Thind v. Krahnbiel and Thind Date:, 2003 BCPC 248

Citation: Thind v. Krahnbiel and Thind Date: 20030328 2003 BCPC 0248 File No: 99-57232 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GURINDER THIND CLAIMANT AND: HORST KRAHNBIEL and GURBINDER SINGH THING DEFENDANTS EXCERPT FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Claimant: T. Harris Counsel for the Defendants: T. Jones Place of Hearing: New Westminster, B.C.

Date of Hearing: March 28, 2003 Date of Judgment: March 28, 2003 [ 1 ] THE COURT: This is a claim for non-pecuniary damages, special damages and costs arising from a motor vehicle accident involving the claimant and the defendant which took place on December 4th, 1997. [ 2 ] Liability of the defendant has been admitted. The issues before the court are the causation of the symptoms complained of by the claimant and their quantum. Mainly it has been causation. [ 3 ] The accident resulted when the defendant pulled out of the centre left lane to go around cars ahead of him that were turning left.

As he pulled into the right-hand curb lane, the right front corner of the defendant vehicle's bumper struck the driver's side of the vehicle in which the claimant was in. I will call this the "claimant's vehicle", though it is owned by her husband. It caused a gash on the side of the claimant's vehicle. The claimant's husband was the driver and the claimant was sitting in the front passenger seat. [ 4 ] Damages to the claimant's vehicle, an Acura Integra, amounted to about $2,300. Damage to the defendant's vehicle, a Ford Explorer, amounted to about $150.

That involved scuff marks and a lateral misalignment of the front bumper. In my view, this was a significant impact. [ 5 ] The claimant's evidence as to the impact was that their vehicle was pushed laterally and actually lifted at the driver's side. The claimant's husband's evidence was that their vehicle was driven so far to the right it struck the curb. The defendant's evidence was that it was a slight bump. [ 6 ] The claimant went to see her family doctor, Dr. Parhar, on December 6th, two days after the accident, complaining of tightness, stiffness and aching in the neck, as well as tenseness in her shoulders.

On examination, Dr. Parhar found paracervical muscle tenderness, as well as decreased range of motion in the cervical spine at the extremes. By December 8th, 1997, the claimant is complaining to Dr. Parhar about headaches as well. This is two days after the first visit and four days after the accident. [ 7 ] According to Dr.

Parhar's report of May 21st, 2002, she saw him again about these symptoms on December 15th and 18th of 1997, February 10th, March 11th and 12th, September 19th, October 10th and 26th, and December 28th of 1998, January 6th, 18th and 24th, December 19th and 27th, 1999, and February 11th and July 21st of 2001. Dr. Parhar's description of the claimant's symptoms include neck pain and stiffness, headaches, lower back stiffness, especially after sitting, and decreased sleep.

He reports the claimant's complaints to him of the headaches causing her to feel tired and irritable, that the pain is worse with extra walking and that at times the neck pain radiated down her left arm.

[ 8 ] Dr. Parhar describes, on virtually all of the visits referred to above, symptoms of tenderness due to palpation, or that he found through palpation, and decreased range of motion in the cervical spine, palpable tenderness in the paralumbar region with decreased range of motion in the lumbar spine. As a result of the claimant's symptoms lasting far longer than he expected, Dr. Parhar referred the claimant for cervical spine x-rays, which were done on January 4th, 1999, and to a neurologist, Dr. Grosch, who assessed her on May 4th, 1999.

This is more than two years after the motor vehicle accident. [ 9 ] The x-rays showed a reversal of the normal spine curvature. Dr. Parhar's opinion was that this was likely due to muscle spasm. [ 10 ] Dr. Grosch provided his report, giving an opinion that the claimant was suffering from chronic pain syndrome and that it was conjectural as to how well she would do in the future. [ 11 ] Dr.

Parhar's prognosis was that the claimant would continue to suffer baseline discomfort from headaches, neck and back pain, with superimposed exacerbations, which would be expected to become less intense and frequent, but that would be dependent on the intensity of the claimant's activity. [ 12 ] Dr. Parhar has been the claimant's physician since October 1994.

He reports that prior to this motor vehicle accident, the claimant had been well with no significant health concerns. [ 13 ] The claimant testified that she can no longer participate in activities she enjoyed regularly prior to the accident, such as crafts and embroidery, and more physical activities such as bicycling, badminton and tennis.

Also, she had been an avid reader and now has difficulty spending the time reading that she used to because of the discomfort and pain that results to her neck and shoulders. [ 14 ] After the motor vehicle accident, the claimant became pregnant and gave birth to her daughter in November of 2000. Her evidence was that her pain was exacerbated during the period of the pregnancy because she was unable to take medication for her pain while she was pregnant. After her daughter's birth, the claimant testified that she had difficulty carrying her because of her pain symptoms.

This evidence was corroborated by her husband and by her father, who also were witnesses for the claimant in this case. The claimant's evidence was that her pain was, on a scale of 10, at 10 out of 10 in the initial period and by the time of trial was at about two or three out of 10. [ 15 ] There has been no real challenge to the credibility of the claimant or her witnesses.

The theory of the defence appears to be that there may be other causes of the claimant's pain and discomfort, and that causation of the claimant's headaches, neck, back and shoulder pain are murky after two to four months. [ 16 ] The defendant has also asked the court to take notice of the slight amount of damage that was caused during the collision. Well, as I have said, I did not find the collision evidence to be evidence of a slight impact. I found it to be a significant impact.

But apart from this, the case law clearly shows that this is not determinative of the degree of injury that a claimant can suffer as a result of the accident. The case law is that the court must be cautious in assessing the evidence of the claimant's symptoms where the impact was slight. But even if I were to have found the impact to be slight, which I did not, but even if I had, I find that that onus has been satisfied on the basis of the evidence, particularly that given by the medical experts, which was uncontradicted. [ 17 ] I do not find the evidence of causation to be murky at all.

I found the claimant and her witnesses, her husband and her father, and the evidence of Dr. Parhar in particular, to be credible. Indeed, as I said, their credibility was not challenged by the defendant at all on the evidence that is relevant to my decision. [ 18 ] Dr. Grosch's uncontradicted evidence is that the claimant is suffering from chronic pain syndrome, and that is a syndrome of symptoms that have lasted longer than expected; symptoms that are prolonged and which are affecting the claimant's life in a significant way. Dr.

Parhar's evidence was that the claimant, from the time she became his patient in 1994 until the date of the motor vehicle accident, had been well with no significant health concerns. There is no evidence whatsoever before the court that could possibly be a foundation for any other theory of causation as to the symptoms other than the motor vehicle accident. [ 19 ] I have no difficulty in finding that the claimant's symptoms are caused by the motor vehicle accident. Dr.

Parhar's evidence shows repeated objective evidence of the symptoms that the claimant complains of, including the remarkable fact of an x-ray showing the reversed curvature of the claimant's spine resulting from muscle spasms. [ 20 ] The onus is always on the claimant to establish its case, including that of causation. In my view, that onus has been met. It cannot be defeated by speculation without foundation as to alternative causation of the claimant's symptoms. [ 21 ] The symptoms of the claimant's injury continued at a severe level for more than two years and are still continuing on a mild to moderate level.

In view of the length of time that these symptoms have persisted, I find that the non-pecuniary damages alone would be beyond the jurisdictional limit of this court. I award $10,000 in non-pecuniary damages. The claimant will also have her costs. [ 22 ] Now, in view of that assessment, I do not think I can, or need to, go into the other damages, because the limit is the $10,000. (EXCERPT CONCLUDED)