Mudry v. Minhas, 2010 BCSC 637

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mudry v. Minhas, 2010 BCSC 637 Date: 20100505 Docket: 07-4684 Registry: Victoria Between: Amanda Mudry Plaintiff And Kirpaljit Kaur Minhas and Amarjit S. Minhas Defendants Before: The Honourable Mr. Justice Kelleher Reasons for Judgment Counsel for the Plaintiff: K.D. Priddle Counsel for the Defendant: M.J.C. Smith Place and Date of Trial: Victoria, B.C. March 22 - 26, 2010 Place and Date of Judgment: Victoria, B.C. May 5, 2010 [ 1 ] This is an action for damages arising from a motor vehicle accident. It is brought under Rule 68.

The plaintiff alleges the defendants were at fault and that she suffered injuries as a result. [ 2 ] The defendants’ position is that they should not be found at fault for the accident. In the alternative, they argue that there was contributory negligence on the part of the plaintiff. [ 3 ] The defendants say that if any blame attaches to them, the evidence does not establish that the plaintiff suffered damages as a result of the collision. In the alternative, any injuries suffered were minor. The Accident [ 4 ] The collision occurred in the early afternoon of December 30, 2005.

It was raining lightly at the time. [ 5 ] The plaintiff testified that she was driving west on Fourth Street in Nanaimo. She had left her home and was proceeding to visit a friend. That portion of Fourth Street where the accident occurred is on an incline. The plaintiff was driving uphill. [ 6 ] In front of her was the vehicle owned by the defendant Kirpaljit Kaur Minhas and driven by the defendant Amarjit S. Minhas. The defendants’ vehicle was travelling in the same direction. Ms.

Mudry’s evidence is that after that vehicle passed Chesterley, the driver signalled a right turn and pulled off on to the right shoulder of Fourth Street. She testified that the vehicle was nearly entirely off the road, on the shoulder. As she recalled it, the driver’s side wheels were on the roadway and the rest of the car was off the road. [ 7 ] According to the plaintiff, Mr. Minhas then pulled into the westbound lane without signalling. He attempted to perform a U-turn. [ 8 ] The plaintiff geared down and hit her brakes.

She turned slightly to the left in an attempt to avoid the vehicle but struck the vehicle with her passenger side front bumper. [ 9 ] There was not extensive damage to either vehicle. Both were drivable. The police were not called and did not attend. [ 10 ] The plaintiff had no recollection of and was unable to describe the force of the impact in what was essentially a side-swipe collision. [ 11 ] The defendant engaged an engineer, Jonathan Gough, P. Eng., who was qualified as an expert in motor vehicle accident reconstruction. [ 12 ] Mr.

Gough examined the photographs of the damaged vehicles and the repair estimate. His analysis led him to conclude:

The disturbance experienced by the occupants of the Mudry vehicle would have consisted of jostling in their seats. The accelerations that the vehicles would have experienced would not have been significantly different from those which could occur as a result of aggressive driving manoeuvres. [ 13 ] The defendant has a very different account of the accident. Mr. Minhas testified that he was driving west on Fourth Street, returning home from shopping. He realized that he had forgotten something. He therefore decided to return from whence he came.

He decided to turn left, or south, into the parking area of a fire hall. That way, he could return east on Fourth Street. [ 14 ] Mr. Minhas testified that he signalled and brought his vehicle to a stop, waiting for the eastbound lane to clear. As he was waiting, his vehicle was struck by the plaintiff. [ 15 ] Larry Lucas was several hundred metres down the street when the accident occurred. He testified that he is not sure whether he saw the accident or simply heard the collision. He proceeded to the area of the collision and ensured that everyone was all right.

His evidence as to the events leading to the accident is not helpful. [ 16 ] I conclude that the accident occurred in the manner described by the plaintiff. I come to that conclusion for two reasons. First, Mr. Minhas’s evidence is inconsistent. In a statement to the Insurance Corporation of British Columbia, the defendant stated that he had not started his turn when he was hit from behind by another vehicle. At the trial, the defendant testified that he was likely on an angle across the westbound lane when the collision occurred. That would explain the fact that the damage was to the side of his vehicle.

That is an important inconsistency and affects his credibility. Second, and related to this, is the objective evidence of the damage to the vehicles. The fact the damage to the defendants’ vehicle was to the left rear by the tire-well and the plaintiff’s vehicle was damaged in the passenger side right front bumper, are far more consistent with the plaintiff’s version of what occurred. Finally, it is noteworthy that in the statement the defendant made to ICBC, he claimed that he was struck from behind. [ 17 ] I conclude that the defendants were 100% at fault for the accident. The Plaintiff’s Background [ 18 ] Ms.

Mudry grew up on a horse-breeding ranch outside Saskatoon. After completing high school, she applied for and was admitted to the Arts One program at Malaspina College (now Vancouver Island University). She moved to Nanaimo in the fall of 2002 to attend this school. [ 19 ] Ms. Mudry appears to have been a successful, enthusiastic, and active student. The Arts One program focuses on First Nations topics. She was an active student in this program. [ 20 ] In the summer of 2003, she worked for Saskatchewan Government Insurance.

Then in her second year she was again active, representing aboriginal students in the student union, and taking

part in fund raising. She obtained good marks in her courses. [ 21 ] In the fall of 2005, she was in her fourth year. In mid-December, a long relationship came to an end, and Ms. Mudry began to live on her own. At the end of December she returned to Nanaimo from Saskatoon where she had spent the Christmas vacation. Her plan was to graduate and apply to law school. The accident happened shortly after her flight arrived in Nanaimo.

The Plaintiff’s Condition [ 22 ] While the plaintiff had a clear recollection of the events leading up to and including the collision, she has no recollection of what happened when the vehicles collided. There is no evidence, for example, that she struck her head or injured her neck. No ambulance was called. As will be seen, the plaintiff did not seek medical help for an extensive period of time. After the accident, Ms. Mudry visited a friend. She testified that she then returned to her home, and friends came over.

She felt nauseous and began vomiting. [ 23 ] The plaintiff’s evidence is that in the period following the accident, she experienced “horrible” headaches. She was sensitive to noise and light. [ 24 ] The plaintiff’s friend, Ashley Heyland, corroborated her evidence that she was not well. Ms. Heyland said that she knew Ms. Mudry was upset by the accident, but did not think at the time that the illness was related to the accident. [ 25 ] The plaintiff testified that she mainly stayed home from school for the first two weeks of January.

She said that she attended once or twice but was not able to attend on a regular basis. [ 26 ] Melissa Matheson is a close friend of the plaintiff. She saw her a week after the accident, and testified that the plaintiff was constantly complaining of headaches. [ 27 ] The plaintiff’s vehicle belonged to her mother and was registered in Saskatchewan. On January 11, 2006, 12 days after the accident, she met with Barrie Page. Mr. Page is an adjuster who was investigating the accident on behalf of Saskatchewan Government Insurance. He interviewed her and prepared a detailed written statement.

The statement included this: “The police were not called. I was not injured.” [ 28 ] Mr. Page’s evidence is that he drafts the statement in his own handwriting and has the client review it. He then later sends it to the client for signature. [ 29 ] Ms. Mudry was shown this statement in cross-examination. Her reaction was that the statement was sloppy and inaccurate. She pointed to the misspelling of her middle name. She testified that when Mr. Page asked her if she were injured, she would have said “yes.” But she later agreed the statement to the adjuster was what she would have said to him.

That is because it was not until “February or March” that she linked her symptoms to the accident.

[ 30 ] On January 24, 2006, the plaintiff noticed blood in her vomit. She attended at the emergency ward of Nanaimo Regional General Hospital. The hospital records record her “presenting complaints.” Dr. Orla MacSweeney, the emergency physician who saw her that night, testified that her notes made at the time say that the plaintiff’s complaints were: Nausea and vomiting for three weeks. States has been vomiting dark red blood for two days. Complains of back pain and rib pain for two weeks. States fever and rigors. [ 31 ] Dr. MacSweeney treated Ms. Mudry. She testified that Ms.

Mudry made no complaint of headache, migraine, head pain, neck pain or shoulder pain. No mention was made of a motor vehicle accident. [ 32 ] Ms. Mudry testified she received intravenous therapy to rehydrate her. Tests for mononucleosis proved negative. After this visit, Ms. Mudry testified, her pain and headaches persisted. She saw her family physician for the first time on February 17. He gave her some medication for migraine. She saw him again on February 21. He suggested perhaps her wisdom teeth were the source of her difficulties. Ms.

Mudry made an appointment with an oral surgeon on February 19, and had her wisdom teeth extracted on February 24. This did not stop the headaches. [ 33 ] When the plaintiff saw her family doctor, Dr. Rogers, on February 17, 49 days had passed since the accident. She complained of headaches or migraines for “at least the last three weeks.” It had been just over three weeks since her visit to the emergency department where there had been no complaints of headache. [ 34 ] Allison Anderson is a faculty member at Vancouver Island University. She said that Ms.

Mudry was a first class student and as well played a leadership role in organizing events in the years preceding the accident. In the months following the accident, on the other hand, the plaintiff’s work deteriorated. She did not seem the same person. [ 35 ] The plaintiff’s evidence is that her difficulties have persisted. Her graduation was delayed for several months because she had to drop some courses. Then in late 2006, she began working in Old Crow, Yukon. In early 2007, she moved to Whitehorse, and in June of that year began working at the Council of Yukon First Nations as an administrative assistant.

She remained there until January 2009, when she obtained a position with the Yukon government. Ms. Mudry currently lives and works in Whitehorse. Causation [ 36 ] The key question in this case is whether the symptoms experienced by the plaintiff were caused by the motor vehicle accident. [ 37 ] Dr. James Filbey, a physiatrist, examined the plaintiff at her counsel’s request. He wrote a report dated March 17, 2008. His diagnoses were as follows: Amanda Mudry presents with a complex migraine headache diagnoses [sic] with secondary myofascial/muscular pain. The pattern is one of hemisensory dysfunction on the right.

An MRI scan of the brain is pending. [ 38 ] Dr. Filbey said this with respect to the cause of her symptoms: There is no indication that she had suffered such headaches prior to the accident. It appears as though the MVA is responsible/causative of her ongoing symptoms. [ 39 ] Dr. Filbey provided an updated report in January 2010. The wording regarding causation is almost the same: There is no indication that she had suffered such headaches prior to the MVA. It appears as though the MVA is responsible/causative of her ongoing symptoms (headaches and muscular pains). [ 40 ] Dr.

Filbey’s choice of words indicates that his conclusion is somewhat tentative. He confirmed in cross-examination that this was the case: Q Sir, I’ve - I’ve read - I am just editorializing. I’ve read tens - not hundreds - but tens - probably in excess of 50 of reports that you’ve - that you’ve authored in personal injury litigation. And in your report the language you use with respect to causation of this woman’s complaints are, I’m going to suggest to you, um, you’re stretching to find a cause. Did you have that in your - did you have that feeling in your gut when you were preparing these reports? A So I - yah.

Because I think, you know, if I could look at my wording here again. So in the first one - where are we? I agree. I put under discussion on page 4 in the first exhibit - I put there is no indication that she had suffered headaches prior to the MVA. I put it appears as though the MVA is responsible/causative of her symptoms. Q That’s not as definitive as usual is it? A. Absolutely. No. Absolutely. [ 41 ] Dr. Filbey went on to say: A ...I will often use different wording than that.

And in this case, um, I would say that it is definitely possible in this instance that there are other things that could be associated with her headaches. Um, I would say my opinion though is that it’s more likely than not that it is related to the car accident. Um, but whereas my wording in other reports would be more concrete, if you will. Q. Yes. A. What I am saying there is that I would put that at a very high more likely than not; 75, 80, 90 percent. Okay. In this case, I’m

putting this right at the 51 percent level. [ 42 ] Dr. Filbey’s opinion, then, is that his level of confidence in his conclusion is at the very minimum. He thought it barely more likely than not that the accident caused the injury. And, in forming that opinion, he was not aware that the plaintiff had told the adjuster 12 days after the accident that she had not been injured in the accident. Dr.

Filbey was not aware that the plaintiff did not complain of headaches when she attended at Nanaimo Regional Hospital on January 26, or that that was the first time she sought medical attention after the accident or that she did not mention the motor vehicle accident in that visit. [ 43 ] In assessing causation, an accurate medical and factual history is critical. The absence of an accurate history means that an expert opinion will be of limited assistance: Butterfield v.

Choufour , 2005 BCSC 179 at para. 18 . [ 44 ] My conclusion is that there is nothing more than a general temporal link between some of the plaintiff’s complaints and the accident. There is less of a temporal link if one has regard to the fact that she did not report headaches when she attended at Nanaimo Regional Hospital and that she did not in her visit to her physician in February say that headaches started any sooner than three weeks earlier. [ 45 ] In White v.

Stonestreet , 2006 BCSC 801 , Ehrcke J. discussed the possible fallacy in drawing an inference from a temporal link: [74] The inference from a temporal sequence to a causal connection, however, is not always reliable. In fact, this form of reasoning so often results in false conclusions that logicians have given it a Latin name. It is sometimes referred to as the fallacy of post hoc ergo propter hoc : “after this therefore because of this.” [75] In searching for causes, a temporal connection is sometimes the only thing to go on.

But if a mere temporal connection is going to form the basis for a conclusion about the cause of an event, then it is important to examine that temporal connection carefully. Just how close are the events in time? Were there other events happening around the same time, or even closer in time, that would provide an alternate, and more accurate, explanation of the true cause? [ 46 ] The test for causation was described by Major J. in Athey v. Leonati , 1996 CanLII 183 (SCC) , [1996] 3 S.C.R. 458: 13.

Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell , 1990 CanLII 70 (SCC) , [1990] 2 S.C.R. 311 ; McGhee v. National Coal Board , [1972] 3 All E.R. 1008 (H.L.) . 14. The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren , 1971 CanLII 24 (SCC) , [1972] S.C.R. 441 . 15.

The "but for" test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury: Myers v. Peel County Board of Education ; 1981 CanLII 27 (SCC) , [1981] 2 S.C.R. 21 , Bonnington Castings, Ltd. v. Wardlaw , [1956] 1 All E.R. 615 (H.L.) ; McGhee v. National Coal Board, supra . A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra ; see also R. v.

Pinske (1988), 1988 CanLII 3118 (BC CA) , 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff'd 1989 CanLII 47 (SCC) , [1989] 2 S.C.R. 979 . 16. In Snell v. Farrell , supra , this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v.

Woodward , [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be answered by ordinary common sense". Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. 17. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury.

There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming ( The Law of Torts (8th ed. 1992) at p. 193), a "fire ignited in a wastepaper basket is . . . caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth". As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury.

There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. [ 47 ] McLachlin C.J.C. noted in Resurfice Corp. v. Hanke , 2007 SCC 7 , [2007] 1 S.C.R. 333: 23. The “but for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present.

It ensures that a defendant will not be held liable for the plaintiff’s injuries when they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell at p. 327 per Sopinka J. [ 48 ] The plaintiff did not recall hitting or twisting her head or neck at the time of impact. She cannot recall whether her body moved on impact. The damage to the vehicles involved in the accident was minor, and no emergency services were required.

Twelve days after the accident, the plaintiff herself held the opinion that she had suffered no injuries as a result of the collision. [ 49 ] Causation does not need to be established with scientific precision. While the plaintiff does not have to show that the motor vehicle accident was the only cause, she does bear the burden of establishing on the balance of probabilities that it was a cause of her loss. [ 50 ] The evidence considered as a whole does not establish any causal connection between the motor vehicle accident and the plaintiff’s symptoms. The plaintiff’s action is therefore dismissed.

“Mr. Justice Kelleher”