatments, 87
chiropractic treatments, 20 massage therapy treatments, did some home
exercises, “tried yoga”, “tried to remain active” and used many analgesics for
her pain and other medications for sleep.  I agree with the defendant that most
of the physical therapy the plaintiff has undertaken has been passive and I
agree that her exercise has not been consistent.  I agree the plaintiff ought to
exercise more and has done less than might have been helpful for her recovery.
I also agree a psychiatrist may have been helpful and I agree the plaintiff has
not vigorously sought out a family doctor.  However, despite those criticisms
in my view the plaintiff’s primary focus since the accident has been to
preserve her employment.  She has clearly become anxious at times that she will
lose her employment which is so valuable to her not only financially but also
emotionally.  That anxiety may be misplaced given the praise she receives in
her performance reviews but the plaintiff appears to be the sort of person who
inevitably will suffer that form of anxiety.  She has kept her employment and
has kept her reputation high at work but that has been achieved by an intense
and even ruthless concentration on her work to the exclusion of all else.  I
have no doubt that doing so has left her with little energy to spare for
exercise or seeking a family physician or to obtain the “assessment” suggested
by Dr. McKenzie.

[35]        
The defendant injured a person whose essential aim in life for many
years has been to excel at her work.  Her personality is such that all else
since the accident has been subordinate to that aim.  The plaintiff could have
decided to step back from the demands of work and concentrate on getting
better.  This might have been done by taking an extended leave or perhaps by
requesting only part time work.  It cannot be known if she would have recovered
further if she had chosen that path.  If she had, the defendant would be faced
with an income loss claim from the date of the accident.  By continuing to work
at the pace the plaintiff has since the accident she has mitigated her income
loss to the date of trial to zero.  The defendant cannot reasonably insist she
should have done more.

[36]        
I am not persuaded the plaintiff should be criticized for her failure to
find a family doctor.  I have only the most general evidence on what she might
have achieved in that regard with increased effort.  I have no means of knowing
if greater effort would have led to success.  Without the services of a general
practitioner the process of obtaining a referral to a psychiatrist may be more
difficult.  The evidence does not assist me in that regard.

E.       Conclusion

[37]        
My conclusions are as follows:

1.     The
negligence of the defendant is the sole cause of the plaintiff’s loss and
damage.

2.     Non-pecuniary
damages are awarded in the sum of $120,000.

3.     Damages
for the cost of future care are awarded in the sum of $51,750.

4.     Special
damages are awarded as agreed at $5,717.21.

5.     Damages
for the future loss of earning capacity are awarded in the sum of $150,000.

Total: $327,467.21.

[38]        
Unless there are matters of which I am unaware the plaintiff is entitled
to her costs on Scale B.

“Affleck J.”