Chokka v. Hanson, 2011 ABQB 99

Court of Queen ’ s Bench of Alberta Citation: Chokka v. Hanson, 2011 ABQB 99 Date: 20110311 Docket: 0110 00791 Registry: Red Deer Between: Suryamani Chokka Plaintiff - and - Donna P. Hanson and Her Majesty the Queen In Right of Canada as represented by the Attorney General of Canada and the Royal Canadian Mounted Police Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.C. Hawco _______________________________________________________ Background [ 1 ] The Plaintiff, Ms.

Chokka, was driving eastbound on 55th Street in the city of Red Deer at approximately 12:15 a.m. on May 10, 1999 when she approached a traffic light at the intersection of 55th Street and 49th Avenue. The light was green in her favour and so she proceeded through it without any concerns. Ms. Chokka did recall having heard some sirens approaching, but she believed that they were coming from the opposite direction, that is, she thought they were coming in a westerly direction along 55th Street. [ 2 ] In fact, Constable (now Sergeant) Donna Hanson, a member of the Royal Canadian Mounted Police in Red Deer was

responding to an armed robbery alarm and was approaching the same traffic light northbound from 49th Avenue. Obviously, Sergeant Hanson was proceeding against a red light. [ 3 ] Sergeant Hanson states that she had slowed her vehicle down when approaching the intersection at 55th Street and looked both ways. She says that there was no traffic coming from the left and so was keeping more of an eye on traffic which might have been coming from her right. Seeing none, she continued through the intersection without stopping and ran into Ms. Chokka. [ 4 ] As a result of the accident, Ms.

Chokka suffered injuries and claims to be entitled to general damages plus loss of income. [ 5 ] It is the Defendants’ position that Sergeant Hanson was doing everything that she could reasonably do under the circumstances. She was responding to an emergency situation; she had activated her siren and emergency lights; she had approached the intersection with appropriate caution. She had, in other words, done all that was required of her under

section 68 of the Highway Traffic Act , R.S.A. 1980, c.H-7, the legislation which was in effect at the time. [ 6 ] The pertinent sections of the Act are as follows, in part: 68

(1) Any motor vehicle equipped with a siren and being [...] (

b) used for the transportation of a peace officer in response to an emergency call or for the purpose of [...] (ii) detecting or preventing crime, may, while being so used and while the siren is being continuously sounded, (

f) be operated at a speed that is reasonable and proper having regard to (

i) the traffic ordinarily on the highway, (ii) the use of the highway, and (iii) the fact that it is being used. (

g) proceed past a red or stop signal or stop sign without stopping, and (

h) be operated at a speed that is reasonable and safe under the circumstances.

(2) If required to do so for the purpose of carrying out his duties as a peace officer, a peace officer may, notwithstanding subsection (1), (

b) drive past a red or stop signal or stop sign without stopping by only at a speed that is reasonable and prudent under the circumstances Section 103(1) states: 103

(1) A driver meeting or being overtaken or being approached from the right or left by a vehicle on which a siren is being sounded shall

(

a) drive his vehicle as closely as practicable to the right of the roadway, (

b) bring his vehicle to a stop, and (

c) remain stopped, until the vehicle sounding the siren has passed. [...] (3) Subsection (1) and (2) do not operate so as to relieve the driver of an authorized emergency vehicle from the duty of driving with due regard to the safety of all persons using the highway.

Section 178 states: 178 Nothing in this Act shall be construed to curtail or abridge the right of any person to prosecute an action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator of any motor vehicle or from the negligence of any agent or employee of the owner. Issues [ 7 ] The issues in this case are (1) whether Sergeant Hanson was driving with due regard to the safety of the Plaintiff and/or driving in a reasonably prudent manner under the circumstances; and (2) if she was not, what damages has the Plaintiff suffered?

Decision [ 8 ] Sergeant Hanson was not driving with due regard to the circumstances and was not driving in a reasonable and prudent manner at the time. [ 9 ] The Plaintiff has suffered damages in the amount of $60,000.00. Reasoning [ 10 ] I am satisfied that Sergeant Hanson simply did not see the Plaintiff approaching the intersection. She had looked to the left and saw no vehicles coming. Her attention was then directed to the right. She estimated her speed at 30 to 40 kph as she entered the intersection, having approached at speeds as high as 80 to 100 kph.

Her colleague, Corporal McCosham, estimated that her speed was no more than 40 to 50 km/hr. [ 11 ] Whether Sergeant Hanson’s speed was 30 kph or 50 kph or somewhere in between, the fact is that it was not “reasonable and prudent under the circumstances”. She had looked for approaching traffic from the left and simply did not see Ms. Chokka coming. [ 12 ] Ms. Chokka perhaps could have been more alert and proceeded with greater caution when she heard the sirens, but she had no idea where they were coming from nor how close they were. Under

section 103 of the Act , Ms. Chokka had a duty to bring the vehicle to a stop, but she did not know that Sergeant Hanson was approaching from her right. It was, in my view, up to Sergeant Hanson to exercise greater caution as she was going through a red light and as there were buildings on all four corners of the intersection. This was not a situation where both drivers were to blame for the accident. While Ms. Chokka did hear sirens, she saw no lights and did not realize that the police car was coming towards her. Sergeant Hanson had the best opportunity to avoid the accident had she kept a proper lookout. The Defendants are therefore liable for the damages which Ms. Chokka sustained.

Damages [ 13 ] I have no idea why it has taken eleven and a half years for this matter to come to trial. Because of the passage of time the evidence with respect to Ms. Chokka’s injuries was not particularly crisp. The physicians who saw her and gave evidence, Dr. Salin Esmail and Dr. John Bauman, both specialists in orthopaedic surgery, did not see her until ten years after the accident. Their personal observations were therefore long after the injuries which she sustained had occurred. Their opinions were necessarily based on what Ms.

Chokka told them had happened some 10 years after the accident and a number of reports to which I will refer in greater detail later. [ 14 ] Ms. Chokka’s initial complaint related to pain in her shoulder, neck and back. That pain was so severe that she was unable to return to work after the accident for quite some time. She had been employed part-time with the hospital in Ponoka for about one year prior to the accident. She denied suffering any pain in any area prior to the accident and denied ever having arthritis prior to the accident. Ms.

Chokka claimed that she was unable to work for the rest of 1999 and all of 2000. Indeed, she was unable to work again, because of the on-going pain, until August of 2004. [ 15 ] Dr. Esmail was called on behalf of Ms. Chokka. His report of February 3, 2009 was tendered as an exhibit (Exhibit 2). He also gave evidence. He stated that her present complaints were that she still experiences severe pain if she tries to run or scrub her floors.

She described moderate pain in nearly all other activities including showering, bathing, personal care, sitting or driving a car for a long distance, travelling, carrying heavy groceries and reaching overhead or below her waist. Even carrying light groceries or cooking and carrying out normal household duties causes her slight pain. [ 16 ] Dr. Esmail did examine earlier reports from Dr. Tadros in January 2000, Dr. Boake in May 2000, Dr. Burnham in May 2002 and Dr. Reikie in June 2002. [ 17 ] Dr.

Esmail opined that clinically her impairment could be estimated at 3% with respect to a cervical spinal problem and a lumbar spinal dysfunction, both having regard to the existence of arthritis. She suffers from osteoarthritis in the right shoulder. In his opinion, he would consider Ms. Chokka to be fit for sedentary and lighter types of activities. He thought that she would have difficulty working on a full-time basis as a nurse. [ 18 ] Dr. Esmail did conclude that Ms. Chokka had had arthritis prior to the accident and that that arthritis was aggravated by the accident.

Her neck and back pains would be attributable to soft tissue damage caused by the accident. [ 19 ] Dr. Tadros prepared a report for the Alberta Motor Association on January 25, 2000. Ms. Chokka told him that she had been discharged from her job at the Ponoka Hospital just two days after the accident but claimed to have another job available in a small home-care situation, but was unable to take that job on because of the injuries. In response to questions from Dr. Tadros, Ms.

Chokka stated that prior to the accident she had had some problems with “ankylosis to her right shoulder, which is chronic with little or no pain”. He found evidence of an old trauma to her shoulder and evidence of secondary osteoarthritis as well as moderate degenerative disc and vertebral joint disease at C5-C6 causing severe left C5-C6 osetophytic neural fouraminal impingement and mild right-sided impingement. Dr. Tadros thought that Ms. Chokka exaggerated her symptoms.

In his opinion, as of that date, she had reached maximum medical improvement and that her residual complaints were due mainly to osteoarthritic changes in her neck and shoulder. However, he went on to say that that condition was chronic and should not stop her from returning to work. [ 20 ] On April 2, 2001, Dr. Rod Riekie wrote a report for Dr. Boake wherein he stated that Ms. Chokka had significant osteoarthritis of her right shoulder and that the motor vehicle accident had only caused some aggravation of that. “The majority of the discomfort now is because of her chronic disease.” [ 21 ] On May 15, 2002, Dr.

Robert Burnham, a specialist in physical medicine and rehabilitation, wrote to Dr. L. Nishuk who had asked him to assess her. Dr. Burnham stated that Ms. Chokka was “quite definite that she had none of her current complaints prior to the accident.” Dr. Burnham reported “moderately severe osteoarthritic changes and extensive soft tissue calcification” which had been unchanged in relation to x-ray films which had been taken on May 15, 1999. He reported that she had chronic mechanical neck pain which had been “probably well established prior to her motor vehicle accident”.

As well, she had a severely osteoarthritic right shoulder which appeared to him to be long-standing and likely predated her motor vehicle accident. At that time, Ms. Chokka continued to have mild mechanical low back pain which appeared to Dr. Burnham to be soft tissue in origin. [ 22 ] On June 26, 2002, Dr. Reikie reported to the disability operations of the Canada Pension Plan that he had examined an x-ray

of Ms. Chokka’s shoulder which was done on January 20, 1999, four months prior to the accident. At that time, the x-ray showed significant osteoarthritis of her right shoulder. [ 23 ] On August 23, 2002, Dr. Burnham opined that her degenerative disc diseases involving the C3-C4 and C5-C6 and C6-C7 likely predated her motor vehicle accident but that the physical strain of the motor vehicle accident on her neck likely rendered it symptomatic.

He went on to state: “The perpetuation of her neck pain symptoms is likely due to a combination of the underlying degenerative disc disease combined with the trauma of the motor vehicle accident.” [ 24 ] The right shoulder pain and limitation of motion of which Ms. Chokka complained was related to the severe osteoarthritis of her shoulder which probably predated her motor vehicle accident.

He found it unlikely that it was asymptomatic prior to the accident but that it was conceivable that the accident aggravated the pain of her shoulder. [ 25 ] Finally, he was of the opinion that her “mild mechanical low back pain” was likely due to a combination of underlying degenerative disc disease and a soft tissue injury secondary to the motor vehicle accident”. [ 26 ] On May 15, 2002, Dr.

Burnham reported that: Without question, she has limitations due to the above conditions (neck pain and osteoarthritis to the right shoulder) that would make it extremely difficult for her to handle general nursing duties, particularly involving lifting and transferring patients. [ 27 ] On June 23, 2003, Dr. Burnham reported again to Dr. Nishuk (Ms. Chokka’s family physician) that his opinion regarding diagnosis and causation had remained unchanged.

He concluded by saying this: From a treatment perspective, I tried to emphasize to her that it is probable she will have on-going discomfort and that the best approach is to try to self-manage her pain and impairments with a home exercise program including range of motion exercises, stretching and strengthening. [ 28 ] Dr. Bauman examined Ms. Chokka on behalf of the Defendants. He had examined the reports to which I have referred. He clearly accepted that she had severe arthritis in her shoulder prior to her accident.

Her restriction in movement to her shoulder was consistent with severe arthritis and not consistent with soft tissue injury. Dr. Bauman was of the opinion that it was “totally incredible that Ms. Chokka would claim her right shoulder was completely asymptomatic prior to the motor vehicle accident given the severe degree of osteoarthritis present”. Having examined the reports to which I have referred above, as well as Dr. Esmail’s report and having examined Ms. Chokka himself, he concluded: A. Her cervical soft tissue strain has long since healed. Injuries of this nature heal in a few weeks to months.

Any aggravation of her cervical degenerative changes caused by the motor vehicle accident would have been minimal and transient. B. Ms. Chokka likely sustained a minor soft tissue strain, but such symptoms resolve over a few weeks to months. C. Ms. Chokka had severe degenerative arthritis in her right shoulder which preceded the accident. Any aggravation of this degenerative arthritis from the accident would have been minimal and transient. D. Perhaps initially following the accident, because of her back and neck symptoms, Ms.

Chokka may have been temporarily partially impaired from activities involving lifting, reaching or bending. A reasonable period of disability, to allow for soft tissue healing, would have been 2-3 months following the accident. [ 29 ] In cross-examination, Dr. Bauman conceded that the accident could have exasperated the pain in her shoulder and elsewhere. But he was still of the view that, given the nature of the injuries, she should have been able to return to work quite some time before

August 2004. [ 30 ] Ms. Chokka’s income tax return showed her earning $18,865 in 1998, $12,800 in 1999 and nothing in 2000 or 2001. In 2010, her income was $17,981, all of which was attributed to payments under the Canada Pension Plan. In 2003, she earned slightly over $8,000, again from CPP and $25,700 in 2004. [ 31 ] Counsel for the Plaintiff argue that Ms. Chokka was receiving disability payments in 2002, 2003 and 2004. She would not have been entitled to receive those payments unless she was not able to work because of her disabilities.

The Plaintiff argues that she returned to work as soon as she felt she was able to do so. The Defendants argue that the Plaintiff failed to mitigate her damages by proceeding with any type of sedentary or part-time work and nothing should be given to her for loss of income. The Defendant conceded that if I were to find the Defendants liable for the accident, there would be damages due to the Plaintiff, but that those damages would not exceed $30,000. [ 32 ] As stated, Dr. Tadros thought that Ms. Chokka could return to work as early as January 2000. In April 2001, Dr.

Reikie thought that the majority of her discomfort then was because of the chronic disease. In May 2002, Dr. Burnham concluded that Ms. Chokka still had mild mechanical low back pain which was soft tissue in origin and in August 2002, Dr. Burnham was of the opinion that the physical strain of the motor vehicle accident on Ms. Chokka’s neck probably aggravated the underlying condition. While the accident may have aggravated her shoulder pain as well, he found it unlikely her shoulder was asymptomatic prior to the accident. [ 33 ] Again, as stated, in May 2003, Dr. Burnham agreed that Ms.

Chokka had limitations due to her neck pain and should pain, but that these were only aggravated as a result of the accident. Dr. Bauman’s opinion would have us put Ms. Chokka back to work within three to four months. [ 34 ] I am satisfied that Ms. Chokka did have a pre-existing condition both in her neck and in her shoulder. The shoulder certainly could not have been free of symptoms prior to the accident. The accident may well have aggravated the shoulder, but it was always going to be a problem for her, with or without the accident.

Her neck would also have been aggravated, but it would have continued to be a problem. The other injuries which she sustained, the soft tissue type of injuries to the lower back certainly appear to be caused by the motor vehicle accident. [ 35 ] While it is quite easy to say that, given the nature of the accident, her injuries would have or should have resolved themselves within months, I am satisfied that they did not resolve themselves within that period of time. On the other hand, I am also satisfied that Ms.

Chokka’s prior existing injuries were much, if not primarily, to blame for her inability to return to work long before August 2004. In the end result, I would attribute 1½ years loss of income to the accident. Given the sketchy work history, I would set the loss of income for that period of time at $30,000. I would set the general damages at $30,000. [ 36 ] With respect to loss of housekeeping, there was not sufficient evidence presented to warrant any damages with respect to her claim for loss of housekeeping. [ 37 ] The Plaintiff is entitled to costs on the appropriate column.

Heard on the 16 th , 17 th and 18 th day of December, 2010. Dated at the City of Calgary, Alberta this 2 nd day of March, 2011.

G.C. Hawco J.C.Q.B.A. Appearances: Herbert Fielding, Q.C. Duhamel Manning Feehan Warrender Glass LLP for the Plaintiff David Stam Department of Justice Canada for the Defendants