De Leon v. Harold, 2010 BCSC 1802

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: De Leon v. Harold, 2010 BCSC 1802 Date: 20101215 Docket: 08 4264 Registry: Victoria Between: Joy De Leon Plaintiff And Betty Harold Defendant Before: The Honourable Madam Justice Power Reasons for Judgment Counsel for the Plaintiff: E. Lau Counsel for the Defendant: M.J.C. Smith Place and Date of Trial/Hearing: Victoria, B.C. September 14, 2010 Place and Date of Judgment: Victoria, B.C.

December 15, 2010 Introduction [ 1 ] This trial involves a motor vehicle accident which took place on March 30, 2007, at the intersection of Marine Drive and McKay Street in Vancouver, British Columbia, when the plaintiff’s vehicle was rear-ended by the defendant’s vehicle. [ 2 ] Liability for the accident is admitted, but the defendant, Betty Harold, denies that any injury, loss, damage or expense to the plaintiff was caused by or contributed to by the defendant. The defendant says in the alternative that if causation is established, damages should be nominal, since any injury was minor.

Circumstances of the Accident [ 3 ] On March 30, 2007, the plaintiff Joy De Leon was proceeding to work in her 1994 Ford Escort, two-door hatchback vehicle. It was a sunny day and the streets were dry. Ms. De Leon was stopped on Marine Drive near the intersection with McKay Street waiting for the light to change when someone hit her from behind. At the time of the accident, Ms. De Leon was wearing a seatbelt. In her evidence at trial, Ms.

De Leon stated that at the time of the impact she felt “a bump” and that she “was not thrown forward, but felt a bump.” She stated that she got out and checked on the ladies in the vehicle behind her, took the other driver’s vehicle information and then went to work. At the time of the accident, the plaintiff says she felt fine. The plaintiff was scheduled to work the evening shift at Lion’s Gate Hospital as a registered nurse.

It was not until later that day at approximately 7:00 p.m. at work that the plaintiff started to feel pain in her lower back and mid-back. [ 4 ] The defendant Betty Harold was 73 years old at the date of the accident. She was driving her 2001 Oldsmobile Allegra along Marine Drive with her mother in the passenger seat. She describes traffic as “stop and go” at the time. She described glancing at her mother, who was asleep at the time, and then she stood on her brake and her car “tapped” the plaintiff’s car.

She estimated that her vehicle was travelling at 2 to 3 kilometres per hour (kph) at the time of the accident. She got out of her vehicle and looked at both vehicles with the plaintiff and decided there was no damage. She did not discuss calling the police or the ambulance with the plaintiff and no emergency vehicles attended. [ 5 ] On April 5, 2007, six days after the motor vehicle accident an ICBC damage estimator Nick Johnson inspected the plaintiff’s vehicle and completed a low-velocity claim form with respect to the plaintiff’s vehicle. Mr. Johnson noted that the other vehicle had left

an outline of its front licence plate, including partial numbers in the dirt found on Ms. De Leon’s vehicle’s rear bumper. He further notedthat the rear bumper was lightly scuffed in both areas. He was able to polish off the scuff marks and he estimated and valued the cost ofrepairs at zero ($0.00). A pair of unrelated, bolt imprints suggesting an earlier unrelated impact was also noted. [6] An ICBC damage estimator also examined the defendant’s vehicle and noted no visible signs of impact and valued the costof repairs at zero ($0.00).

Injuries of the Plaintiff [7] Immediately after the accident, the plaintiff thought she was fine and continued on to work. It was on shift at about 7:00 p.m.that she began to experience pain in her lower back and mid-back. She worked as a registered nurse at the Lion’s Gate Hospital and didnot do any lifting or even push a medication cart.

She testified that there was nothing that occurred after the accident and before the painstarted that could have caused her pain and therefore she attributed the pain to the accident. [8] Although the plaintiff was scheduled to work the next day, she called in sick and took the next four days off as sick days.She called her doctor the next day, but the earliest appointment that the medical office assistant could provide was April 4, 2007. Whileshe waited to see her doctor on April 4, 2007, and to relieve her pain, the plaintiff went to see a chiropractor who was recommended toher by one of her co-workers.

She had previously seen a chiropractor after a car accident in 1998. She advised her chiropractor in anaccident history form in response to a question about residual pain or discomfort from a previous accident or injury that she had“occasional back pain but mild and relieved with stretching.” She gave similar evidence at the trial and noted that the pain from the1998 accident was more on the left side and that the pain from the 1998 accident was resolved within “a couple of years” which I took tomean by 2000.

She was clear in her evidence at trial that any back pain prior to the current accident was different and was occasional andrelieved by stretching. [9] After the accident the plaintiff continued to visit the chiropractor for eight to nine visits, until approximately mid-May whenshe decided the pain was not severe enough to warrant further therapy. [10] The plaintiff visited her doctor, Dr. Helen Vorobeychik on April 4, 2007, and April 18, 2007, relating to the accident, and onAugust 27, 2008, for a review of the motor vehicle accident. Dr. Vorobeychik’s medical opinion was filed as an exhibit at the trial andDr.

Vorobeychik testified at the trial. In

summary, Dr. Vorobeychik was of the opinion that the plaintiff sustained soft-tissue injuries toher neck and back. At the visits, the plaintiff had complained of upper and mid-back pain and she was advised to start therapy, take anti-inflammatory medications and take a week or two off work. In her evidence at trial, Dr. Vorobeychik was not troubled by the fact thatthere were no objective symptoms of injury and Dr. Vorobeychik described soft-tissue injuries as a “personal, how-you-feel kind ofpain.” Dr.

Vorobeychik noted that the plaintiff did not have the complaints of pain before the accident. [11] In addition to the chiropractic treatments, the plaintiff visited a massage therapist for eight to nine visits again until mid-Maywhen she was of the view that the pain was no longer severe enough to warrant the visits.

In summing up the pain from the accident theplaintiff stated in her evidence “It wasn’t really that long, I would say within a couple of months I was fine, but I would have occasionalback pain for within six months.” [12] The plaintiff’s common-law husband, Shawn Sullivan, testified at the trial about the impact of the accident on the plaintiff.He testified that after the accident he noted that the plaintiff was tired and prior to the accident they would walk their two dogs togetherevery day, but after the accident he would walk the two dogs alone. He couldn’t say how long he walked the dogs by himself.

Analysis on Causation [13] The defendant submits that causation has not been established on a balance of probabilities and points to the fact that there isno real damage to the vehicle, the lack of objective symptoms in the medical evidence and no mechanism of injury, the fact that therewas some pre-existing back pain, and the fact that the plaintiff got pregnant shortly after the accident and that the back pain could havebeen attributable to the pregnancy. [14] In Lubick v. Mei [2008] B.C.C.A.

No. 777, Macaulay J. stated at paragraph 5: [5] The courts have long debunked the suggestion that low impact can be directly correlated with lack of compensable injury. InGordon v. Palmer (BC SC), [1993] B.C.J. No. 474 (S.C.), Thackeray J. as he then was, made the following commentsthat are still apposite today. I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is the philosophy that the InsuranceCorporation of British Columbia may follow, but it has no application in court.

It is not a legal principle of which I am aware and I havenot heard it endorsed as a medical principle. He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies thatsome would impose on the judicial process.” In particular he noted that there was no evidence to substantiate the defence theory in thecase before him. . . . [15] In Dao v. Vance 2008 BCSC 1092 Williams J. stated: [18] This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent.

All ofthe evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there isreason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is,it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle isslight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slightforce, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result insignificant physical damage to the automobiles.

Nevertheless, I do not accept that there can be no injury where there is no physicaldamage to the vehicles. [16] In this case, I am satisfied on the balance of probabilities that the plaintiff’s injury was caused by the accident. The plaintiffpresented in evidence as forthright and credible and was not prone to exaggerate the nature of the accident or her injuries. Immediatelyafter the accident she thought that she was fine but she began to experience back pain within a few hours by 7:00 p.m. that evening andattributed the pain to the accident.

I am satisfied that the temporal link is sufficient to draw that conclusion. She reported the accident toher doctor the next day and saw her doctor as soon as she was able to, within five days of the accident. She was active in her owntreatment plan by initiating chiropractic treatment even before she saw her doctor, and she continued to pursue chiropractic and massagetherapy as recommended by her doctor as part of her recovery.

It is clear to me from the evidence that the plaintiff’s own medicalknowledge as a registered nurse assisted her in being proactive about her own treatment, minimizing the recovery period for the injury.Although she was encouraged to take one to two weeks off work, the plaintiff took four days off work which she felt she needed. Theplaintiff was stoic and practical in her approach to the resolution of her injury. [17] I am satisfied that the evidence of Dr. Vorobeychik supports the testimony of the plaintiff. I do not find that Dr.

Vorobeychikacted as an advocate for the plaintiff but rather was forthright and credible in her description of the injury and treatment. I accept theevidence of Dr. Vorobeychik that she would not expect to see objective evidence in a soft-tissue injury case. I am satisfied that althoughDr. Vorobeychik was clearly a very busy general practitioner, she was aware of the important facts surrounding the accident includingthat the collision was a low-speed collision.

She formed her opinion based on the subjective report of the plaintiff including the fact thatthe plaintiff did not have complaints before the accident and that the plaintiff was extremely upset, and found it difficult to manage afterthe accident. I am satisfied that the pregnancy of the plaintiff which was diagnosed in July 2007, did not cause the injury and that theprevious accident in 1998, or any other incident was not the cause of the injury reported. [18] In

summary, I am guided by the words of Kelleher; J. in Mudry v. Minhas 2010 BCSC 637 paragraph 49: [49] Causation does not need to be established with scientific precision. While the plaintiff does not have to show that the motorvehicle accident was the only cause, she does bear the burden of establishing on the balance of probabilities that it was the cause of herloss. [19] I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as theresult of the accident.

I am satisfied that the injuries were substantially resolved within two months of the accident as the result of theplaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completelyresolved within six months. Damages [20] The plaintiff submits that she should be compensated in the range of $9,000 to $15,000 for non-pecuniary pain and suffering.The defendant argues that the damage award should be nominal and that the range is $1,000 to $2,000. The plaintiff cited Lubick v. Mei(supra) ($18,000); Dao v. Vance (supra) ($9,000); Dodson v.

Gallo 2007 BCSC 1504 ($15,000); Munroe v. Thompson 2009 BCSC 348($9,000); Darji v. Regimbald 2006 BCSC 834 ($12,000). [21] The defendant relied on Cook v. Webb 2004 BCSC 453 ($1,000); Way v. Firgon 2001 BCSC 573 (a total of $3,500 for twoaccidents); Gibson v. Saran 2003 BCSC 296 ($4,000). [22] Having regard to the fact that each award must be based on the unique circumstances of the case, and that the plaintiff’sstoicism is a factor that should not penalize the plaintiff (Giang v.

Clayton 2005 BCCA 54 , 2005 B.C.J 163 2005, (B.C.C.A.)),I am of the view that an appropriate award for the plaintiff’s non-pecuniary damages in this case is $12,000. The plaintiff will beawarded $1,200 for four days of lost work as the agreed-to amount of the parties for special damages. [23] Therefore the total damage award is $13,200. Costs may be spoken to or written submissions may be made at the agreementof the parties. “J. Power, J.”The Honourable Madam Justice Power