Sidor v. Coulter Date:, 2013 BCPC 11

Citation: Sidor v. Coulter Date: 20130122 2013 BCPC 0011 File No: 41962 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: Courtney Rae Sidor aka Courtney Rae Dyck CLAIMANT AND: Daniel James Coulter and Jesse Coulter DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MCKIMM Counsel for the Claimant: M. Russmann Counsel for the Defendant: A. Burnett Place of Hearing: Vernon , B.C. Dates of Hearing: October 15 and November 22, 2012 Date of Judgment: January 22, 2013

[ 1 ] This is a claim for injuries suffered by the claimant in a minor motor vehicle accident on June 1, 2005. Ms. Sidor was driving her mother’s vehicle - a 1993 Honda Accord LX four door sedan. Her vehicle was at a full stop and Mr. Coulter’s vehicle was at a full stop behind her by a meter or two. The accident was caused when Mr. Coulter sneezed causing his foot to slip off the brake and his vehicle rolled forward striking the rear end of the claimant’s vehicle at a very low speed. In spite of that, the claimant contends that she suffered moderate, but persistent injuries.

Liability is admitted by the defendant. [ 2 ] At the time of the accident the claimant was seventeen years of age and about to graduate from high school. Apart from her studies and recreational activities, she worked part time at a local Tim Horton’s coffee shop in Vernon, B.C. She testified that she did most of the usual activities of a high school senior and in particular horseback riding occasionally when she was given the opportunity, snowboarded and ice skated regularly in the winter and enjoyed swimming and water sports in the summer.

She testified that she suffered from no other symptoms prior to the impact in question in spite of the fact that she had suffered injuries in a single car motor vehicle accident in January of that same year when she slid at a slow speed into a snow bank in her driveway. While I find that the accident in January was more serious and the injuries to her more substantial than she remembers, I accept her evidence that she had no ongoing symptoms at the time of the accident in question. [ 3 ] When Mr.

Coulter’s vehicle made impact to the rear of her vehicle, she described that her sunglasses flew off her face and the back of her head impacted the headrest. She immediately felt shock and pain and began to cry. She testified that at the time of the impact her neck hurt immediately and as the days went by she began to feel pain in her lower and mid-back. She missed some of her part time shifts at work and did not return to work. She testified that she was about to become a full time employee, but was not able to as a result of her injuries.

Her evidence with respect to her time off work was vague and unsatisfactory. When asked about time she missed at work she testified: I believe it was about a month that I missed of work. So if it was the full time hours or almost full time hours I was supposed to be getting, that would be, like, 120 hours approximately…I believe it was minimum wage so $8.00 per hour. Trans: P. 71 ll. 10-16 The parties admitted that the defendant has paid the claimant $626.35 for wages lost to date.

On the evidence that I have received and the complete lack of any supporting evidence, I find that the claimant has not proven that she has suffered any further wage loss and on that head of damages I decline to make any award. [ 4 ] Following the accident the claimant describes that she continued to suffer from serious headaches for a brief period of time. These headaches interfered with her sleep. She also complained of neck pain which started as serious and resolved over the first four to six months and then plateaued and resolved over the next eighteen months.

Similarly she began to suffer from low and mid-back pain some days or weeks after the accident and that also plateaued for a period of time resolving in approximately eighteen months. She complains that she still has low back symptoms at the time of trial that flare up when she performs certain activities, such as horseback riding, snowboarding or operating a jet ski. [ 5 ] I accept the evidence of the claimant in her descriptions of her symptoms. However it is difficult to find how it has impinged significantly on her lifestyle.

Over the years following the accident she began a career as a bartender working in Calgary, Alberta and Mabel Lake, B.C. Following that she studied to become a professional make-up artist in Vancouver for ten months.

She enjoyed three or four months of international travel with her boyfriend in New York, London and the Far East although she complained that her back hurt on the twelve hour trans-oceanic flights. [ 6 ] She worked at Holt Renfrew over the Olympic Games as a sales associate and then spent eight to ten months working as a wedding planner, bartender and yoga practitioner in a small surfing town in Mexico just north of Puerto Vallarta. Finally she returned to Vernon, B.C. where she commenced her latest career as a hairdresser.

She attends the gym five days per week, hikes, swims, paints and boats. [ 7 ] She agreed that her injuries did not stop her from pursuing any travel or employment opportunities. Rather, the real impact of these injuries was that they adversely affected her leisure activities and left her reluctant to carry out some of her earlier more physically demanding activities. When she tried to horseback ride in Mexico she suffered serious back pain.

Similarly, on the one occasion that she attempted to snowboard she suffered acute pain afterwards that has discouraged her from continuing with that activity. [ 8 ] I also accept that the injuries left her more susceptible to fatigue and pain at work. By the end of most of her shifts for several years after the accident she suffered from aches and pains that one would not expect of a young, fit person. That fatigue and pain lasted primarily for eighteen months to two years and continues from time to time to the date of trial.

I accept as well that the injury sustained in the accident has left her generally less confident about trying new physically demanding things. I have also considered that following the accident she sustained a strain to her lower back as a result of a workplace accident, but do not find that this workplace accident contributed in any meaningful way to the injuries suffered in the motor vehicle accident. [ 9 ] On the question of quantum of non-pecuniary damages, I have considered the cases referred to by counsel in their submissions.

The claimant suggests that damages for non-pecuniary loss in the range of $20,000 to $25,000 are appropriate given the long lasting effects of this injury.

The defendant suggests that the claimant suffered what is referred to as a low velocity impact and ought to receive damages in the range of $1,500 to $3,000 with a 20% reduction for failure to mitigate her damages by neglecting to do some of the treatments her physician recommended. [ 10 ] Given the long duration of some of these injuries I am persuaded that the authorities provided by the claimant more closely mirror the type of injuries described by the claimant. While I agree that this accident occurred at a very low velocity, that is not an answer to the nature of the damages sustained by the claimant.

In some cases it may reflect on the injured person’s credibility, but as I indicated earlier in these reasons I found Ms. Sidor to be a credible witness. I find that she suffered a neck injury that lasted about eighteen months. I also find that her pain in the low and mid back also resolved almost entirely in the first eighteen months. However,

when she exerted herself in more strenuous activities she suffered continuing pain. Indeed she suffered pain to the point where shesimply elected not to do certain activities rather than risk an onset of pain. [11] In my view the claimant’s non-pecuniary damages are fairly set at $18,000. She was not off work except for a matter of weeksand that was at a time when she was only working part time. In Pardanyi vs. Wilson [2004] B.C.J. No. 2697 the plaintiff suffered similarinjuries that took a great deal of time to finally resolve and the plaintiff missed three months of work.

His other injuries subsided overtime and were simply the subject of flare ups for four years post accident. His award was $20,000 in non-pecuniary loss. Similarly, inRana vs. Bopari [2007] B.C.J. No. 1734 the plaintiff suffered no time off work although her injuries sustained in a low velocity impactcontinued to seriously impact her recreational, domestic and religious activities for some years. She continued to suffer flare ups of painat the time of the trial in May 2007 some two and a half years post accident. Her non pecuniary award was also $20,000. In Taschereauvs Scarfo [2002] B.C.J.

No. 854 (B.C.S.C.) the plaintiff’s injuries consisted of a mild to moderate myofascial sprain type injury to herback that were substantially resolved over the next two years with a full recovery expected. Her non-pecuniary damages were awardedat $20,000 as well. [12] I have also considered Walker vs. Webb 2001 BCSC 216 , [2001] B.C.J. No. 218 where the whiplash injury wasdescribed as “mild” and an award of $20,000 was made even though the plaintiff had missed no work, but continued to suffer some twoyears after the accident. Ms.

Sidor’s injuries were less severe than those endured by the plaintiff in the cases cited above. [13] I also agree with the defendant that the claimant has failed to mitigate her damages. She regularly missed appointments with herphysician and failed to faithfully carry out the treatment modalities suggested to her by Dr. Cunningham. I reduce the award by 10% toreflect her failure to mitigate her damages. In the result there will be an award of $16,200 for damages for pain and suffering. [14] I am not prepared to order the defendant to pay for the costs of Dr.

Cunningham to either prepare his report or to attend for crossexamination. It became apparent through the cross examination that Dr. Cunningham has prepared an entirely unsatisfactory report forthe Court. He omitted in his report to refer to previous injuries and made statements that were clearly either incorrect or inaccurate. Forexample he failed to mention that the claimant had suffered a previous injury in the earlier motor vehicle accident in her driveway inJanuary of 2005 even though he or his office treated her for those injuries and the material was contained in his office chart.

Similarlyhis report opined that she missed six weeks of work when in fact she missed far less work. Considered in its entirety, the report wasincomplete and the Court was only left with the complete assessment of Dr. Cunningham after cross examination. [15] If the parties are not able to agree on what, if any, other costs are payable, they are at liberty to place the matter back before mefor further orders as necessary. ORDER General Damages: $18,000.00 Reduction for Failure to Mitigate 1,800.00 Damages: $16,200.00 ______________________________ The Honourable Judge McKimm