IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:  20150709

Docket: M141335

Registry:
Vancouver

Between:

Joseph Sequeira

Plaintiff

And

Christopher
Higgins and Can-Co-Operative Auto Network
dba Modo Carsharing

Defendants

(Subject
to Rule 15-1)

Before:
The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(From Trial)

[1]
This is an action for damages arising out of a motor vehicle accident on
May 5, 2012 at the intersection of Inverness Street and West 41st Avenue
in Vancouver.  The negligence of the Defendant, Christopher Higgins is admitted.
The only issues are to the extent that the injuries suffered by Mr. Sequeira
continued after August of 2012 and the damages available to Mr. Sequeira
as the result of the negligence of Mr. Higgins.

BACKGROUND

[2]
While Mr. Higgins initially took the position that the vehicle
driven by Mr. Sequeira hit his vehicle from behind, Mr. Higgins was
subsequently forced to admit that his vehicle had backed into the front of the
vehicle of Mr. Sequeira.

[3]
At the time of the accident, Mr. Sequeira was 81.  It is easy to
come to the conclusion that Mr. Sequeira is a remarkable man who is
extremely confident and optimistic.  Mr. Sequeira trained as a heavy duty
mechanic and worked in that capacity until he retired.  He remained in
exceptionally good physical shape including working as a fitness instructor in
his 60’s, a job he continued for nearly 15 years and starting karate at age 73
and earning his black belt at age 78.  Mr. Sequeira testified that, while
working as a fitness instructor, he would arrive early at work and would
exercise between one hour and one and half hours a day.  While this exercise regimen
at the gym ceased when he was no longer working as a fitness instructor, Mr. Sequeira
testified that he continued to do exercises at home.  Just prior to the
accident, Mr. Sequeira had stopped practising karate.  Mr. Sequeira
was also active in dancing with his spouse but this also ended prior to the
accident.  I find that he was an extremely healthy 81 year old man at the time
of the accident and that he was able to manage all aspects of his life without
pain or difficulty.  I also find that, he was free from any back or hip pain.

[4]
Mr. Sequeira testified that the collision caused “such force” that
he thought the whole front of his car was smashed.  Despite that description, the
damage to his vehicle was limited to “minor paint scuffing to front cover at
left side of license plate area” with a total cost to repair of $469.49.  Mr.
Sequeira testified that he was thrown forward as a result of the impact and
that his thumb and hand impacted into the steering wheel.  At the accident
scene, Mr. Sequeira testified that his thumb and hand began to ache and
his chest hurt.  He testified that he was very shaken and that, after
exchanging information, he decided to go home to rest.  Mr. Sequeira did
not feel there was a need to attend a hospital.

[5]
At home, Mr. Sequeira testified that his whole body began to hurt,
his neck ached, his hip was painful from his foot being positioned on the brake
of the car, and he developed a headache.  In the week following the accident, I
find that Mr. Sequeira was having trouble sleeping, his hand was aching
and swollen which made it difficult for him to write, his ribs hurt, and that
he had to rest rather than resume his regular schedule.

(a)
Medical Treatment

[6]
Mr. Sequeira was delayed in seeing his family doctor until May 10,
2012.  In her December 3, 2013 medical legal/report, Dr. Condon states
that the symptoms of Mr. Sequeira were of “upper back pain which came on the
night of the accident, swelling and pain of his right hand, and right buttock
pain”.  On examination Dr. Condon  found that there was restricted range of
motion of his cervical spine to approximately 50% in all directions, tenderness
and muscle spasm in his upper back, and a swollen first web space in his right
hand with tenderness but a good movement of his thumb and fingers.  Physiotherapy
was recommended.

[7]
Mr. Sequeira saw Dr. Condon until September 27, 2012 but
then not again until April 9, 2013.  From the clinical records of Dr.
Condon, I note the following:  (a) “Headache persisted pain right thumb cannot hold a pen and
write.” (May 24);  (b) “Thumb better.  Shoulder 50% better.  Right buttock
area better but still painful.” (July 4);  (c) “Right buttock area remains
painful.  Thumb and shoulder are better.” (July 9);  and  (d) “Feels 100
[better]” (September 27).

[8]
In her December 3, 2013 opinion, Dr. Condon made this
statement regarding the July 4, 2012 appointment:

Mr. Sequeira reported that his thumb and right buttock
area were better as was his shoulder.

His symptoms continued to
improve.  The most persistent symptom was the pain in his right buttock and hip
area…

(b)
Physiotherapy Treatment

[9]
Mr. Sequeira commenced physiotherapy at Trealor
Physiotherapists (J.D. Snip) on May 11, 2012.  The reports of Mr. Snip are
in evidence and include the following:  (a) “Reports right side sharp pain into right buttock.  Constant
headaches low grade” (May 18);  (b) “Lower back on right side into buttock
pain walking and sitting.” (June 8);  (c) “All areas improving except
right lower back/buttock” (June 27);  (d) “Still feels low back &
flare up with left wrist/thumb” (July 6);  (e) “Reports wrist & thumb
improved of symptoms.  Upper back minor soreness” (July 13);  (f) “Reports
improving but still low back on right side pain with prolonged walk” (July 27);
and (g) “Right hip pain increased” (August 27).

[10]
Mr. Sequeira had continued physiotherapy treatment on a weekly
basis.  On the basis of the evidence of Mr. Snip, I find that Mr. Sequeira
exerted full effort and reported improvement from his treatment.  Mr. Snip also
testified that Mr. Sequeira would almost always say that he was “doing
well” at the beginning of each treatment session but that, once the treatment
began, he would observe that Mr. Sequeira was experiencing pain and stiffness.
While he was not discharged from treatment at his physiotherapist, Mr. Sequeira
did not return to physiotherapy until April 2, 2014.

[11]
However, I find that Mr. Sequeira continued to perform the
stretching and exercises that had been recommended by Mr. Snip.

[12]
When he returned to physiotherapy in April of 2014, Mr. Snip testified
that Mr. Sequeira presented with the same symptoms in the same areas as
were being treated in the Summer of 2012.

(c)
The Spouse of Mr. Sequeira

[13]
Mr. Sequeira’s partner was 11 years older than he was so that she
was 89 at the time of this accident.  On May 24, 2012, she had fallen and hit
her head requiring her to be taken to hospital by ambulance.  She remained in
hospital for three months before she was discharged.  Mr. Sequeira testified
that he remained in hospital often sleeping in the hospital bed next to her and
that he would leave for short periods to attend physiotherapy which was located
a short distance from the hospital.  I accept that testimony and make that
finding.

[14]
When his partner returned home in late August 2012, I find that Mr. Sequeira’s
attention changed to focus on her care.  While Dr. Condon had recommended
that she be put in a care facility as the task of caring for her was too much
for Mr. Sequeira to handle, he refused.  Mr. Sequeira commenced what
he referred to as 24 hour care of her.  Mr. Sequeira testified that he was
required to do everything for her including bathing her, taking her to the
bathroom, cleaning her afterwards, helping her walk, giving her medication, and
cooking for her.  I accept the testimony of Mr. Sequeira that, when it was
necessary for him to leave the house, he would hire the services of a neighbour
to watch over his partner.

[15]
In mid‑2013, her condition deteriorated and she was experiencing
dementia.  When it became impossible for Mr. Sequeira to continue to care
for her, his partner was readmitted to hospital where she remained for four
months until her death on October 10, 2013.  I accepted the testimony of Mr. Sequeira
that he spent every night with her in the hospital until she died.

[16]
I accept the testimony of Mr. Sequeira that he was devastated by
her death as she has “saved his life”.  After Mr. Sequeira lost his son to
an accident and lost his house as a result of the separation and divorce from
his former wife, Mr. Sequeira ended up living on the street for three
years.  I find that, due to his faith and his determination, Mr. Sequeira
was able to re-establish himself when he met Mary who he described as “the love
of his life”.  I have no hesitation in coming to the conclusion that he had
less interest in the physical problems caused by the accident than for his need
to care for Mary on a 24 hour basis.  I accept this explanation and find that the
need to care for his partner was the cause of Mr. Sequeira not continuing the
physiotherapy between August 24, 2012 and April 2, 2014 and not seeking medical
attention from Dr. Condon between July 4, 2012 and April 9, 2013.

[17]
I also find that Mr. Sequeira was devastated by the death of Mary
and that he decided to get away so that he left for India to visit his family.

(d)
Return to Canada in February, 2014

[18]
Mr. Sequeira returned to Canada in February of 2014.  At that time, he
moved from Vancouver to Surrey.

[19]
Between April 2, 2014 and November of 2014, Mr. Sequeira attended
physiotherapy with Mr. Snip on a weekly basis.  The records of Mr. Snip
indicate the following:  (a) Ongoing lower back & hip right issues since MVA” (April 2, 2014);
and (b) “Reports doing well is still noticing some right hip discomfort”
(September 14, 2014).

[20]
In November of 2014, Mr. Sequeira returned to India to visit his
brothers who were in failing health.  While there, he undertook physiotherapy
treatment on 15 occasions.  Mr. Sequeira returned from India in March of
2015 and, while he reported improvement with his pain and stiffness and that he
was determined to get on with his life, he testified that his pain and
stiffness continue.

[21]
Mr. Sequeira returned to karate in June of 2015 although only as a
holder of a white belt due to his limitations.  Mr. Sequeira has also returned
to physiotherapy with Mr. Snip on a weekly basis.

[22]
Dr. Condon saw Mr. Sequeira on April 9, 2013 and she noted: “At
that time the most persistent symptom was the pain in his right buttock and hip
area…”.  Dr. Condon also noted:

On June 5, 2013, Mr. Sequeira
told me he had purchased an exercise ball and the exercising and stretches on
the ball were beneficial.  His hip pain was improved when seen on July 15, 2013
although he had residual tightness mentioned at his August 29, 2013 visit,
and again at his most recent visit on October 24, 2013.  At that last
visit, I prescribed an anti-inflammatory to see if it would relieve his
residual pain.  I did go over his stretching routine with him and it appeared
to be appropriate.

In her March 20, 2015 opinion, Dr. Condon
made the following comments:

(a)     “buttock
pain exacerbated by walking” with an x-ray showing a “tentative diagnosis of
bursitis (February 24, 2014);

(b)     a bone
scan done on March 13, 2014 “showed mild to moderate increased activity in the
inferior aspect of the right SO L joint suggestive of degenerative change”

(c)     an
x-ray of the right hip showed calcific spurring of the soft tissue insertion
into the greater trochanter” showed Mr. Sequeira stretches to help
alleviate his discomfort” and made a referral for physiotherapy (March 20,
2014);

(d)     an
anti-inflammatory medication to apply to the trochantic area of his right hip”
with the notation “His pain was improving” (May 1, 2014);

(e)     the
notation “he was feeling better with less low back pain” and “he was exercising
as instructed by the physiotherapist (July 1, 2014);

(f)      notation
“I requested that he continue for physiotherapy for his residual right hip
symptoms” (September 10, 2014);  and

(g)     notation “He was visiting the
physiotherapist as needed, and symptoms due to his right trochanic bursitis
were easing” and a renewal of the subscription for Voltaren gel (October 29,
2014).

[23]
In her March 20, 2015 opinion, Dr. Condon concluded:

In summary, Mr. Sequeira has
continued to recover from soft tissue injuries to his back, right gluteal
trochanteric area, right thumb and hand.  I would anticipate that he will
recover from the injuries sustained in this accident.  He will need to maintain
his regular exercise and stretching routine and may need occasional
physiotherapy visits.  Mr. Sequeira is a very active 83-year-old.  I do
not anticipate that the accident will slow him down or interfere with any of
his regular recreational or household activities in the long run.

POSITION OF THE PARTIES

[24]
Counsel for Mr. Sequeira submits that Mr. Sequeira suffered soft tissue
injuries of his gluteal trochanteric area, soft tissue injuries of his upper
back, contusions to his right thumb and hand, and headaches as a result of the
negligence of Mr. Higgins and, that three years after the accident, Mr.
Sequeira continues to have right hip pain and tightness, to experience
difficulty when trying to stand from a sitting position, and to limp when
having to walk or stand any length of time.

[25]
Counsel for Mr. Higgins submits that the injuries suffered by Mr. Sequeira
as a result of the negligence of Mr. Higgins, showed gradual improvement and
resolved by August or September of 2012.

CASE AUTHORITIES AND DISCUSSION

[26]
In Stapley v. Hejslet (2006) 263 D.L.R. (4th) (B.C.C.A.),
Kirkpatrick JA on behalf of the majority outlined a number of factors to be
considered when assessing non-pecuniary damages:

The inexhaustive list of common factors cited in Boyd [Boyd
v. Harris (2004), 237 D.L.R. (4th) 193 (B.C.C.A.)], that influence an award
of non‑pecuniary damages includes:

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, 2005
BCCA 54 (B.C.C.A.)). (at para.46)

[27]
Regarding the age of Mr. Sequeira and the potential for limited life
expectancy, I adopt the statement made my Schultes J. in Mathroo v. Edge–Partington
[2015] B.C.J. No. 139 (S.C.):

I do not feel comfortable relying
on Olesik [Olesik v. Mackin, [1987] B.C.J. No. 299 (S.C.)]
to reduce the non-pecuniary damages on the basis of Mr. Mathroo’s limited
remaining life expectancy, as urged by Mr. Edge‑Partington’s counsel.  Its
applicability on that issue has been questioned by other decisions of this Court.
In Giles v. Attorney General of Canada, [1994] B.C.J. No. 3212 (S.C.)
varied on other grounds (1996) 71 B.C.A.C. 319, Mr. Justice Fraser held that
the principle described in Olesik and the golden years doctrine
essentially balanced each other out, so that advanced age should not be a
factor either way in arriving at an appropriate award.  This view was adopted
more recently in Duifhuis v. Bloom, 2013 BCSC 1180.  (at para. 96)

(e)
Non-Pecuniary Damages

[28]
On the basis of the testimony of Mr. Sequeira and the evidence of
Dr. Condon and Mr. Snip, I make the following findings of fact:

(a)      The hand and thumb pain and
swelling resolved within four months;

(b)      Headaches caused by the pain had
largely resolved within four months.

(c)      Back pain continues to be experienced
by Mr. Sequeira from time to time and is exacerbated by walking and by
standing for extended periods of time;

(d)      Right buttock pain continues and
is exacerbated by walking;  and

(e)      Right hip pain continues with
“residual tightness”.

[29]
I cannot accede to the submissions made on behalf of Mr. Higgins that
the injuries suffered by Mr. Sequeira had resolved by August of 2012.
First, that is not the opinion of Dr. Condon or Mr. Snip.  Second, I find that
the emotional turmoil caused by the medical condition of his spouse caused Mr. Sequeira
not to continue with treatment or physiotherapy even though he was continuing
to experience pain.  Third, it is just too much of a coincidence that, after Mr. Sequeira
recovered from the loss of his spouse, he sought treatment and physiotherapy for
exactly the same pain in exactly the same areas.

[30]
I find that the negligence of Mr. Higgins caused and continues to cause Mr. Sequeira
pain and suffering and that an award for non-pecuniary damages should be made
in an amount to reflect that continuing pain and suffering some three years
after the accident.

[31]
In submitting that the non-pecuniary damages of Mr. Sequeira should
be assessed at between $40,000 and $45,000, counsel for Mr. Sequeira
relies on the following decisions:

a)  Krohn v
Weidner, 2013 B.C.S.C. 767, the 64 year old plaintiff claimed for mechanical
neck pain, right rotator cuff injury, injury to left thigh, headaches, and soft
tissue pain in both wrists.  While the injuries of the plaintiff caused
physical limitations, the injuries were not severely or moderately disabling
and the plaintiff was able to carry out daily activities without problem.
($45,000);

b)  Fata v
Heinonen, 2010 B.C.S.C. 385, the 59 year old plaintiff, suffered soft
tissue injuries.  He had pain in his neck on the night of the accident and his
pain increased in the following days.  He had complaints of pain in his neck,
upper back, left shoulder, elbow, and forearm.  The pain continued and he
underwent physiotherapy and wore a splint on his wrist.  The injuries to his neck
and forearm caused some discomfort and required him to undergo treatment, but
these injuries had resolved by the time of the trial.  The injury to his
shoulder would likely continue to cause pain and limitation into the future. He
was unable to garden or complete home projects as he had before, and was unable
to do all of the activities in his retirement that he had planned. ($45,000);
and

c)  Yip v
Chi, 2009 B.C.S.C. 451, the 59 year old plaintiff suffered injuries when
his vehicle was struck from behind.  He was taken to hospital and discharged
with complaints of pain in his neck, shoulder, and knee.  His knee injury
improved quickly.  However, the plaintiff’s neck and shoulder pain persisted.
He had restricted range of motion, stiffness, pain, and difficulty sleeping.
The plaintiff underwent physiotherapy, chiropractic treatment, and took pain
medication. Because of his ongoing symptoms, he abandoned many of the recreational
activities that he had enjoyed prior to the accident. Prior to the accident,
the plaintiff suffered from degeneration and arthritis of the cervical spine.
These pre‑existing conditions were not aggravated by the accident.
($45,000)

[32]
Because counsel for Mr. Higgins submitted that Mr. Sequeira had
not established that he had suffered any permanent or long term injury and
that, in any event, his symptoms had resolved to the point that he is left with
only “minor or trifling symptoms”, counsel for Mr. Higgins submitted that
damages in the range of $7,000 to $10,000 were an appropriate range of damages
to be awarded.  In this regard, counsel for Mr. Higgins relies on the
following decisions:

a)  Saluja v.
Wise, 2007 B.C.S.C. 706, where the court found that the 35 year old plaintiff
suffered mild soft tissue injuries which, except for occasional pain, should
have resolved within three to six months.  ($3,500);

b)  Lee v. Dueck,
2012 B.C.S.C. 530, the 37 year old plaintiff was found to have substantially
recovered from her accident injuries within approximately seven months and was
left with only chronic, intermittent short-term pain triggered by certain
activities which she was capable of avoiding.  The court found that her
injuries did not significantly impact her work as a homemaker or her ability to
pursue her preferred activities.  ($5,000);

c)  Hoy v.
Harvey, 2012 B.C.S.C. 1076, the most substantial injuries were soft tissue
injuries to his neck, shoulders, and back.  The court found his neck and
shoulder injuries largely resolved within approximately seven months.  His back
substantially resolved within three month following the collision, however he
was left with flare-ups approximately once per month, which was aggravated by
bending and lifting.  These flare-ups completely resolved within approximately
one year.  The court found the plaintiff’s injuries only had a minor impact on
his life or his lifestyle.  ($7,000)

[33]
The decisions relied upon by counsel for Mr. Higgins deal with young
plaintiffs who experienced pain and suffering for periods between three and
seven months.  While the hand and thumb pain and the headaches resolved within
four months, the remaining injuries continue although I share the opinion of
Dr. Condon that the injuries suffered as a result of Mr. Higgins are not likely
to slow down Mr. Sequeira or interfere with any of his regular
recreational or household activities “in the long run”.  For a man who has been
so active in his life, pain which is “not unbearable” in his hip and on the
back of his right leg after he stands up or during short walks, is an
impairment of life which requires an award to be made of $45,000 for
non-pecuniary damages.

(f)
Future Care Costs

[34]
Mr. Sequeira is currently taking physiotherapy sessions at a cost
of $60 per session.  Dr. Condon is of the opinion that Mr. Sequeira
needs to maintain his regular exercise and stretching routine and may need
occasional physiotherapy visits.  Dr. Condon further states that
Mr. Sequeira would benefit from anti‑inflammatories from time to time
as needed.  The claim on behalf of Mr. Sequeira for future care costs is
$5,000.

[35]
Because counsel for Mr. Higgins is of the view that
Mr. Sequeira has not established that he suffered any permanent or long
term injuries and that his symptoms have resolved to the point that he is only
left with “minor or trifling symptoms”, counsel for Mr. Higgins is of the
view that no award for future care costs is appropriate.

[36]
While physiotherapy sessions are still recommended by Dr. Condon, her
March 10, 2015 opinion is that what is required for physiotherapy is on a “as
needed” basis and that Mr. Sequeira may only “need occasional visits”.  If
all of the $5,000 requested was used for physiotherapy sessions at $60/session,
a total of 83 sessions would be available.  This would allow sessions on a
monthly basis for just under seven years and on a weekly basis for a year and a
half.  I cannot conclude that this number of physiotherapy sessions fits within
what Dr. Condon has described as “occasional” and “as needed”.  I find that Mr. Sequeira
is diligently undertaking the exercise program that was recommended by Mr. Snip
so that only occasional visits are required for physiotherapy supervised by Mr.
Snip.  Accordingly, I award $1,200 for future physiotherapy sessions.

[37]
While Dr. Condon states that Mr. Sequeira would benefit from
anti-inflammatories from time to time as needed, there is no costing of
anti-inflammatories in evidence.  Accordingly, I limit the total award for
future care costs at $1,200.

(g)
Special Damages

[38]
Mr. Sequeira claims a total of $4,521.38 for special damages.
Although he does not explain how he arrived at $491.00, counsel for Mr. Higgins
submits that special damages should only be awarded for that amount.

[39]
Special damages relating to treatment at Treloar Physiotherapy include:
(a) User fees for 45 visits ($1,662);  (b) Mileage from his Vancouver home at
$.50/km ($38.40);  and (c) Mileage from his Surrey home ($2,061) for a total of
$3,761.40.  Special damages relating to treatment by Dr. Condon include:
(a) Mileage from his Vancouver home to her office ($71.20);  and (b) Mileage to
her office from his Surrey home ($574.60) for a total of $645.80.  Mr. Sequeira
also claims $114.18 as the cost of attending and the kilometres travelled to
attend the physiotherapy centre in India.

[40]
While counsel for Mr. Higgins was satisfied that it was appropriate for
Mr. Sequeira to continue to see Dr. Condon as his family doctor, it
is the submission of counsel for Mr. Higgins that Mr. Sequeira should
not have continued with Treloar Physiotherapy and that he should have found a
physiotherapist in Surrey in order to reduce the claim for mileage that is
submitted.

[41]
I have no hesitation in allowing the special damages claim for the
physiotherapy undertaken in India as well as the mileage claim for the sessions
with Dr. Condon.  Regarding the mileage claimed for the visits to Treloar
Physiotherapy, I am satisfied that it was appropriate for Mr. Sequeira to
continue to seek physiotherapy treatment from Treloar Physiotherapy.  First,
the personnel there could effectively track his program, any progress being
made and any difficulties that were resulting from what they had recommended
and demonstrated.  Second, I am satisfied that Mr. Sequeira had confidence
in Treloar Physiotherapy so that what they were recommending and the home
exercises that he was undertaking were acceptable to him.

[42]
I allow the special damages claim of Mr. Sequeira at $4,521.38 as
appropriately incurred.

SUMMARY:

[43]
As a result of the negligence of Mr. Higgins, Mr. Sequeira is
awarded $50,721.38 made up as follows:

 (a)      general
damages – $45,000;

 (b)      future
care costs – $1,200;  and

 (c)      special damages – $4,521.38.

[44]
Unless the parties wish to be in a position to speak to the question of
costs, Mr. Sequeira will be entitled to his costs as set out in Rule
15-1(15)(c).

“Burnyeat
J.”